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Expanded much beyond cases of this kind, the category might include conduct involving a high degree of carelessness or recklessness that is nevertheless distinct from an intent to kill and more properly included within some lesser category of homicide. The question is occasionally raised whether the actor must be aware of the risk he creates, if it would be plain to an ordinary reasonable person.

Unless the actor is subject to some personal disability that accounts for his lack of awareness, it is most unlikely that he will be unaware of, rather than simply indifferent to, a plain risk so extreme that murder is in issue. In such a case, the resolution will probably depend on the jurisdiction's treatment of that kind of disability generally. If the disability is accepted as a defense or mitigation generally, then it will avoid the charge of murder; otherwise, the actor's lack of awareness will not help him.

Thus, for example, while the Model Penal Code's formulation requires conscious disregard of the risk of death, one who was unaware of the risk because he was drunk could nevertheless be found guilty of murder, because the Code elsewhere provides that self-induced intoxication does not avoid a charge of recklessness as an element of an offense.

Aside from special cases of this kind, it is probably safe to conclude that the extreme recklessness that characterizes this category of murder includes a realization of the risk.

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A lesser degree of risk, of which the actor might be unaware, would suffice for manslaughter but not murder. Felony murder. The common law crime of murder included a homicide committed by a person in the course of committing or attempting to commit a felony.


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The felon—and, according to the rules of accomplice liability, his accomplices—was guilty of murder even if he had no intent to kill or injure anyone and committed no act manifesting extreme recklessness toward human life. The origin of this doctrine may reflect the difficulty of proving specifically an intent to kill, in circumstances in which the intent to commit a felony may suggest a willingness to kill if necessary and other proof either way is lacking.

Felonies under early English law were mostly violent crimes and were in any case punishable by death. An attempt to commit a felony was only a misdemeanor, however; the felony-murder doctrine, which also applied to uncompleted felonies, did change the outcome if a homicide was committed during an unsuccessful attempt. The number of felonies has increased dramatically under modern law.

Statutory felonies include a large number of offenses that, however serious on other grounds, do not ordinarily pose great danger to life. Application of the felony-murder doctrine to them distorts the concept of murder as a crime involving a serious direct attack on the value of human life. The explanation that the intent to commit the felony "supplies" the malice aforethought merely states the conclusion. So also, stretched to its logical limits, the felony-murder doctrine would make a felon guilty of murder even if the victim were killed by someone else trying to prevent the felony, provided it were found that the commission of the felony caused the death.

In this way, it was occasionally held that when a policeman fired at felons and the bullet struck and killed a bystander, the felons were guilty of murder. Far as such a death is from the intentional killing that is the paradigm of murder, one can perhaps understand the attitude that leads to the conclusion that the felon should be liable.

If not for the felon's conduct—the commission of the felony—the victim would not be dead, accidentally or not. Since in that sense the commission of the felony is the cause of death and the felon has in any case engaged in criminal conduct, it is easy to hold him responsible for the death as well. Even so, it is not appropriate to describe his conduct as murder if he has not engaged in conduct that seriously endangers life. Murder is not simply homicide, but homicide of a particularly culpable nature because it is accompanied by defined mental states; although willingness to commit a felony is itself culpable, it is not the same as, or equivalent to, the culpability that qualifies a homicide as murder.

While the doctrine of felony murder has sometimes been extended to cases very remote from an intentional killing, the courts and legislatures have quite generally adopted rules to restrict its scope.

One restriction that responds to a large number of nonviolent statutory felonies is that the doctrine is applicable only if the underlying felony involves violence or danger to life. Sometimes it is required that the type of the underlying felony meet this requirement; or it may be enough if the commission of the felony in the particular circumstances is violent or dangerous.


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The first approach retains the felony-murder doctrine on its own terms but confines it to a more limited group of felonies; to the same general effect are requirements that the felony have been a felony at common law or that it be malum in se. The second approach may create liability in a case not covered by the first; it looks in the direction of a displacement of felony murder by a different rationale based directly on the dangerousness of the actor's conduct.

In many states that have more than one category of murder, the more serious category includes homicides committed in the course of one of a short list of particularly dangerous felonies: usually arson, rape, robbery, and burglary; commonly kidnapping; and sometimes one or two others. All other felony murders are in the less serious category. The Pennsylvania degree statute of , referred to above, made this distinction; only homicides committed in the course of the first four mentioned crimes were murder in the first degree.

The nature of the underlying felony is restricted also by the requirement that it be "independent" of the homicide.

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Otherwise, every felonious assault from which death results might be prosecuted as murder, by operation of the felony-murder doctrine. Such an outcome would obliterate the common law difference between murder and manslaughter and would treat alike homicides of very different character and culpability. Even so, the requirement of independence has been rejected in a few jurisdictions, which presumably leave it to the good sense of the prosecutor not to reach an inappropriate result. The requirement does not apply if the person who is killed is someone other than the victim of the assault. Another way of restricting felony murder places strong weight on the element of causation.

Mere temporal conjunction of the felony and death has never been sufficient for felony murder; it is necessary at least that the death would not have occurred but for the felony. Some courts have explicitly required more than "but for" causation; the death must be a reasonably foreseeable, or natural and probable, consequence of the felony and must not be attributable primarily to a separate, intervening cause. Various ad hoc rules rejecting felony murder when someone other than the felon or an accomplice actually commits the homicide or when an accomplice is killed take a similar approach, although they refer to the party who kills or is killed rather than to causation as such.

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The duration of the period during which the felony-murder doctrine applies is not uniformly defined. Our Greater Boston Criminal Defense lawyers will stand by your side throughout the entire legal process. Whether you have been arrested, are facing an arraignment, are being investigated, or are being questioned by the police, our experienced MA Criminal Defense Lawyers will vigorously defend your rights. We will stand by your side throughout the process and will fully explain all of your legal options in order to help you navigate these difficult waters.

During this free initial meeting, our skilled MA Assault with Intent to Kill criminal defense lawyers will fully explain all of your legal options and will field any legal questions you may have. All consultations are completely confidential. Our phones are answered 24 hours a day, 7 days a week. In addition to being available by phone around the clock, all emails sent to the firm receive an immediate response.

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