§ 24.03 Felony-Murder
[A] Common Law – At common law, a person is guilty of murder if he kills another person during the commission or attempted commission of any felony. Nearly every state retains the felony-murder rule.
Statutory Law – Under most modern murder statutes, a death that results from the commission of an enumerated felony (usually a dangerous felony, such as arson, rape, robbery, or burglary) constitutes first-degree murder for which the maximum penalty is death or life imprisonment. If a death results from the commission of an unspecified felony, it is second-degree murder. The felony-murder rule authorizes strict liability for a death that results from commission of a felony.
[C] Model Penal Code – The Code also provides for felony-murder by setting forth that extreme recklessness (and, thus, murder) is presumed if the homicide occurs while the defendant is engaged in, or is an accomplice in, the commission, attempted commission, or flight from one of the dangerous felonies specified in the statute. [MPC § 210.2(1)(b)]
§ 24.04 Limits on the Felony-Murder Rule
[A] Inherently-Dangerous-Felony Limitation – Many states limit the rule to homicides that occur during the commission of felonies which by their nature are dangerous to human life, e.g., armed robbery.
Independent Felony (or Merger) Limitation – Most states recognize some form of "independent felony" or "collateral felony" limitation. That is, the felony-murder rule only applies if the predicate felony is independent of, or collateral to, the homicide. If the felony is not independent, then the felony merges with the homicide and cannot serve as the basis for a felony-murder conviction. For example, most jurisdictions hold that felonious assault may not serve as the basis for felony-murder.
[C] Res Gestae Requirement – A requirement of the felony-murder rule is that the homicide must occur "within the res gestae [things done to commit] of the felony," which requires both:
1.) temporal and geographical proximity – There must be a close proximity in terms of time and distance between the felony and the homicide. The res gestae period begins when the defendant has reached the point at which he could be prosecuted for an attempt to commit the felony, and it continues at least until all of the elements of the crime are completed. Most courts provide that the res gestae of a felony continues, even after commission of the crime, until the felon reaches a place of temporary safety.
2.) A causal relationship between the felony and the homicide.
[D] Killing by a Non-Felon
[1] The "Agency" Approach – A majority of states that have considered the issue apply the so-called "agency" theory of felony murder, which precludes any killing committed during the commission of the felon by a person other that the defendant or his accomplices from serving as the basis for felony-murder. However, a killing by an accomplice can be imputed to others involved in the commission of the felony so that felony-murder can be charged against the non-killers.
[2] "Proximate Causation" Approach – A minority of courts apply the "proximate causation" theory of felony-murder under which a felon is liable for any death proximately resulting from the felony, whether the killer is a felon or a third party.
[3] "Provocative Act" Doctrine – A felon may be held responsible for the death of another at the hands of a third party, if the basis for the charge is not felony-murder, but instead is founded on what is sometimes termed the "provocative act" doctrine, which is simply a form of reckless homicide, e.g., a felon recklessly provokes a victim to shoot in self-defense, killing an innocent bystander.
