State v. Canola

Justice CONFORD.

Defendant, along with three confederates, was in the process of robbing a store when a victim of the robbery, attempting to resist the perpetration of the crime, fatally shot one of the cofelons. The sole issue for our resolution is whether, under N.J.S.A. 2A:113-1, defendant may be held liable for felony murder. . . .

The facts of this case are adequately stated in the opinion of the Appellate Division. . . . The owner of a jewelry store and his employee, in an attempt to resist an armed robbery, engaged in a physical skirmish with one of the four robbers. A second conspirator, called upon for assistance, began shooting, and the store owner returned the gunfire. Both the owner and the felon, one Lloredo, were fatally shot in the exchange, the latter by the firearm of the owner.

Defendant and two others were indicted on two counts of murder, one count of robbery and one count of having been armed during the robbery. The murder counts were based on the deaths, respectively, of the robbery victim and the co-felon. After trial on the murder counts defendant was found guilty on both and was sentenced to concurrent terms of life imprisonment. . . . when the Appellate Division majority upheld the trial court’s denial of a motion to dismiss the count addressed to the homicide of the co-felon, Judge Handler dissented.

Conventional formulations of the felony murder rule would not seem to encompass liability in this case. As stated by Blackstone about the time of the American Revolution, the rule was: “And if one intends to do another felony, and undesignedly kills a man, this is also murder.” 4 Blackstone, Commentaries. . . . In such case the felonious intent supplies the malice requisite for murder. . . . A recent study of the early formulations of the felony murder rule by such authorities as Lord Coke, Foster and Blackstone and of later ones by Judge Stephen and Justice Holmes concluded that they were concerned solely with situations where the felon or a confederate did the actual killing. Comment, 24 Rutgers Law Review 591. . . . Contrary to the division of view in the modern American cases on the point . . ., it has been observed that the English courts never applied the felony murder rule to hold a felon guilty of the death of his co-felon at the hands of the intended victim. Prevezer, “The English Homicide Act: A New Attempt To Revise The Law Of Murder.”. . .

The precise issue in the present case is whether a broader concept than the foregoing — specifically, liability of a felon for the death of a co-felon effected by one resisting the felony — is required by the language of our statute applicable to the general area of felony murder. N.J.S.A. 2A:113-1. This reads:

“If any person, in committing or attempting to commit arson, burglary, kidnapping, rape, robbery, sodomy or any unlawful act against the peace of this State, of which the probable consequences may be bloodshed, kills another, or if the death of anyone ensues from the committing or attempting to commit any such crime or act . . . then such person so killing is guilty of murder.”

. . . The Appellate Division majority was of the view that the . . . “ensues clause,” compelled the result it arrived at. It said:

"We think it is clear that the clause was not intended to be mere surplusage where it appears that the other provisions of the statute, standing alone, embody the concept of felony murder under the common law. . . . In our view the statute indicates an intention on the part of the Legislature to extend criminal responsibility beyond that imposed upon a felon at common law and to hold liable all participants in an armed robbery for deaths which occur during the commission of the crime.

Judge (now Justice) Handler, in dissenting, cited the decisions representing the majority view in those other jurisdictions which had considered the general question, and said they hold that “a felon cannot be found guilty for the death of an accomplice occurring during the commission of the felony.” As to the ensues clause of the statute, Judge Handler stated:

“. . . [T]he purpose of the "ensues clause” would appear to be a legislative attempt to insure a broadened scope of criminal responsibility with respect to a defendant who, as a primary actor or in concert with or through the criminal agency of another, actually or constructively, but in furtherance of the felony, causes the death of another person.". . .

. . . [W]e are in accord with the conclusion arrived at in the dissent. . . . Preliminarily, . . . it seems significant of the contemporaneous and subsequent general assessment of the meaning of the ensues clause in our statute that prior to the past decade, and over the long period of its presence in our statute books, there is no apparent evidence that any felon was ever charged with murder for a death at the hands of persons not associated with the felonious undertaking. . . .

It is clearly the majority view throughout the country that, at least in theory, the doctrine of felony murder does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of one other than the defendant or those associated with him in the unlawful enterprise. . . . This rule is sometimes rationalized on the “agency” theory of felony murder.

A contrary view, which would attach liability under the felony murder rule for any death proximately resulting from the unlawful activity — even the death of a co-felon — notwithstanding the killing was by one resisting the crime, does not seem to have the present allegiance of any court. . . .

At one time the proximate cause theory was espoused by the Pennsylvania Supreme Court . . . [in] Commonwealth v. Almeida. . . . The reasoning of the Almeida decision, involving the killing of a policeman shot by other police attempting to apprehend robbers, was distinctly circumvented when the question later arose whether it should be applied to an effort to inculpate a defendant for the killing of his co-felon at the hands of the victim of the crime. [In] Commonwealth v. Redline . . ., [t]he court held against liability. Examining the common-law authorities relied upon by the Almeida majority, the Redline court concluded:

“As already indicated, Almeida was, itself, an extension of the felony-murder doctrine by judicial decision and is not to be extended in its application beyond facts such as those to which it was applied.”

The court then held that “in order to convict for felony murder, 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.” . . . The court refused, however, actually to overrule the Almeida decision, thereby creating a distinction . . . between the situation in which the victim was an innocent party and the killing therefore merely “excusable” and that in which the deceased was a felon and the killing thus “justifiable.” Twelve years later the Pennsylvania court did overrule Almeida in a case involving Almeida’s companion, Smith. ( Commonwealth ex rel. Smith v. Myers. . .). The court noted, inter alia, the harsh criticism leveled against the common-law felony rule, its doubtful deterrent effect, the failure of the cases cited in Almeida to support the conclusions reached therein, the inappropriateness of tort proximate-cause principles to homicide prosecution, and the “will-of-the-wisp” distinction drawn by the Almeida court between justifiable and excusable homicides. . . . It concluded, “beyond a shadow of a doubt . . . Almeida constitute[s] [an] iberration [sic] in the annals of Anglo-American adjudicature.” . . .

The course of the decisions in Michigan illustrates the influence of the Pennsylvania cases in the development of the felony murder rule in other jurisdictions. . . . After the Pennsylvania court changed course in Redline, . . . the Michigan court followed suit in People v. Austin . . ., where defendants’ indictments for the slaying of their accomplice by the robbery victim were quashed. Relying heavily on Pennsylvania’s curtailment of the expansion of the felony murder rule, the court, while not overruling Podolski, nonetheless refused to extend liability to instances where the deceased was a co-felon. . . .

The California cases have taken a wholly unique course in this area of the criminal law. The Court of Appeal, influenced by the early Pennsylvania cases, first adopted the proximate cause theory. In People v. Harrison . . ., the court held the defendants guilty of first degree murder when the owner of a store being robbed exchanged gunfire with the robbers and killed an employee. But in People v. Washington . . ., the Supreme Court refused to hold a surviving felon liable for the death of a co-felon, instead reverting to the common law view of Campbell, . . . and overruling People v. Harrison. It said:

“Accordingly, for a defendant to be guilty of murder under the felony-murder rule the act of killing must be committed by the defendant or by his accomplice acting in furtherance of their common design.”. . .

To be distinguished from the situation before us here, and from the generality of the cases discussed above, are the so-called “shield” cases. The first of these were the companion cases of Taylor v. State . . ., and Keaton v. State. . . . In attempting to escape after robbing a train, defendants thrust the brakeman in front of them as a shield, as a result of which he was fatally shot by law officers. The court had no difficulty in finding defendants guilty of murder. The court in Taylor noted the correctness of the Campbell case doctrine that a person could not be held liable for homicide unless the act is either actually or constructively committed by him, but indicated it was inapplicable to a case where defendants forced deceased to occupy a place of danger in order that they might carry out the crime. . . . In Keaton, the court said defendant would be responsible for the “reasonable, natural and probable result of his act” of placing deceased in danger of his life. . . . The conduct of the defendants in cases such as these is said to reflect “express malice”, justifying a murder conviction. Commonwealth v. Redline. . . .

This review of the development in this country of the felony murder rule in relation to culpability for lethal acts of non-felons shows that, despite its early limitation to deadly acts of the felons themselves or their accomplices, the rule has undergone several transformations and can no longer be stated in terms of universal application. As one commentator noted, it appears from the reported cases that . . . when the Pennsylvania court in Redline . . . overruled its prior holding of liability, in apparent return to the original position of the common law, a number of other jurisdictions followed suit, and the trend since has been towards nonliability. . . .

Reverting to our immediate task here, it is to determine whether our own statute necessarily mandates the proximate cause concept of felony murder, as thought by the Appellate Division majority. It is fair to assume, initially, that the Legislature had no special reason in 1796 to ordain a rule of felony murder beyond that generally accepted in Anglo-American jurisprudence at the end of the eighteenth century. . . . But as seen above, the view of the Appellate Division was that the “ensues clause” of N.J.S.A. 2A:113-1 must be deemed to have expanded the culpability of the felon to killings by others not confederated with him, if proximately related to the felonious enterprise, else the clause would be meaningless surplusage in the act. However, other plausible motivations for the ensues clause can be postulated consistent with a legislative intent to adhere to the traditional limitations of the felony murder doctrine. . . .

. . . [I]t is inescapable that the ensues clause is connected with the conclusion of the section, “then such person so killing is guilty of murder”. This fortifies the view that even as to a death which “ensues” from the commission or attempt to commit the felony, liability for murder is intended to be restricted to the person “so killing”, namely, the felon or his agents, not third persons, conformably with the limitation of the Pennsylvania Redline doctrine. . . .

Our decided cases have readily accommodated conventional applications of the felony murder rule to the “ensues” verbiage of the statute. . . . In State v. Carlino. . ., defendant was not at the scene of the crime nor was he aware of the killing. Nonetheless the court found that in enacting the ensues clause, the Legislature “clearly intended that a man might be held guilty [of murder] although he was not the actual assailant if he was guilty on the theory of constructive presence.” . . . In the course of this interpretation of the ensues clause, the court addressed the issue of the impact of the relevant statutory sections, . . . and found there was no intent to change the common law:

“Our legislation in the sections cited does not suggest any intent to change the law. The crime remains the same crime as before, and the legislation has merely made a distinction with a view to the difference in the punishment between the most heinous and the least aggravated grades of murder.” . . .

. . . [A]ssuming the statute is facially susceptible of the interpretation here advocated by the State, it is appropriate to consider the public policy implications of the proposed doctrine as an extension of prior assumptions in this State as to the proper limitations of the felony murder rule.

Most modern progressive thought in criminal jurisprudence favors restriction rather than expansion of the felony murder rule. A leading text states: “The felony murder rule is somewhat in disfavor at the present time. The courts apply it when the law requires, but they do so grudgingly and tend to restrict its application where the circumstances permit.” Perkins on Criminal Law. . . . It has frequently been observed that although the rule was logical at its inception, when all felonies were punishable by death, its survival to modern times when other felonies are not thought to be as blameworthy as premeditated killings is discordant with rational and enlightened views of criminal culpability and liability. . . .

In view of all of the foregoing, it appears to us regressive to extend the application of the felony murder rule beyond its classic common-law limitation to acts by the felon and his accomplices, to lethal acts of third persons not in furtherance of the felonious scheme. The language of the statute does not compel it, and, as indicated above, is entirely compatible with the traditional limitations of the rule. Tort concepts of foreseeability and proximate cause have shallow relevance to culpability for murder in the first degree. Gradations of criminal liability should accord with degree of moral culpability for the actor’s conduct. . . .

The judgment of the Appellate Division is modified so as to strike the conviction and sentencing of defendant for murder of the co-felon Lloredo.

Justice SULLIVAN (concurring in result only).

The practical result of the majority holding is that even though some innocent person or a police officer be killed during the commission of an armed robbery, the felon would bear no criminal responsibility of any kind for that killing as long as it was not at the hand of the felon or a confederate. The legislative intent, as I see it, is otherwise.

The thrust of our felony murder statute, . . . is to hold the criminal liable for any killing which ensues during the commission of a felony, even though the felon, or a confederate, did not commit the actual killing. The only exception I would recognize would be the death of a co-felon, which could be classified as a justifiable homicide and not within the purview of the statute.

The Legislature should act promptly to clarify the situation resulting from the majority opinion. If it does not extend the felony murder statute to encompass a killing during the commission of a felony not at the hand of the felon or confederate, it should, at least, provide that the felon be chargeable with manslaughter for such killing (in addition to liability for the felony).