King v. Commonwealth

6 Va. App. 351, 368 S.E.2d 704 (1988)



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. Death must be a consequence of the felony and not merely coincidence. The causation requirement for responsibility in a felony-murder is that the homicide stem from the commission of the felony. The malice of the underlying felony attaches to whatever else the criminal may do in connection with the felony. Therefore, the killing must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking. 


Nelson James King appealed his conviction of second degree murder under the statute. He argues that he could not be convicted of second degree murder for the accidental death of a co-felon, which occurred during the commission of a felony of possession of marijuana with the intent to distribute and their plane crashed.


Could a conviction for felony murder arise from an accidental plane crash in which a drug runner was killed, drug trafficking being the underlying felony?




The court held that because the death was not caused by an act of the felons in furtherance of the felony, defendant was not criminally liable for the co-felon's death. The court held that no causal connection existed between the felony and the killing by the plane crash. The court held that the accidental death was not a part or a result of the criminal enterprise. The court found that the co-felon, who was flying the plane, was not killed by defendant or by any act of defendant, which was in furtherance of the felony. The court held that the courts could not impute the act of killing where an accidental death resulted from fortuitous circumstances and the only connection with the felony was temporal. The court reversed and dismissed defendant's conviction for felony-murder.

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