Another felony murder question

In the felony murder thread (, there were some questions I didn’t understand the answers to (if they were answered).


I would appreciate one of our resident legal eagle beagles clearing this up since I am still confused.

In the first instance, the teller would be the one charged with murder if anything. The teller was no longer in danger, so there was no justification to pull a gun.

First degree murder must be premeditated, and you cannot premeditate an accidental murder. This in my view would preclude exceeding the intended victim’s level of murder charge.

First question – I say no murder; the robber had repudiated his intent and there is no longer a felony in progress. It’s a close question, though, since the teller’s action was put in motion by the robber’s original intent and the teller’s recklessness isn’t at issue (since that action, though reckless, can nonetheless be traced to the felonious intent). Golly, that’s a close one.

Second one – sounds silly, but it might be right. Maybe felony murder is ultimately predicated on a more concrete mens rea (for the originally-planned felony) than one finds in crimes of passion so neither would be capital murder.

Both of these are very fine points, though, and I don’t think that the fact that a legal doctrine breaks down in extreme situations necessarily means the doctrine is not worthwhile in the run of cases. Law isn’t math.


The first thing to point out is that these questions, while interesting, never come up outside of law school (and intelligent message boards) because they just don’t really happen: “if a guy throws away a gun, and an eagle picks it up and carriees it into the air, and then drops it on a second guys head, and the second guy was about to stab a third guy, but instead is killed by the falling gun andso he falls on the third guy, and the third guy dies . . . .” :wink:

No. The robber has abandoned the robbery and is leaving. The teller is not justified in using deadly force to try to stop him, because he is not presenting any apparent danger to anyone at that point. Further, the teller is not a participant in the crime and, in my jurisdiction at least, for felony murder to attach, the death has to be the result of the acts of the participants to the crime. So if a police officer shot the bystander, aiming for the robber, the robber would not be chargeable with felony murder, at least in my jurisdiction. The bank teller might be charged with manslaughter, if the circumstances are held not to justify him or her firing at the robber as he or she was walking away.

Well, it would be possible to charge both deaths as first degree murder, or to charge both deaths as second degree murder, or to charge the first crime as first degree and the second crime as second degree, or to charge the first crime as second degree and the second crime as first degree. The least likely of these is that the intended death would be charged at a lower level (second degree) than the unintended death (first degree).

In my jurisdiction, “first degree homicide” can be EITHER “with *premeditated intent to cause the death of another person, causing the death of that person or a third person,” OR “under circumstances manifesting an extreme indiffference to human life, engaging in conduct which causes the death of a person.” We can assume the “fit of rage” precludes premeditiation, BUT either death could be fit under the second definition. So either death could be charged as a first degree murder.

The lack of premeditation could also pop the first death down to a second degree homicide, defined in my jurisdiction as “intentionally but without premeditation causes the death of another or a third person,” and the second death could follow under the doctrine of transferred intent (if you intend to harm one person and instead harm a second, your intent to harm will be “transferred” from one victim to the other, because the important thing is not that you intended to harm that particular person, but that you intended to do harm in the first place.)

So it’s possible the first death could be charged in the second degree and the second in the first, but not IMO likely. More likely, both woud be charged in the first degree or both in the second.

I should also clarify that while IAAL, IANA Criminal L, so I will gladly take correction if my analysis is wrong or incomplete. The only reason I even try to answer questions so far out of my own area of expertise is because they are so obviously hypothetical.

If it turns out that cole really did almost rob a bank and somebody got shot over it, Jodi, we’re both gonna be disbarred. :wink:


P.S. While I don’t doubt that Jodi’s statement of the law of her jurisdiction is correct, traditionally felony murder would attach if a victim killed the defendant’s co-conspirator during a robbery.