A Brief History of the American Felony Murder Rule

THE PENNSYLVANIA MURDER CLASSIFICATION STATUTE

After our Independence from the United States, several of the new states initiated legislative reforms to codify the crime of murder. One of the first states to do so was Pennsylvania. In 1794, that state enacted a degree of murder statute that divided manslaughter into capital murder in the first degree and murder in the second degree. The Pennsylvania legislature narrowed the penalty for felony murder by imposing the death penalty only for felonies that occurred in the commission of arson, rape, robbery, or burglary. The statute further provided that all murders in the state other than in the commission of one of the common law felonies specified in its degree statute must be second degree murder.

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

First degree homicide shall be considered as any homicide that is perpetrated by means of poison, or by stalking, or by any other kind of intentional, deliberate, and premeditated homicide, or that is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary; and all other species of homicide shall be homicide in the second degree.

The implication of the law is that murder in the course of one of the listed crimes did not require intentional, deliberate, and premeditated murder. The language of the statute does not suggest that the mother causing death in the course of any felony was always murder. This idea is much more in line with what Lord Hale was proposing in his writings in the late 17th century and is similar to Justice Stephen’s jury instructions in the Serne case: that it would be murder only if the criminal act was known to be dangerous to life and likely to cause death. The word “considered” in the statute implies the notion that a judge or jury could weigh the facts of the case and decide whether a defendant’s conduct warranted a murder charge for which the defendant could be hanged.

The Pennsylvania statute was enormously influential, shaping homicide reform statutes in two-thirds of the then-existing states during the 19th century. Twelve states adopted the Pennsylvania grading scheme with little or no modification, the states that adopted the Pennsylvania statute as written were: Virginia in 1796, Kentucky from 1798 to 1801, Maryland in 1810, Louisiana from its admission in 1812 to 1855, Tennessee in 1829, Michigan in 1838, Arkansas in 1838, New Ha Mpshire in 1842, Connecti cut off in 1846, Delaware in 1852, Massachusetts in 1858, and West Virginia, entering the Union with such a statute in 1863.

Nineteen other states adopted a somewhat modified grading scheme. The states that adopted the Pennsylvania statute with a somewhat modified qualification 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 (joining the Union with such a law in 1861), Oregon gon in 1864, Nevada (joining the Union by such act in 1864), Nebraska in 1873, Montana (joining the Union by such act in 1889), Washington (joining the Union by such act in 1889), Idaho (joining the Union by such act in 1890), Wyoming (joining the Union by such act in 1890), North Carolina in 1893 and Utah (entering the Union with such an act in 1896).

SUBSEQUENT DEVELOPMENTS IN FELONY MURDER STATUTES

The first true felony murder rule statute was passed in Illinois in 1827. The Illinois statute defined murder as wrongful homicide with express malice, or acting with knowledge that the acts will or are likely to result in death or serious bodily harm, and felony manslaughter. The statute added that an “involuntary manslaughter…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 pursuit of a criminal intent…shall be considered and prosecuted as murder.” Again, we see the influence of Lord Hale and not Lord Coke. The Illinois statute is a true felony murder statute. However, it is not a strict liability statute in the sense that it limits liability for manslaughter in the course of a felony that “tends to destroy the life of a human being.” It does not apply to all felonies. Hale thought it would be murder only if the criminal act was known to be dangerous to life and likely to cause death.

In 1829, a statute enacted in New Jersey included under murder killing “by committing or attempting to commit sodomy, rape, arson, robbery, or trespassing, or any unlawful act against the peace of this state, the probable consequence of which may be bloodshed…” During the same year, New York passed the strictest of the new felony murder rule laws. Its statute defined murder as killing “without any design to cause death, by a person engaged in the commission of any felony.” By the end of the nineteenth century, nineteen states had adopted such different felony murder laws. These states were: Illinois in 1827), New Jersey in 1829, Georgia in 1833, Mississippi in 1839, Alabama in 1841, Missouri in 1845, Wisconsin in 1849, California in 1850, Texas in 1857, Minnesota (joined the Union by law in 1858), Nevada (joined the Union by law in 1864), Oregon in 1864, Nebraska in 1866, although it repealed the act in 1873, Florida in 1868, Colorado (entered the Union with such act in 1876), Idaho and Montana (both entered the Union with such act in 1889), and Utah (entered the Union with such act in 1896).

The 20th century began with most states having various ways of defining felony murder: predicating liability for murder on implied malice as well as a felony; predicate manslaughter liability in dangerous felonies, sometimes called listed felonies, or predicate manslaughter liability in any felony. Throughout the 20th century and into the 21st century we continue to see American states define murder as a felony in the same way. The rise in felony murders in the United States had more to do with the Pennsylvania murder classification statute of 1794 than with Lord Coke’s 17th-century notion 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 combination of two concepts. One, the concept of felony murder itself and the ways in which it may be defined by law and two, the concept of vicarious liability used to hold all co-conspirators accountable for the substantive crimes committed by any of the conspirators in the course of executing the illegal agreement that may have led to the US felony murder rule.

Such a situation can arise when Bonnie and Clyde decide to rob the local liquor store and enlist Clyde’s brother Buck to drive them to the liquor store, stand outside to act as a lookout and be their getaway driver. Buck agrees. If during the robbery, the store clerk reaches under the counter for his .38 revolver, causing Bonnie to fire his submachine gun at him, but misses and his bullets kill an innocent store customer, then Bonnie, Clyde, and Buck would all be liable and could be convicted of conspiracy to burglary, armed robbery, and felony manslaughter. The felony murder rule was never applied in this way in England.