# Another felony murder question
**URL:** https://boards.straightdope.com/t/another-felony-murder-question/205343
**Category:** Factual Questions
**Created:** [October 3, 2003, 2:56pm UTC](https://boards.straightdope.com/t/another-felony-murder-question/205343 "2003-10-03T14:56:49Z")
**Posts on this page:** 6
**Page:** 1
### Author:  [@cole\_burner](https://boards.straightdope.com/u/cole_burner)
#### Post date: [October 3, 2003, 2:56pm UTC](https://boards.straightdope.com/t/another-felony-murder-question/205343/1 "2003-10-03T14:56:49Z")
In the felony murder thread ([http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=211042](http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=211042)), there were some questions I didn’t understand the answers to (if they were answered).
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> The teller says “Hey, you know, if someone dies during this robbery, you’ll be charged with murder.” The robber says “Gee, I guess this isn’t a good idea. Never mind then.” He then walks away. As he’s turning around, the teller pulls out a gun and shoots at him, but misses, hitting customer instead. Is the would-be robber guilty of murder?
And…
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> If one picks up a gun in a fit of rage and shoots someone, but the bullet passes through them and hits someone else, would one be charged with second degree murder for the first death, but first for the second? I realize that the law is not required to make sense, but this seems particularly silly to me.
I would appreciate one of our resident legal eagle beagles clearing this up since I am still confused.
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### Author:  [@Phage](https://boards.straightdope.com/u/Phage)
#### Post date: [October 3, 2003, 3:28pm UTC](https://boards.straightdope.com/t/another-felony-murder-question/205343/2 "2003-10-03T15:28:53Z")
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.
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### Author:  [@Cliffy](https://boards.straightdope.com/u/Cliffy)
#### Post date: [October 3, 2003, 3:46pm UTC](https://boards.straightdope.com/t/another-felony-murder-question/205343/3 "2003-10-03T15:46:52Z")
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.
–Cliffy
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### Author:  [@Jodi](https://boards.straightdope.com/u/Jodi)
#### Post date: [October 3, 2003, 5:21pm UTC](https://boards.straightdope.com/t/another-felony-murder-question/205343/4 "2003-10-03T17:21:38Z")
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 . . . .” 😉
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> The teller says “Hey, you know, if someone dies during this robbery, you’ll be charged with murder.” The robber says “Gee, I guess this isn’t a good idea. Never mind then.” He then walks away. As he’s turning around, the teller pulls out a gun and shoots at him, but misses, hitting customer instead. Is the would-be robber guilty of murder?
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.
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> If one picks up a gun in a fit of rage and shoots someone, but the bullet passes through them and hits someone else, would one be charged with second degree murder for the first death, but first for the second? I realize that the law is not required to make sense, but this seems particularly silly to me.
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.
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### Author:  [@Jodi](https://boards.straightdope.com/u/Jodi)
#### Post date: [October 3, 2003, 5:25pm UTC](https://boards.straightdope.com/t/another-felony-murder-question/205343/5 "2003-10-03T17:25:01Z")
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.
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### Author:  [@Cliffy](https://boards.straightdope.com/u/Cliffy)
#### Post date: [October 3, 2003, 6:52pm UTC](https://boards.straightdope.com/t/another-felony-murder-question/205343/6 "2003-10-03T18:52:49Z")
> [@](#):
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> \*Originally posted by Jodi \*
> \*\* 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. 😉
–Cliffy
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.