Landberg, David J.

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North Dakota Law Review Volume 39 Number 4 Article 7 1963 Homicide - Felony - Murder Rule - Co-Felon Killed by Robbery Victim David J. Landberg Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Landberg, David J. (1963) "Homicide - Felony - Murder Rule - Co-Felon Killed by Robbery Victim," North Dakota Law Review: Vol. 39 : No. 4 , Article 7. Available at: https://commons.und.edu/ndlr/vol39/iss4/7 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. 1963] RECENT CASES 469Allowing recovery in circumstances analogous to theinstant case would extend potential recovery out of logicalproportion. Eventually such a rule would extend to merebystanders.LYNN GARRET-IHOMICIDE - FELONY - MURDER RULE - CO-FELONKILLED BY ROBBERY VICTIM-The defendants (Austin andBell) and the deceased, Rowe, agreed to commit an armedrobbery. During the attempted perpetration of the crime,the intended robbery victim shot and killed Rowe. Thedefendants were charged with first degree murder but weregranted a motion to quash the information on the theorythat Rowe's death was a justifiable homicide, and thereforeno murder was committed. The Michigan Supreme Courtaffirmed the lower court in a 5-2 decision. People v. Austin,370 Mich. 12, 120 N.W.2d 766 (1963).At Common Law to be convicted of murder the killinghad to fall into one of two categories: (1) an unlawfulkilling of another with malice aforethought, express orimplied;' or (2) a killing which falls within the terms ofthe felony-murder rule.2  The basis of this rule is that inthe commission of a dangerous felony the perpetrator shouldforesee a possible death since he invites dangerous re-sistance. 3The vast majority of jurisdictions have adopted somestatutory form of the common law felony-murder rule.4The Michigan statute5 is similar to other states. Generally1. Commonwealth v. Buzard, 365 Pa. 511, 76 A.2d 394 (1950); 4 BLACK-STONE'S COMMENTARIES 195 (Lewis' ed. 1897).2. See PERKINS, CRIMINAL LAW 36 (1957). The felony-murder ruleis stated as follows: "Homicide is murder if the death ensues in conse-quence of the perpetration or attempted perpetration of some other felonyunless such other felony was not dangerous of itself and the method ofit perpetration or attempt did not appear to involve any appreciable hu-man risk."3. See Commonwealth v. Moyer, 357 Pa. 181, 53 A.2d 736 (1947)(dictum).4. See Arent and MacDonald, The Felony-Murder Doctrine And Its AP-plication Under The New York Statutes, 20 Cornell L. Q. 288, 294 (1934-35)for a complete survey of state statutes.5. Mich. Comp. Laws § 750.316 (1948). "All murder . . . which shall becommitted in the perpetration, or attempt to perpetrate any arson, rape,robbery or burglary, shall be murder of the first degree; . . .NORTH DAKOTA LAW REVIEWthey differ only as to which felonies are included within therule.'The majority of the states hold that in order to convictunder the felony-murder doctrine, the killing must have beendone by the defendant or by one acting in furtherance ofthe felonious undertaking.7  Pennsylvania followed thisrules until the Moyer decision in 1947 when they extendedthe doctrine to include any death which could be attributedto the chain of events set in motion by the felon even thoughhe may not have fired the fatal shot.9  This causationtheory was later supported when a robber was convicted ofmurder in a fatal shooting of a policeman by his fellowofficer." In 1955 Pennsylvania, in a fact situation identicalto the instant case, held the defense of justifiable homicidedid not bar the court from convicting the felon for murder.1Three years later the Thomas case was considered an un-warranted extension of the felony - murder rule andPennsylvania declared that the defense of justifiable homicideby the actual killer prevents the robber from being triedfor murder. 2Prior to the Redline decision both Michigan 13 andCalifornia 14 had adopted Pennsylvania's causation theoryconcerning the felony-murder rule. However, Michigan inreaching its decision in the instant case relied on Redline asthe best interpretation of the felony-murder rule.' 5  Cali-fornia has not had further litigation since the Redline decision,but the writer submits that they will also discontinue theirpresent trend of over-extending the felony-murder rule.Apparently North Dakota has not had any litigation in6. See Michigan statute supra note 5. A sampling of similar statutesdiffering only in the crimes included are Cal. Pen. Code Ann. § 189 (1955.)(adds mayhem); N.D. Cent. Code § 12-27-12 (1960) (adds mayhem and sod-omy); Pa. Stat. Ann. tit. 18, § 4701 (Purdon 1963) (adds kidnapping).7. E.g., Butler v. People, 125 Ill. 641, 18 N.E. 338 (1888); State v. Majors,237 S.W. 486 (Mo. 1922); State v. Oxendine, 187 N.C. 658, 122 S.E. 568 (1924).8. Commonwealth v. Guida, 341 Pa. 305, 19 A.2d 98 (1941); Common-wealth v. Major, 198 Pa. 290, 47 At]. 741 (1901).9. Commonwealth v. Moyer, 357 Pa. 181, 53 A.2d 736 (1947). (The gasstation proprietor shot and killed his employee while attempting to pre-vent a robbery).10. Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595 (1949).11. Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204 (1955).12. Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958). (Thc.co-felon was killed by the police rather than by the robbery victim).13. People v. Podolski, 332 Mich. 508, 52 N.W.2d 201 (1952).14. People v. Wilburn, 314 P.2d 590 (Calif. 1957).15. People v. Austin, 120 N.W.2d 766 at 775 (1963).[Vol. 39RECENT CASESpoint with the present case, but it is the writer's submissionthey will follow the present law in Pennsylvania and Michigan.The end result of the Austin case would seem to bringthe Michigan application of felony-murder back in line withthe majority rule that the killing must be done by thedefendant or someone acting in concert with him, and tolimit its application to those situations which caused such adoctrine to be developed in the first place.DAVID J. LANDBERGSALES - IMPLIED WARRANTY-CIGARETTE-CANCER PROBLEM- The decedent's widow and the administrator of his estatebrought an action for death allegedly caused by usingdefendant's cigarettes. In U. S. District Court there was ajudgment for defendant. Their decision was conditionallyaffirmed by the U. S. Court of Appeals; 1 subject to a statutorycertification procedure to determine the applicable statelaw. 2  The Supreme Court of Florida held, two justices dis-senting, that there was imposed on the defendant absoluteliability for breach of an implied warranty of fitness; eventhough the plaintiff contracted cancer when it was notforeseeable that cigarettes might be the cause. Green v.American Tobacco Co., 154 So.2d 169 (Fla. 1963).Early in the 19th century an implied warranty of qualitywas established on the theory that a purchaser has a rightto expect a saleable article when there is no opportunity forinspection. 3  By 1911 strict liability respecting unwholesomefood products was established and has since been recognizedin most jurisdictions. 4  This strict liability has been given1. Green v. American Tobacco Co., 304 F.2d 70 (5th Cir. 1963).2. Fla. Stat. Ann § 25.031 (1945). Where there are no controlling pre-cedents, the U. S. Supreme Court and federal appellate courts may certifyto the state Supreme Court for an interpretation of the law.3. See Gardiner v. Gray,t4 Camp. 144, 171 Eng. Rep. 46 (1815); Halcombev. Hewson, 2 Camp. 391, 170 Eng. Rep. 1194 (1810); See generally Prosser,The Implied Warranty of Merchantable Quality, 27 Minn. L. Rev. 117, 120(1943).4. Doyle v. Fuerst & Kraemer, 129 La. 838, 56 So. 906 (1911); SeeProsser, The AssaUlt Upon the Citadel (Strict Liability to the Consumer),69 Yale L. J. 1099, 1107-1108 (1960). Seventeen states extend strict liabilitywithout regard to negligence and privity. Five states have reached thesame result by statute. There is no definite North Dakota law on the sub-ject.1963]

Homicide - Felony - Murder Rule - Co-Felon Killed by Robbery Victim

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Homicide - Felony - Murder Rule - Co-Felon Killed by Robbery Victim

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