felony murder questions Forum

[savagecheater]

Two hypos (my prof is virtually guaranteed to ask about felony murder, conspiracy, and Provocation [hop]) - assume CL jurisdiction for #1, degreed murder hierarchy for #2

1. X burglarizes the milkman's house. Walks into the bedroom, his wife's w/ the milkman (obv). Pulls out a gun, shoots & kills the milkman (intending to kill) in heat of passion, totally enraged. Runs out with some of the goods he stole.

Now @ CL he'd be up for murder b/c he had intent to kill, but assume provocation doctrine kicks in, reasonable man wouldnt have cooled down, he didnt cool down, provocation was adequate, so he'd get it bumped down to manslaughter. Because the homicide occurred during a felony (burglary/theft), does it bump the mitigated charge right back to murder?

Or is that the right result but the wrong process by which to arrive at it?

2. X, B, G enter into a conspiracy to rob a 7-11, B supplies X and G with guns. In the process of the robbery, cashier is killed by X accidentally when he's trying to threaten him with what he thinks is an unloaded gun.

Now X gets felony murder (conduct is wanton, could use that to find 2nd degree, F-M --> 1st degree murder). Using Pinkerton, do the crimes in furtherance of the conspiracy get charged to the conspirators at the same level for all conspirators? I.e., instead of B receiving 2nd degree murder, X's F-M 1st degree charge applies instead?

Trying to wrap my head around all this.

[kalvano]

I'll try and help, but we didn't study Pinkerton.

1) As I understand it, it would still be manslaughter. Felony murder means the prosecution doesn't have to prove intent to get a murder charge, but you can still offer a defense or excuse. In this case, clear provocation that led to the killing, so mitigation.

Also, the murder was not in furtherance of the felony.

2) Under conspiracy doctrine, I think you can charge everyone with crimes committed during the conspiracy.

Also, felony murder let's you charge people with murder who were involved in the commission of the crime but didn't commit murder.

So under either doctrine, I think you can charge everyone.

And felony murder is usually the equivalent of murder one.

[Lonagan]

Two hypos (my prof is virtually guaranteed to ask about felony murder, conspiracy, and Provocation [hop]) - assume CL jurisdiction for #1, degreed murder hierarchy for #2

1. X burglarizes the milkman's house. Walks into the bedroom, his wife's w/ the milkman (obv). Pulls out a gun, shoots & kills the milkman (intending to kill) in heat of passion, totally enraged. Runs out with some of the goods he stole.

Now @ CL he'd be up for murder b/c he had intent to kill, but assume provocation doctrine kicks in, reasonable man wouldnt have cooled down, he didnt cool down, provocation was adequate, so he'd get it bumped down to manslaughter. Because the homicide occurred during a felony (burglary/theft), does it bump the mitigated charge right back to murder?

Or is that the right result but the wrong process by which to arrive at it?

I think this case could go either way. It would make a great exam question. Did X know the milk man was diddling his wife? If he thought his wife was there and broke in with the hope we would catch them in the act, that would diminish his argument for heat of passion manslaughter due to premeditation, the time necessary to go to the milkman's house, pre-existing motive to kill, etc. If, however, he was simply burglarizing the house and found his wife there by complete surprise, he would have a stronger argument for manslaughter.

As far as the felony murder in that hypo, I don't think there is a clear answer. Some jurisdictions accept burglary as a sufficient predicate offense for felony murder. Those jurisdictions would impose felony murder on burglary participants who had far less culpability than X in this case, so there is a plausible argument for disregarding his heat of passion defense. Some jurisdictions do not regard burglary as inherently dangerous enough to serve as a predicate for felony murder.

I think a key question in this case is what X was thinking when he committed the burglary.

[kalvano]

The whole point of felony murder is that you don't have to know what they were thinking.

Someone dies during commission of a pedicate felony = murder without having to prove intent.

[BioEBear2010]

Here's a real toughie.

You unlawfully enter X's house with intent to steal (ergo, burglary). When inside, you see X getting it on w/ your wife. This enrages you, and you push X pretty hard. He hits a table corner and dies. Guilty of murder? Manslaughter?

EED and F-M rule going in opposite directions . . . very annoying.

[kalvano]

Don't forget that, for felony murder, a lot of places require the killing be in furtherance of the felony.

[joobacca]

Here's a real toughie.

You unlawfully enter X's house with intent to steal (ergo, burglary). When inside, you see X getting it on w/ your wife. This enrages you, and you push X pretty hard. He hits a table corner and dies. Guilty of murder? Manslaughter?

EED and F-M rule going in opposite directions . . . very annoying.

is burglary and inherently dangerous felony? what about merger?

[kxz]

Here's a real toughie.

You unlawfully enter X's house with intent to steal (ergo, burglary). When inside, you see X getting it on w/ your wife. This enrages you, and you push X pretty hard. He hits a table corner and dies. Guilty of murder? Manslaughter?

EED and F-M rule going in opposite directions . . . very annoying.

is burglary and inherently dangerous felony? what about merger?

Depends on your jurisdiction on B&E. Merger would not trigger, since the underlying felony would be B&E instead of the manslaughter.

[Renzo]

Don't forget that, for felony murder, a lot of places require the killing be in furtherance of the felony.

Most of the analysis in this thread is missing this point. Also, the felony needs to either be inherently dangerous or dangerous as performed (depending on jurisdiction).

[vanwinkle]

Don't forget that, for felony murder, a lot of places require the killing be in furtherance of the felony.

Most of the analysis in this thread is missing this point. Also, the felony needs to either be inherently dangerous or dangerous as performed (depending on jurisdiction).

I think there are a few jurisdictions where this isn't true, but they're rare. Otherwise, completely on-point.

The way to think about it is the intent to commit the crime fills in for the intent to kill. For example, if you commit armed robbery and someone gets shot in the process, you may not have had intent for the guy to die (or even get shot at all, he may have gotten hit by someone shooting at you), but for felony murder your intent to rob the store is enough. The theory is that you intended something you knew was dangerous (this is why most states have the "inherently dangerous felony" restriction or similar) and that means you're responsible for the death even if you didn't intend it specifically.

[savagecheater]

The whole point of felony murder is that you don't have to know what they were thinking.

Someone dies during commission of a pedicate felony = murder without having to prove intent.

But that's my point - so you have intent-to-kill murder (@ CL), but HoP would mitigate to manslaughter, but then F-M kicks in. Aren't the limitations (res gestae, agency, etc.) jurisdictional? Assuming that they don't apply, I'm interested in the logical and legal process by which this gets resolved.

[kalvano]

The whole point of felony murder is that you don't have to know what they were thinking.

Someone dies during commission of a pedicate felony = murder without having to prove intent.

But that's my point - so you have intent-to-kill murder (@ CL), but HoP would mitigate to manslaughter, but then F-M kicks in. Aren't the limitations (res gestae, agency, etc.) jurisdictional? Assuming that they don't apply, I'm interested in the logical and legal process by which this gets resolved.

Murder has to be in futherance of the felony.

[vanwinkle]

The whole point of felony murder is that you don't have to know what they were thinking.

Someone dies during commission of a pedicate felony = murder without having to prove intent.

But that's my point - so you have intent-to-kill murder (@ CL), but HoP would mitigate to manslaughter, but then F-M kicks in. Aren't the limitations (res gestae, agency, etc.) jurisdictional? Assuming that they don't apply, I'm interested in the logical and legal process by which this gets resolved.

Limitations do vary by jurisdiction, and their existence (or absence) tends to be what changes the outcome here. If the exam question doesn't specify which limiting doctrine applies (exams are often in a fictional jurisdiction, or one you didn't cover in class, to make these details intentionally vague). When you hit this wall, just discuss whether it will make a difference and why, and then give an outcome (either "Thus we reach the same outcome under either rule." or "The state's limiting doctrine determines the outcome, with a felony murder conviction unlikely if agency is the limiting rule, but likely to succeed if the state uses proximate cause.") The analysis up to that point (the "why" of your conclusion) is what matters because it shows you're looking at the right things.

All you should need to know for an exam is what the law is, and if it's unclear, what it could be and when the differences actually matter. My crim law prof referred to it as a research rule; in the real world, you'd consider the facts and what you know, and hit a point where you can see which issues will change the outcome. What you want to do is show that you can tell which issues don't need research (by analyzing them to a clear conclusion) and which issues you'd spend your time researching further (by showing the different potential outcomes and the need to know which applies in this case). That is the part of the process that's important, at least for now.

[christmas mouse]

The whole point of felony murder is that you don't have to know what they were thinking.

Someone dies during commission of a pedicate felony = murder without having to prove intent.

But that's my point - so you have intent-to-kill murder (@ CL), but HoP would mitigate to manslaughter, but then F-M kicks in. Aren't the limitations (res gestae, agency, etc.) jurisdictional? Assuming that they don't apply, I'm interested in the logical and legal process by which this gets resolved.

Murder has to be in futherance of the felony.

Yea but i dont think that is the issue here. If you go inside of x's house with intent to take crap that is burglary. If x is in the house and you kill him, push him, tie him up, etc. you're conduct is in furtherance of the felony because if you dont do anything, arguably x will keep you from taking stuff so any force you use against him will be in furtherance of your burglary. So if you push him and he falls and hits the table and dies then you have FM.

The EED mitigation is interesting here because you walked in on your spouse in the act of "doing it" and reacted by pushing her lover and he died. Well without FM you were either reckless as to his death or you intended it, but seem to have a very strong case for EED. The thing is EED only applies after you have met the intentional homicide offense, but FM doesnt impute your culpability for the underlying felony to the homicide, it just works as strict liability. Because of this you cant mitigate a FM.

For the exam if I was in the role of a prosecutor I would argue for FM because that will get rid of the mitigation, if FM doesnt work I'd argue for either intentional murder (which could plausibly be mitigated to manslaughter) or reckless homicide. The thing is since all he did was shove the lover i think it will be very hard to show intent, and even if you can since EED will bring this down to level of reckless homicide it doesnt really matter if you are going for intentional or reckless murder in the absence of FM, because of this I think this question is designed for you to go for the FM.

[ogurty]

The whole point of felony murder is that you don't have to know what they were thinking.

Someone dies during commission of a pedicate felony = murder without having to prove intent.

But that's my point - so you have intent-to-kill murder (@ CL), but HoP would mitigate to manslaughter, but then F-M kicks in. Aren't the limitations (res gestae, agency, etc.) jurisdictional? Assuming that they don't apply, I'm interested in the logical and legal process by which this gets resolved.

I think your process is flawed; or at least, I've never heard of a "apply heat of passion before applying felony murder" doctrine. The question here is, does the predicate felony suffice for felony murder. Burglary is usually one of the enumerated felonies and has traditionally sufficed to convict of felony murder. But, like everyone has said, it all depends on the jurisdictional limiting rules of felony murder. Insert discussion on in furtherance, inherently dangerous felony, etc. IF the burglary suffices to convict for felony murder, the provocation becomes irrelevant, because felony murder is strict liability. If the burglary does not suffice as a predicate felony, then the prosecutor has to proceed on an intent-to-kill murder theory, and the provocation becomes relevant. Remember that prosecutors are going to go for felony murder whenever they can because of the reduced burden of proof.

As to your second question (not sure if anyone answered it) every party to the conspiracy gets M-1 under Pinkerton. If the conspiracy was not armed robbery, then the parties who didn't pull the trigger might have an argument, but no one in your hypo is getting off. Also, tweak your hypo a little and say B didn't conspire to commit robbery, only to sell guns, and the question becomes harder.

[savagecheater]

The whole point of felony murder is that you don't have to know what they were thinking.

Someone dies during commission of a pedicate felony = murder without having to prove intent.

But that's my point - so you have intent-to-kill murder (@ CL), but HoP would mitigate to manslaughter, but then F-M kicks in. Aren't the limitations (res gestae, agency, etc.) jurisdictional? Assuming that they don't apply, I'm interested in the logical and legal process by which this gets resolved.

Murder has to be in futherance of the felony.

Not always. It's a limitation that may be applied by jurisdiction, just like res gestae or if it's inherently dangerous.