The Felony Murder Rule is a doctrine in the common law jurisdictions. This
doctrine/ rule is used when an offender kills someone in the commission of a
dangerous crime (called a felony), here, the murderer, his accomplices and co-
conspirators will all be found guilty of the murder even though only one person
had actually killed.
This rule is/was used to broaden the scope of murder in
many Nations including United Kingdom, The United States, India and various
other common law nations. This rule is mainly based on the transferred intent
where the intent to hurt person one still exists even when the hurt is caused to
the second person.
However, this rule was abolished in many Nations including India in 1957 along
with the United Kingdom stating that it was a barbaric and immoral practice
where the accused are punished and imprisoned under murder even when the accused
did not commit the act. This rule is now only practised in the USA. It is also
that most of the accused of this rule does not have the mens rea/ intent to
commit the murder.
This rule was widely criticised in many nations as most of
the accused were under the age of 25 and did not have the knowledge of the
murder at all. For example, Z and X commits a bank robbery, which is a felony,
and during the commission Z pulls out a gun and seeing that an elderly person
gets a heart attack and dies on spot, Z and X will be held responsible in this
The punishment for Felony murder is as the same as the Murder in the USA, which
is 25 years to life without parole (death by incarceration) and the Death
penalty in some states. The killing can be premeditated or not, but the
accomplices will be held liable for the first-degree murder. In some of the
Jurisdictions, the criminal liability still exists even if a person other than
the felons kills the victim as was stated in the case of People v. Hernandez
where the defendants were convicted of second-degree murder.
In India, this rule was often not followed strictly. However, the rule of
felony- murder has all the components Abetting mentioned in Section 107 of the
IPC, 1860, Criminal Conspiracy mentioned in Section 120A of the IPC, 1860 and
Section 34 of IPC which states that Acts done by several persons in furtherance
of common intention. This research project aims to study more on the topic of
Felony Murder Rule from the perspective of the various nations.
The felony murder rule, first originated in the common law nation in the early
12th century and took its modern form in the late 18th centuries after the
American revolution had just ended. The modern form of the felony murder arose
when on 1806, in the Treatise of the Peas of the Crown
, Edward East has held
If the act on which death ensue [is] . . . done in prosecution of a
felonious intent, however the death ensued against or beside the intent of the
party, it will be murder.
The concept of Felony murder itself began in the
roots of the earliest common law nation of the England. The support for this
poured in from many of the lords and the scholars like William Russel, in his
treatise which was published in 1819, has mentioned that:
unlawful act, an act malum in se, is done in prosecution of a felonious
intention, and death ensues, it will be murder….
Similarly, every law has its own opponents, in the year of 1834 when the first
Bentham influenced First Criminal Law Reform Commission
found that the
law to be totally incongruous with the general principles of our jurisprudence
Because of the objection the rule was not applied properly in the courts of the
However, William Russel, pointed out a case R v. Smithies. In this
case, the accused, Ellen Twamley was found guilty of setting fire to his own
house, killing one person inside the house. A felony of Arson was committed and
he was held guilty for it, but Russel argues that even if the death of the
person inside the house was accidental, the murder could be justified based on
the recklessness rather than just a felony of Arson.
This doctrine of felony murder started to take off in the mid 1830's and more
relevant and more defined rules to define a crime by felony murder started to
come in. thus, when there was a surge in the application of the felony murder
rule in the English courts pre- dominantly in the second half of the 19th
century, it was identified as a controversial and an unjust law by Justices
Blackburn, Stephen and Bramwell. Stephen J. commented that:
A rule imposing
murder liability for accidental killing in the course of a felony such as theft
would be perfectly barbarous and monstrous.
Bramwell J., also held the rule to
and acknowledged that he will not use it. But, Blackburn J.,
was in support of the rule and gave an example where a rapist was found guilty
of the murder for smothering and killing the victim unintentionally. In view of
this criticism, in the next edition of the Russell's Treatise, he amended what
he previously said and stated:
The law appears to be that anyone who
deliberately attempts to commit a felony and thereby occasions death, is guilty
of murder. But in this respect, the law seems unreasonable .
Since India was colonised by the Britishers, the primary code which governs the
criminal activities, the Indian Penal Code was made by the Britishers with the
help of Lord Macaulay and the Indian Law commission and came into effect on
1860. Lord Macaulay was against the inclusion the felony murder rule in the IPC
and argued that the rule would be barbaric and to hold someone innocent liable
would be preposterous.
Finally, the deterrent value of the rule was interpreted
by Macaulay as:
Holding felons liable for causing deaths non- negligently can do
nothing to deter killing but can only deter felonies, and that such a punishment
lottery in an ineffective way of doing so.
In India, the rule of felony murder
was not extensively used and when in 1957, the rule was abolished in England and
replaced it with the death had to be least foreseeable and so had to be caused
with a degree of culpability amounting at least to negligence. Following this,
India also abolished the rule.
Insight into the Felony Murder Rule.
The states which do have the felony murder rule have either severely restricted
the rule or they have provided defences or loopholes which can be used
effectively to come around this rule and limit its application, because when
felony murder is talked about, it is automatically a first degree crime
(deliberately planned crime) in some of the states, which is the most serious
crime while some states state that it is a second degree crime(where no planning
is present but the intention to kill is present). Now let us look at the
factors that constitute a Felony murder.
There are the elements which are needed by the state in order for them to
convict a person under the rule of felony murder.
Intent for Felony Murder Rule
- The death of a person;
- The offenders should have tried to commit a dangerous felony;
- The death of the person should have occurred while in the process of the
felony or while fleeing away from the felony crime scene.
- During the course of the felony, the offenders should have triggered the
chain of events which had caused the death of a person.
It is of the utmost importance to notice that the felony murder does not require
for the intent to kill during a felony. The rule only requires the offender to
have an intent to commit a dangerous felony. If there is an intent present or a
premeditated intent to kill, then the provision for Murder will take place.
Thus, most of the states limit the scope of felony murder rule only to those
felonies where the foreseeability of the risk is present.
So, when a felony
takes place with an unintended death (even an accident), then the intent of the
felony will apply to the death too, this principle is called the substituted
intent. An example of the intent would be, where a person Mr. X burns down a
hotel because the owner throwed him out his suite, and many people die due to
the smoke inhalation, here his intent was only to set the building on fire, but
due to the substituted intent, he can and will be held liable for the murder of
the people who die d to smoke inhalation.
Felonies which are considered for the Rule.
The felonies should be of inherently dangerous nature and an enumerated crime.
There are various felonies which are not considered as inherently dangerous,
such as embezzling large amount of money, where there is no danger present to
another person. Some of the main felonies which also uses the rule of felony
- Sexual Assault (Rape).
These are some of the serious offences/ felonies for which the rule of felony
murder is applied.
Punishments for Felony Murder.
The Felony murder rule which is predominant in the United States of America,
regards it as a part of the homicidal acts. In most of the states where the rule
prevails, it is awarded the same punishment of a first- degree murder and in
some states, it is given the punishments of the second- degree murder. The
punishment usually varies from 25 years to life imprisonment (with not parole,
in case of first-degree felony murder).
In 27 states of America, the felony
murder is also considered as a Capital Offence and thus contains the death
penalty. But in the case of Enmund v. Florida
, the Supreme Court held:
the death penalty cannot be imposed on a defendant who only had a minor role in
the underlying felony, such as any individuals who did not participate in the
killing, or did not intend to kill during the felony.
However, in the case
where the felon has exhibited a reckless indifference to human life, then the
death penalty could be considered for the Felony murder.
Exceptions and Limitations to the Co- Felons.
Since this is an unjust law or a penalty which is laid on the person who is
completely innocent and does not deserve the punishment of a murder, many states
have exceptions to this rule, so as to the co- felon only gets what punishments
he deserves and not a superficial punishment. In common law application, each
and every piece of the fact is analysed and determined whether the co- felon
deserves the punishment of murder or not whereas in the case of the USA,
since it follows a Civil Code of the Legal System, the exception for the co-
felon liability is provided under the N.Y. Penal Law.
The merger doctrine, which states that when a person commits a felony and
fulfils the conditions of 2 or more felonies, then the offences will merge and
the crime which is of a lesser culpability will drop out and the more grievous
crime will take charge, thus effectively avoiding the double jeopardy. All the
murders and the manslaughter include some way of assault, so when a murder takes
place during the commission of a felony, then the lesser crime of assault will
be dropped and the proceeding of a murder take its place. However, when an
assault is done to one person and the death of another person occurs during the
felony, then the merger doctrine won't take place and the felons will be
prosecuted for both the crimes of assault and murder.
Liability when someone other than the defendant kills the victim
It is generally presumed under this rule that the defendants are usually guilty
of the murder in the murder take place during the commission of the inherently
dangerous felony. But in the case where the death of another person is not
caused by the felons, but rather caused by someone else during the commission of
the felony, then it was held in the case of People v. Hernandez, that both
the defendants were held liable for a murder that they did not commit.
case, they reason which was given was that the mens rea which was intended for
the felony was imputed into the killing of the person even if the final fatal
act was not done by the felons. This case held that the felony murder can be
used for any death which took place in the place where the felony took place.
Another angle from which the liability of the felon can be viewed from is when
the co- felon is killed by anyone in the furtherance of a felony, the other
felon(s) will also be held liable for the murder of the co- felon as it was
mentioned in the case of State v. Canola
Felony murder rule in different nations
The felony murder rule is one of the most maligned yet legal doctrines around
the world. This rule is called as monstrous and as an unsupportable legal
fiction. Having the criticism, it has, this rule has ceased to exist is
various countries by now and the only nation which still strictly follows this
rule is The United States of America. The felony murder rule which existed in
the England and Wales and the Ireland, where it was first established,
positively abolished the rule on the grounds that it was unjust under Section
1of the Homicide Act of 1957 in England and Wales and under the Criminal Justice
Act (N.I.), 1966 in the Northern Ireland. Although the rule was totally
established as a single unit from their law, the effect of the doctrine is still
preserved in the common law principle of Joint enterprise
, where the accused
of the crime is responsible for all that they've caused during the act of crime.
While in the Scotland, the rule of felony murder has never existed but, it has a
similar to the felony murder rule called the Art and Part
, which has the same
effect to the crime as in the doctrine of felony murder.
In the Common Law nation of Australia, the Actual rule of Felony murder does not
exist but rather they have their own form of the rule which has similar effects
of the felony murder rule. In Section 18 (1) (a) of the Crimes Act 1900
(NSW), the similar rule is called as the Constructive murder. Under this
rule, The act or omission causing death must be done in an attempt to commit or
during or immediately after the commission, by the accused, or some accomplice
with him or her, of a crime punishable by imprisonment for life or for 25
years". In the case of Ryan v. R
, the elements of a constructive
murder were laid down as follows:
- The accused should have caused the death of another person;
- In the course of or in furtherance of committing;
- A serious offence;
- The offence must have a necessary element of violence.
As we can see here, even if the doctrine of felony murder does not exist in the
Common Law nation of Australia, the constructive murder and its effects still
In Canada, a Common Law Nation, the Doctrine of felony murder was not directly
framed in their Criminal Code, however like Australia, they have a similar law
under Section 230 and 229 (c) of the Criminal Code, 1892 which has the similar
effect of the Felony murder (although not as close to constructive murder). The
main aim for the Canadian Law is to establish the proportionality of the
punishment which is related to the crime committed.
Since it is a common law
country, they are allowed to determine the result of each of the cases by
properly analysing the facts, the circumstances and the nature of the crime
committed. In the case of R v. Martineau
, the court held that the:
conviction for murder requires proof beyond a reasonable doubt of a subjective
foresight of death.
And in doing so, the Sections 230 and 229 (c) of the
Criminal code was held unconstitutional. Section 230, which largely equated to
that of the felony murder rule, stated that:
Culpable homicide when committed during the commission of a High Treason or
Treason …. whether or not the person means to cause death to any human being and
whether or not he knows that death is likely to be caused to any human being.
Since the main ingredient of the
Felony Murder rule is the Intent and the foreseeability (as mentioned in Chapter
3.2 of this paper), when the Supreme Court of Canada declared the foreseeing
aspect as unconstitutional, it means that the somewhat closer to a felony murder
rule had to be repealed. Section 229 (c), was a supplement law to Section 230
which stated that ought to know is likely to cause death
rule in the Canadian Criminal Code Law is that, the murder which takes place
during the commission of another crime is technically not called murder but they
are treated as murder with a maximum penalty for such offences as life
imprisonment for negligence, although unlike murder it is not mandatory for a
In the United States of America, the first-degree murders and the felony murders
are the most serious crimes in their hierarchy following this all other variants
of homicidal acts. The United States is the only country which still uses the
legal doctrine of the felony murder directly, without disguising it in any other
wordings. It is one of the widely criticised legal features of the American
laws. In the hierarchy of murders in the States, there are different degrees of
murders based upon their culpability.
A felony murder is considered as a first- degree murder, which has the highest
culpability. All other acts of homicide need to wilful, deliberate and premeditated
; the felony murder only requires
there to be a murder while the commission of felony is taking place. Over the
course of the history, it has been noted that the felony murders do not have any
culpability, because it was not intended by the felons and the judiciary are
negligent in their services and do not demand either side of the case to prove
the intent to kill. Being one of the most disputed doctrines in the nation,
it has been questioned and challenged at various states inside the USA, for
constitutional validity of the doctrine.
The doctrine itself is said to have originated from England after the America
had gained their independence and still continues to be a law. In the
treatise of W. Clark and W. Marshall, they had mentioned that:
At common law, malice was implied as a matter of law in every case of homicide
while engaged in the commission of some other felony, and such a killing was
murder whether death was intended or not. ... On this principle, it was murder
at common law to unintentionally kill another in committing, or attempting to
commit, burglary, arson, rape, robbery, or larceny. The doctrine has repeatedly
been recognized and applied in this country, and is to be regarded as still in
force, except where it has been expressly abrogated by statute.
While the other nations have a slightly different rule where the foreseeability
of risk should be present, in the States, an unforeseeable death arising out of
a non- dangerous felony would also be deemed ass a felony murder and
first-degree murder charge will be filed against the felon(s). The critics
attack this rule because of the modern-day evolution of law has stopped with
itself and has not been applied to the Doctrine of felony murder.
In the case People v. Aaron
, the rule was held as anachronistic legacies of morally
. Some argue that this is a perfectly viable rule which is in
operation has it prevents the commission of felonies, but what the fail to
address is that a legal system of a country will never move forward when the
innocents are the ones who are continuously being subjected under the felony
murder rule. This rule is also misused by the corrupt and the maligned State
assigned attorneys due to their own biased nature and the difficulty to win the
case or lack thereof.
In the case of Ryan Holle in Florida, the man served a life imprisonment
with no parole for simply lending his car to a friend who in furtherance killed
his girlfriend while on an on- going burglary. Ryan, who lent the car, was
convicted of pre- meditated murder.
Felony Murder Rule in California
In the United States of America, 45 out of the 50 states have the felony murder
rule active in legislation. The states of Hawaii, Massachusetts, Kentucky and
Michigan have abolished the Doctrine of Felony Murder by holding them
unconstitutional. In the state of California, on January 1st of 2019, California
Senate Bill 1437 was passed, which gave new bounds for the felony murder rule.
It doesn't actually abolish the doctrine, but rather fine lines the usage of the
doctrine in a fairer way which significantly reduces the chance of the defendant
to be convicted of a first-degree murder. This bill was set rolling in 2011,
when in the case of Brown v. Plata
, the US Supreme Court ruled that the
overcrowding of the prison is violative of the Eighth Amendment. They regarded
felony murder rule of a useless nature which just occupies the prison space
among other doctrines.
This bill wasn't the first time the California has opposed to the System, back
in 1960, the Judges of the California High court have called this rule as
l and Barbaric
and further had mentioned that rules like
these erode the relation between criminal liability and moral culpability.
This unwise and outdated doctrine had gained a lot of traction against it after
the Felony Murder Elimination Project
 had found that about 5,206 (out of which
3,711 were first time offenders) people are serving life imprisonment without
parole (death by incarceration). Out this 5,206, 68% (3,557) were African
Americans and Hispanic and out of the total about 3,221 people were under the
age of 25. With the statistics at hand, we can see how the courts and the
District Attorneys have pumped up the number with majority of them being from
the minority communities.
The changes which were brought by the Bill are:
- He or she commits or attempts to commit a felony or is a major
participant in a felony
- One of the following circumstances also applies:
- He or she kills a person
- He or she acts with reckless indifference to human life
- He or she aids and abets in first-degree murder with intent to kill
- An on-duty police officer is killed as a result of the commission of the
The main difference between the old and the new law is that the new law
considers the intent of the defendant. In the old rule, the defendant could be
convicted when the murder happens during the felony even if it was accidental,
unintentional or where no knowledge by the defendant. Another important factor
which the new bill brings in is that whether the defendant was or was not a major Participant
of the crime that took place, based on this the culpability
will be assessed.
This law not only applies for the new crimes which are
happening or which will take place but rather works retrospectively too, thus
freeing thousands of inmates who were wrongfully convicted with the Doctrine of
Felony Murde in India
in India, the Doctrine of Felony murder was abolished in 1957 shortly after
England had abolished it. But, to some extent the effects of the abolished
doctrine are preserved in different sections of the Indian Penal Code, 1860.
When read together, Section 34 which defines intention of several person in
furtherance of a crime and the liability of one person shall extend to others
who were involved, Section 107 talks about the abetment of a thing (Specifically
the words needed to be used are intentionally aids, illegal omission
Section 120A is the definition of Criminal Conspiracy, where two or more persons
agree to do an illegal act, from the Indian Penal Code, gives the effect of
felony murder doctrine.
In an Indian Case of Mallanna S/o Narasappa Erat and
ors. v. State and anrs.
, the Sessions Court had held that the
appellants/accused have shared common intention so far as consequence of their
act of murder and convicted all of the appellants under section 304 I of IPC
for the Act of one person.
The maligned and an outdated rule of the Felony Murder, is one of the vestigial
doctrines which rips of the trust of the people away from the legal systems of a
nation. Doctrines like these are mainly used to get advantage over a certain
group or for alleged deterrence of an act. However, the rule in its basic core
itself is wrong, as the deterrence works, but not for the deterring murder, but
for the deterrence of felonies.
Every person should get the punishment that they
deserve, but paying for something one did not do or even think of it is
pathetic. In my opinion, the courts themselves should recognise that this rule
is an unconstitutional doctrine and should abstain away from the rule, so that
at least in the future cases the justice won't be malicious.
The felony murder
rule was born half baked; weak and was developed at a rapid pace with no room
for development, now it poses as a great risk to the integrity of the
constitutions and fundamental rights of Nations such as the USA. This Article
has demonstrated how the Felony murder rule works in different regions and how
maliciously they are used in some of the nations.
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Written By: Kiran Kumar J,
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Tamil Nadu National Law University (TNNLU)
Corpus Delicti: Establishing Murder in the Absence of Dead Body
Attempt And Criminal Conspiracy Under Indian Penal Code, 1860