Code Versus Common Law

Code Versus Common Law

The presumption in § 210.2(1)(b) is easiest to understand as a reaction to the rule it replaced. At common law, a person who kills during the commission or attempted commission of a qualifying felony is guilty of murder through imputed malice. The felony is treated as supplying the guilty mind that murder requires, so no one asks what the felon actually perceived about the risk of death.¹ The classic formula is almost arithmetic, a felony plus a killing equals a murder. It makes the homicide an offense of strict liability, because the only culpability the prosecution must show is the culpability the felony already demands.² Georgia's murder statute, reprinted in the footnotes to Gregg v. Georgia, states the idea directly by making it murder when a person in the commission of a felony causes the death of another human being "irrespective of malice."³

The common-law reasoning ran from the category of crime to the state of mind. A dangerous felony raises the risk of death, the felon who commits it shows a lack of concern for human life, and the law therefore imputes malice to the resulting killing.⁴ Because the inference runs from the category of crime, evidence about what this particular felon perceived does not change the outcome. That is why the doctrine is called strict liability, and why it sits uneasily with the rest of homicide law, which grades punishment by the actor's attitude toward the risk.⁵ The rule drew little objection at first, since nearly every felony was punishable by death and it made little difference whether the felon was hanged for the felony or for the death it accidentally caused.⁶ Legislatures later created many felonies that involve minor misconduct and carry penalties far below those for murder, and applying the old rule to them produced murder convictions for deaths with no connection to any culpable attitude.⁷

The drafters of the Model Penal Code answered by recommending that the felony-murder rule be eliminated, while keeping a limited role for the felony. Engagement in an enumerated felony creates a rebuttable presumption that the actor was reckless and acted with extreme indifference to the value of human life.⁸ Two changes follow from that design. The first is that murder requires a purposeful, knowing, or reckless homicide again, so the prosecution must connect the actor's own mental state to the death.⁹ The second is that the felony now works as a presumption the actor can answer with evidence, so it no longer defines the offense.¹⁰ Together they keep murder tied to what the actor actually risked, while the typical dangerous felon, such as an armed robber or an arsonist, is still reached through the presumption.

A newspaper report from 1989 shows how far the older rule could reach, and it is a report of a charge, not a decided case. According to the report, a store security guard and a suspected shoplifter, Jesse Rhodes, were wrestling over a pair of jeans when they accidentally shoved Stanley Dollin, an 87-year-old man walking past. He suffered head injuries and died three days later, and Rhodes was charged with first degree murder.¹¹ A felony-murder theory made that charge possible without any showing about Rhodes's awareness of a risk to the bystander. Under the Code the result differs at the first step. Shoplifting does not appear on the list in § 210.2(1)(b), so no presumption arises, and the prosecution would have to prove directly that the actor consciously disregarded a substantial risk of death under circumstances manifesting extreme indifference.¹² Nothing in the report suggests she perceived any such risk from a struggle over merchandise, so on those facts murder is unavailable under the Code.

Two cautions keep this comparison accurate. The Code did not abolish the felony's role in murder, because the presumption still lets the prosecution reach a murder verdict when a listed felony is the setting for a death.¹³ Students who assume the Code ends felony murder entirely miss that point, and students who assume a listed felony raises a presumption, not a conviction must also remember that the presumption can be rebutted. The common-law doctrine has its own limiting doctrines, which are covered in a separate reading, so this section compares only what each system requires about the actor's state of mind. Where the Code's compromise sits among other reform efforts is the subject of the next section.