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In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing. The mere coincidence of homicide and felony is not enough to satisfy the requirements of the felony murder doctrine. It is necessary to show that the conduct causing death was done in furtherance of the design to commit the felony. Death must be a consequence of the felony and not merely coincidence.
In November, 1977, the defendants agreed with each other and with a fifth person, Eugene Edgar Weick, to seize by force a quantity of marijuana held illegally by Robert and Kathy Fitzgerald. To this end, the defendants Frank Weick, Eugene Weick and Messick armed themselves with loaded sawed-off shotguns. Then they and the defendants Jerry and Gary Connelly proceeded to the Fitzgerald residence. Messick, his shotgun hidden under his coat, was admitted to the house by Robert Fitzgerald. Once inside, Messick produced the shotgun and forced Fitzgerald into a rear room of the house. At that point, Frank Weick trained his shotgun on Fitzgerald through a window in that room. Simultaneously, Kathy Fitzgerald came out of a bedroom and observed what was occurring in the rear of the house. She returned to the bedroom and obtained a 30-30 caliber rifle. On re-exiting from the bedroom she observed Eugene Weick breaking through the kitchen door. She fired the rifle at Eugene and the bullet struck him in the face. Messick and Frank Weick retreated from the house, taking Eugene with them, and met the Connellys, who had been awaiting them in the getaway car. They placed their injured cohort in the car and fled the scene, failing to consummate the intended drug theft. Eugene subsequently died of the bullet wound he received at the hands of Mrs. Fitzgerald. The criminal charges brought against the defendants were based upon that homicide. In 1978, in a non-jury trial, the defendants were found guilty of Murder in the Second Degree pursuant to § 635(2) and Conspiracy in the Second Degree pursuant to § 512(1).
Are the defendants liable under § 635(2) for the death of Eugene?
As this Court noted in Jenkins v. State, however, "(w)ith the general trend toward mitigation in the severity of punishment for many felonies, and with the addition of many statutory felonies of a character less dangerous than was typical of most common law felonies, the irrationality and unfairness of an unlimited felony-murder rule become increasingly apparent.” Consequently, limitations were placed on the scope of the rule. One such restriction was the requirement of a causal connection between the felony and the murder. Another restraint placed on the rule by some courts was the requirement that the killing be performed by the felon, his accomplices, or one associated with the felon in his unlawful enterprise. In the development of the felony-murder rule through the common law and by statute, the latter limitation has become the majority rule.
The rule laid down in Commonwealth v. Redline clearly applies to § 635(2). That section requires that the homicide be committed "in the course of and in furtherance" of the commission or attempted commission of any felony not enumerated in § 636. Certainly the killing of a co-felon by the victim or a police officer, or the accidental killing of an innocent bystander by the victim or a police officer, can hardly be considered to be "in furtherance" of the commission or attempted commission of a felony. Indeed, the homicide in the instant case was an attempt to prevent the felony. As was stated by Chief Justice Traynor in People v. Washington: "Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony. To include such killings within section 189 would expand the meaning of the words "murder . . . which is committed in the perpetration . . . (of) robbery . . .' beyond common understanding."