Turner, J. Wirt, Jr.

English

University of Kentucky

Kentucky Law JournalVolume 29 | Issue 1 Article 141940Criminal Law--Conspiracy and the Felony MurderDoctrine in KentuckyJ. Wirt Turner Jr.University of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Criminal Law Commons, and the State and Local Government Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Comment is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky LawJournal by an authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationTurner, J. Wirt Jr. (1940) "Criminal Law--Conspiracy and the Felony Murder Doctrine in Kentucky," Kentucky Law Journal: Vol. 29 :Iss. 1 , Article 14.Available at: https://uknowledge.uky.edu/klj/vol29/iss1/14KENTUCKY LAw JOURNALIn conclusion, it is submitted that the felony murder doctrinein Kentucky is based on the same principles as the negligent murderdoctrine, since to convict a defendant of murder for a death occuringduring the commission of a felony there must first be a felonydangerous to life and, secondly, the death of the victim must be thenecessary or natural consequence of the felony.J. GRiANVILLE CLARKCRIMINAL LAW-CONSPIRACY AND THE FELONY MURDERDOCTRINE IN KENTUCKY*Defendant was indicted jointly with two others for the crime ofwilful murder by setting fire to a house and burning a child to death.The evidence showed that defendant was not near enough to aid andabet in the crime. Conviction was accordingly obtained under aninstruction on conspiracy. Defendant appealed contending, inter aZia,that the court erred in not submitting to the jury the question ofwhether the killing of the child was the natural and probable conse-quence of the burning of the house and therefore within the purpose ofthe conspiracy. The appellate court affirmed the conviction, holdingthat there was no doubt that the death of the child was the natural con-sequence of burning the house; and that therefore it was not necessaryfor the conspiracy instruction to submit this question for the deter-mination of the jury. Whitfield v. Commonwealth, 278 Ky. 111, 128S.W. (2d) 208 (1939).According to the modern conception of the felony murder doctrine,a conviction of murder will be sustained when a homicide occurs atthe hands of the felon during the perpetration of a felony such asarson, robbery, rape, burglary, or Other felony which involves a sub-stantial risk to human life.' Whether the homicide was a natural andprobable consequence of the commission of the felony Is seldom con-sidered by the courts.2A summary investigation of the instant case might lead one toconclude that Kentucky has modified the felony murder doctrine andnow permits a conviction of murder only when the homicide Is thenatural and probable consequence of the perpekration of the particularfelony.3 In order to ascertain the truth or falsity of that conclusionit will be necessary to review briefly the Kentucky decisions relating tofelony murder.* This comment is written in conjunction with the one immediatelypreceding. The same case is considered in both. The writers reachdifferent conclusions.-Ed.I See Arent & MacDonald, The Felony Murder Doctrine and ItsApplication Under the New York Statutes (1935) 20 Cornell L. Q. 288,291; Note (1940) 28 Ky. L. J. 218.2 Notes (1940) 28 Ky. L. J. 215, 216; 28 Ky. L. J. 218, 221 n. 11.See also Arent & MacDonald, supra n. 1, at 309.3 See Companion Note (1940) 29 Ky. L. J. 197.CASE COMENTSIn Commonwealth v. Reddick,4 the first reported Kentucky casedealing directly with homicide in the commission of a felony, nomention was made of a requirement that the homicide be a naturaland probable consequence of the commission of the felony. On thecontrary, the court indicated that the consequences of the commissionof the felony are held; as a matter of law, to be natural and probable.Williams v. Commonwealth,6 a recent Kentucky decision, reiteratedthe holding of the Readick case, and again no mention was made of anecessity for the ]-rsence of natural and probable causation. In answerto a request for a voluntary manslaughter instruction, the court veryaptly observed:"We are not aware of having approved a ... voluntary man-slaughter instruction where the homicide was committed whilethe accused was attempting to commit or was committing a felony,such as robbery, which tends to the injury of another ... Wherethe killing is under those circumstances, it is murder."Judge Roberson,8 a noted authority on Kentucky criminal law,accords with this view, and suggests that it is murder even thoughthe felon accidentally kills his victim. He brings no element of naturalsnd probable causation into the crime. The great majority of Ameri-can jurisdictions are in accord with the Kentucky view as expressedby Judge Roberson.'The opinion in the instant case is, therefore, apparently in con-flit with both Kentucky and general American precedent insofar asit suggests that natural and probable causation is a factor to beconsidered in felony murder. However, since the court does notexpressly repudiate such precedent, an approach from a different stand-point might reconcile the cas& with past precedent. This different'17 Ky. Law Rep. 1020, 33 S.W. 416 (1895).5 "The felonious intent and purpose of accused in doing which, ifguilty, the law certainly transfers to a consequence and result of sameso natural as that the inmates of the house might by such fire losetheir lives. Upon such a state of case we think there has never beenany doubt as to the law." Id. at 417.8258 Ky. 830, 81 S.W. (2d) 891 (1935).1Id. at 834, S.W. at 893.8 R oberson, New Kentucky Criminal Law and Procedure, (2d ed.1927) sec. 357: "It follows therefore, that all homicide committed orcaused by one engaged in the perpetration of or attempt to perpetraterape, arson, burglary, or robbery, or other felony, is murder .. . It istherefore murder if a robber accidentally kills his victim, or if a personcommits arson by setting fire to a dwelling house, and accidentallyburns the occupant."I upra, n. 2. In a few American jurisdictions the perpetration ofthe felony must be the natural and probable cause of the death beforea murder conviction will be sustained. Turk v. State, 48 Ohio App.489, 194 N.E. 425 (1934); 'Pleimling v. State, 46 Wis. 516, 1 N.W. 278(1879). Other jurisdictions merely repeat their statutory provisions,and no reference is made to any requirement of natural and probablecausation. See Arent & MacDonald, supra, n. 1 at 294 for a summaryof the various statutory provisions.]KENTUCKY LAW JOURNALapproach must proceed from the conspiracy factor in the instantcase.The common law crime of conspiracy has been held to be com-pleted in a bare unexecuted agreement to do evil. 0 And the co-conspira-tors are held responsible for all acts which are the natural and prob-able result of the original unlawful purpose of the conspiracy.1 Theacts for which the co-conspirators may be responsible may occur whenthe co-conspirator is not present at the scene of the occurrence. Thusit is no more than reasonable that liability should attach to theco-conspirator only where the act is the natural and probable con-sequence of te purpose of the conspiracy. Otherwise, the conspiracyiule would permit one person to be held accountable for an accident,wholly unrelated to the conspiracy, where this accident occurred atthe hands of another individual.No exception to the rule requiring natural and probable causationis found where -the purpose of the conspiracy was to commit a dan-gerous felony. In Commonwealth v. Walters," a Kentucky case, thecourt held that where a felony is conspired, the co-conspirators areguilty of murder only where the killing is the natural and probableconsequence of the conspiracy. Although the felony was statutory(conspiracy to effect a break from prison) it was a felony involvingsubstantial risk to human life and should be subject to the same ruleswhich apply to similarly dangerous common law felonies."Again, in Tincher v. Commonzvealth,"4 the Kentucky court, ineffect, concluded that in cases involving death in a conspiracy tocommit a felony the death must have been the natural and probableconsequence of an act within the purpose of the conspiracy before aconspirator may be convicted of murder. In that case, G and defendant,with others, conspired to rob a bank. During the course of the rob-bery, G pointed a gun toward deceased to "hold him up". The gun was-discharged. The court made the following observation:"... it is argued that the court should have instructed the juryon accidental shooting, and upon the reckless handling of firearmsby (G), resulting in the shooting . . . We concede that it would"Com. v. Fuller, 132 Mass. 563 (1882); Com. v. Bartilson, 85 Pa.St. 482 (1877); Rex. v. Gill, 2 B. & Ald. 204, 106 Eng. Rep. 341 (1818)."Kentucky has held, in accordance with that rule, that where ahomicide is committed by one conspirator in the course of the con-spiracy all of the co-conspirators are equally liable provided the killingis a natural and probable consequence of the conspiracy. Powers v.Com., 110 Ky. 386, 61 S.W. 735 (1901). The court gives a thoroughanalysis of the Jaw of conspiracy with relation to resulting homicides.S.W. at 743. See also Roberson, supra n. 7 at sec. 224.2206 Ky. 162, 266 S.W. 1066 (1924)."3Judge Roberson states that Kentucky does not recognize a dis-tinction between statutory and common law felonies in the applicationof the felony murder doctrine. Roberson, supra n. 7 at sec. 357. Seealso Powers v. Com., 110 Ky. 386, 61 S.W. 735, 742 (1901) (Kentuckywould apply the doctrine only to those statutory and common lawfelonies which involve a substantial risk to human life).'1253 Ky. 623, 69 S.W. (2d) 750 (1934).CASE COMMENTShave been proper, if there had been any evidence establishing eitherof such theories, to have instructed the jury thereon, and it wouldhave been prejudicial error not to have done so.' (Italics added)The court clearly indicates that natural and probable causation mustexist before the conspirator may be convicted of murder. Obviously,an instruction requiring such causation would not have been properif the conspirator is to be treated in the same manner as the ordinaryfelon of the Reddiclk and Williams cases. In those cases, as has beenpointed out above, natural and probable causation was not a factordeemed worthy of consideration. However, the Reddicc and Williamscases involved only the felony murder doctrine, and no conspiracyfactor was present. Apparently the court makes a distinction betweenthe felony murder doctrine and the conspiracy to commit a felony. Thefelon under application of the felony murder doctrine is guilty ofmurder without regard to natural and probable causation. However,the conspirator in the conspiracy to commit a felony is guilty ofmurder only when the resulting homicide is the natural and probableconsequence of the conspiracy. 0 Thus the distinction between thefelony murder doctrine and the conspiracy to commit a felony restsupon the conspicuous unimportance of natural and probable causationin the former in contrast to the obvious necessity for such causationIn the latter.In view of the fact that the instant case involves a conspiracy tocommit a felony, and not the felony murder doctrine, we must con-clude that the decision of the court was correct and not opposed toestablished precedent in Kentucky. Except for the fact that thishomicide was without question the natural and probable consequence ofthe conspiracy to commit arson, the defendant would have been entitledto have the question of natural and probable causation submitted to thejury. Since the defendant was a conspirator absent from the scene ofthe crime, he cannot be held for murder unless the homicide was thenatural and probable consequence of the conspiracy. If the defendanthad committed the homicide himself while in the actual perpetrationof the felony, the felony murder doctrine would be applicable and hecould be held for murder without reference to natural and probablecausation.' Id. at 628, S.W. at 753.'0 Kentucky Is not alone in recognizing the distinction between thefelony murder doctrine and the conspiracy to commit a felony. Peoplev. Jones, - Cal. -, 29 P. (2d) 902 (1934) holds that natural andprobable causation must be present in a conspiracy to commit a felonybefore a co-conspirator may be convicted of murder; while People v.Milton, 145 Cal. 169, 78 Pac. 549 (1904) indicates that the felonymurder doctrine will be invoked without reference to natural andprobable causation. See Arent & MacDonald, supra n. 1 at 305-10 fora discussion of the distinction as it exists in New York and otherjurisdictions. Arent & MacDonald recognize that natural and probablecausation must be present in a conspiracy to commit a felony, butdoubt that it should be required in view of the fact that the felonymurder doctrine does not require such causation.KENTUCKY LAW JouRINALThe language and references of the court in the instant caseclearly indicate that there was no intention to depart from the acceptedconception of felony murder. Reference was made to Judge Roberson'streatise on criminal law, and a clear felony murder concept was quotedtherefrom:"It is murder . . . if a person commits arson by setting fire to adwelling house and accidentally burns the occupant." 17  (Italicsadded).The court also referred to Reddick v. Commonwealth, which, as pointedout above, is in conformity with the accepted theory of felony murder.In conclusion, it is submitted that the instant case is not a depar-ture from the generally recognized felony murder doctrine. The con-spiracy factor, and that alone, rendered it necessary for the court toinclude the theory of natural and probable causation before the con-viction of murder could be sustained. Also, a reiteration of the long-standing Kentucky precedent makes it evident that a departure fromthis precedent was not intended.J. Wiar Tun-En, J.TRIAL PROCEDURE-DOES A MOTION FOR PEREMPTORYINSTRUCTION TEST THE SUFFICIENCY OF THEPLEADING?In an action for injuries resulting from the alleged negligence ofthe defendant, defendant pleaded contributory negligence, and filed acounterclaim for his injuries. These allegations were not controvertedby the plaintiff's reply. The defendant's motions for peremptory in-structions, made at the close of the plaintiff's evidence, and again atthe close of all the proof, were denied. The defendant asks reversalof the judgment for the plaintiff on the ground that his affirmativedefense went undenied. The Court of Appeals said:"We have ruled in actions ex contractu and in suits of equitythat a party waives the failure to traverse an affirmative allegationwhere the case was tried as if the issue had been joined in thepleading, but in tort actions the rule is otherwise."The Court reversed the judgment but aflowed the plaintiff to file areply controverting the allegations if he desired to have a new trial.Short v. Robinson, - Ky. -, 134 S.W. (2d) 595 (1939).The statement of the Court that there is a distinction betweenthese three classes of actions, contract equity, and tort, must be con-sidered in the light of the facts of the case before it. Should the courtfollow this dictum, it would necessarily hold that a motion for per-emptory instruction in contract and equity actions will not raisethe sufficiency of the pleadings, but in tort actions the rule is other-'wise. Such a rule is not supported by law.In a search for authority upon which the Kentucky Court couldbase such a holding the only case found is Glens Falls Insurance Co. v.1Whitfield v. Com., 278 Ky. 111, 116, 128 S.W. (2d) 208, 210-11(1939).

Criminal Law--Conspiracy and the Felony Murder Doctrine in Kentucky

https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=4274&amp;context=klj

Criminal Law--Conspiracy and the Felony Murder Doctrine in Kentucky

Abstract

Similar works

Full text

Available Versions

University of Kentucky