A Brief History of the American Felony Murder Rule

THE PENNSYLVANIA MURDER GRADING STATUTE

After our American Independence a number of the new states began legislative reforms to codify the crime of murder. One of the earliest states to do so was Pennsylvania. In 1794, that state enacted a murder degree statute which divided murder into first degree capital murder and second degree murder. The Pennsylvania legislature constricted the penalty for felony murder by imposing capital punishment only for such felonies as occurred in the perpetration of arson, rape, robbery or burglary. The statute further provided that all murder in the state other than ones committed in the perpetration of one of the common law felonies specified in their degree statute was to be second degree murder.

Later the felony of kidnapping was added to the list of specified felonies for purposes of felony murder. Only first degree murder served as a basis for hanging. The Pennsylvania statute did not actually formulate a felony murder rule or define the elements of murder. Instead the statute identified participation in certain felonies as a grading element that aggravated murder liability. The statute prescribed that:

All murder, which shall be perpetrated by means of poison, or by laying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder in the first degree; and all other kinds of murder shall be murder in the second degree.

The implication of the statute is that murder in the course of one of the enumerated felonies did not require wilful, deliberate, and premeditated killing. The language of the statute does not suggest that the mere causing of death in the course of any felony was always murder. This idea is much more in line of what Lord Hale was proposing in his writings at the end of the seventeenth century and is similar to Judge Stephen’s jury instruction in the Serne case: that it would be murder only if the felonious act was known to be dangerous to life and likely to cause death. The word “deemed” in the statute implies the notion that a judge or jury could weigh the facts of the case and decide whether the conduct of an accused warranted a charge of murder for which the accused could be hanged.

The Pennsylvania statute was enormously influential, shaping homicide reform statutes in two thirds of the then existing states during the nineteenth century. Twelve states adopted Pennsylvania’s grading scheme with little or no modification, the states which adopted the Pennsylvania statute as drafted were: Virginia in 1796, Kentucky from 1798 to 1801, Maryland in 1810, Louisiana from its admission in1812 to 1855, Tennessee in 1829, Michigan in 1838, Arkansas in 1838, New Hampshire in 1842, Connecticut in 1846, Delaware in 1852, Massachusetts in 1858, and West Virginia, entering the Union with such a statute in 1863.

Another nineteen states adopted a somewhat modified grading scheme. The States that adopted the Pennsylvania statute with a somewhat modified grading scheme were: Ohio in 1815, Maine in 1840, Alabama in 1841, Missouri in 1845, Iowa in 1851, Indiana in 1852, California in 1856, Texas in 1858, New York in 1860, Kansas (entering the Union with such a law in 1861), Oregon in 1864, Nevada (entering the Union with such a law in 1864), Nebraska in 1873, Montana (entering the Union with such a law in 1889), Washington (entering the union with such a law in 1889), Idaho (entering the Union with such a law in 1890), Wyoming (entering the Union with such a law in 1890), North Carolina in 1893, and Utah (entering the Union with such law in 1896).

LATER DEVELOPMENTS IN FELONY MURDER STATUTES

The first true felony murder rule statute was passed in Illinois in 1827. The Illinois statute defined murder as unlawful killing with express malice, or acting with knowledge that the acts will or probably will result in death or great bodily harm, and felony murder. The statute added that an “involuntary killing… in the commission of an unlawful act which in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent… shall be deemed and adjudged to be murder.” Again, we see the influence of Lord Hale and not Lord Coke. Illinois’s statute is a true felony murder statute. Yet, it is not a strict liability statute in that it limits liability for an involuntary killing in the course of a felony that “tends to destroy the life of a human being.” It is not applicable to all felonies. Hale thought that it would be murder only if the felonious act was known to be dangerous to life and likely to cause death.

In 1829 a statute enacted in New Jersey included within murder killing ” in committing, or attempting to commit, sodomy, rape, arson, robbery, or burglary, or any unlawful act against the peace of this state, of which the probable consequence may be bloodshed… ” During that same year New York passed the strictest of the new felony murder rule statutes. Their statute defined murder as killing “without any design to effect death, by a person engaged in the commission of any felony.” At the end of the nineteenth century, nineteen states had adopted such differing kinds of felony murder statutes. These states were: Illinois in 1827), New Jersey in 1829, Georgia in1833, Mississippi in 1839, Alabama in 1841, Missouri in 1845, Wisconsin in 1849, California in 1850, Texas in 1857, Minnesota (entering the Union with such a law in 1858), Nevada (entering the Union with such a law in 1864), Oregon in 1864, Nebraska in 1866, though repealing the law in 1873, Florida in 1868, Colorado (entering the Union with such a law in 1876), Idaho and Montana (both entering the Union with such laws in 1889), and Utah (entering the Union with such a law in 1896).

The twentieth century began with most states having various ways for defining felony murder: predicating murder liability on implied malice, as well as a felony; predicating murder liability on dangerous felonies, sometimes called enumerated felonies, or predicating murder liability on any felony. Throughout the twentieth century and into the twenty-first century we continue to see American states defining felony murder in the same ways. The growth of felony murder in the United States had more to do with Pennsylvania’s 1794 murder grading statute than it did with Lord Coke’s notion in the seventeenth century that a death caused by an unlawful act is murder.

The felony murder rule in the United States has been more expansive than that employed in England due to the pairing of two concepts. One, the concept of felony murder itself and the ways it may be defined by statute and two, the concept of vicarious liability used to hold all co-conspirators liable for the substantive crimes committed by any one of the conspirators in the course of executing the unlawful agreement that may have led to the American felony murder rule.

Such a situation may obtain when Bonnie and Clyde decide to rob the local liquor store and they enlist Clyde’s brother Buck to drive them to the liquor store, stay outside to act as a look out and to be their getaway driver. Buck agrees. If during the robbery the store clerk reaches for his.38 revolver under the counter causing Bonnie to fire her tommy gun at him but she misses and her bullets kills an innocent patron of the store, then Bonnie, Clyde, and Buck would all be held liable for and could each be convicted of conspiracy to rob, armed robbery, and felony murder. The felony murder rule was never applied this way in England.