People v. Phillips, 414 P.2d 553 (1966)

Case Name: People v. Phillips
Citation: 414 P.2d 553 (1966)

Facts: At the hospital, the parents of a child with cancer were told that surgery was the only effective treatment. However, the defendant who was a chiropractor convinced the parents that he could cure the child. The child died and the defendant was charged with felony murder. The defendant was charged with grand theft medical fraud and the state tacked on a murder charge through the felony-murder doctrine. Felony murder is strict liability.

Defendant’s argument: Felony-murder only applies to those felonies which are inherently dangerous to life. Inherently dangerous felonies do not include grand theft.

Holding: The defendant cannot be charged with felony-murder.

Reasoning: Neither common law nor the legislature has deemed grand theft as an inherently dangerous felony. If the defendant did not commit an inherently dangerous felony then he cannot be charged with felony-murder.


Murder under Common Law was the “the killing of another with malice aforethought.” Malice means the defendant had a malignant heart with the intent to kill; a heart devoid of social duty and fatally bent on mischief. A defendant could be charged with implied malice murder (which is not a separate crime; still murder) if he acted with a malignant heart and the defendant knew there was a high risk of death or grievous bodily injury.

Under modern law, many states have subdivided murder into degrees. For example, first-degree murder is the premeditated killing of another. In second-degree murder, the defendant still has malice but no premeditation. Premeditated has been interpreted to mean planned, deliberate, and willful. How much time is required for premeditation? Courts have differed. (Compare Commonwealth v. Carroll holding that no time is too short for the necessary premeditation to occur; the space of time between the premeditation and the fatal act is immaterial if the killing was in fact intentional, willful, and deliberate; against State v. Guthrie stating that “to allow the State to prove premeditation…by only showing that the intention came into existence for the first time at the time of such killing completely eliminates the distinction between the two degrees of murder;” there must be some appreciable amount of time.)

Some things courts will weigh (although these are not usually given the same weight):

  1. Person of ordinary judgment would know it is reasonably certain to cause serious bodily injury
  2. Done from some ill will/hatred
  3. Indicates indifference/depraved indifference to life

The MPC Section 210.2 states that “criminal homicide constitutes murder when:

(a) it is committed purposely or knowingly; or

(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.”

In section (a), the MPC ask was the murder purposeful or did the defendant do it knowingly? If yes, the defendant is guilty of murder.

In section (b), the MPC asks whether the defendant exhibited extreme indifference to the value of human life. For the defendant to manifest extreme indifference, he must have some conscience awareness.

Section (b) also notes that “recklessness and indifference are presumed if the actor is engaged or is an accomplice to” a felony (whether in the commission of, while attempting to commit, or in flight after committing/attempting). This is essentially the common law felony-murder rule.


Felony-Murder is charged to a defendant when a homicide occurs as the defendant is committing or attempting a felony. A felony-murder charge can only be brought if (1) the underlying felony is inherently dangerous, (2) the felony and murder are two separate offenses in order to avoid merger, and (3) the defendant’s felony has a casual link to the murder.

1. Inherently dangerous

Most common law crimes can be considered inherently dangerous. Examples of inherently dangerous felonies are arson, burglary, kidnapping, and rape. However, if a crime has not been labeled inherently dangerous either through common law or the legislture, courts turn to two different tests to determine whether the underlying felony was inherently dangerous:

(a) In abstract

Under this test, a court asks whether a situation could exist where serious bodily injury or death would not have been foreseeable when the defendant committed the felony. This test focuses on the mens rea and was applied in People v. Phillips; however, it is followed by a minority of jurisdictions.

(b) As perpetrated

Under this test, a court looks at the commission of the felony in the particular circumstances and asks, “was the felon careful enough to avoid an inherently dangerous felony?” This test focuses on the actus reus. Most jurisdictions use this test.

2. Merger

The felony and murder must be two separate offenses otherwise the felony “merges” with the murder and the defendant cannot be charged with felony-murder. This question is really one of statutory construction.

To ensure that the felony and murder are two separate offenses, a court first does an “included in fact analysis.” Two separate offenses do not exist if all of the evidence that will be presented, by the state, in order to prove the felony is the same evidence that is needed in order to prove the homicide. Specifically, the evidence required to prove the “integral” elements of the two offenses.

A court will also look to ensure that an independent felonious purpose exists (See People v. Burton). This means that the felony must have a purpose other than serious bodily injury or death (because the purpose of murder is serious bodily injury or death). This is a legal conclusion which is not determined from the perpetrators perspective. If an independent felonious purpose exists then you cannot merge because we must have two separate offenses and the defendant can be charged with felony-murder.

3. Causation

Two different analysis have been propagated by courts to determine if the felony the defendant committed had a casual link to the homicide.

(a) Proximate cause analysis

This analysis limited the application of felony-murder to the natural and probable consequences of the underlying felony; in other words the foreseeable consequences of the felony. Under this analysis, the court will make a factual inquiry and look at the specific conduct the defendant committed. The defendant’s felony must be a sufficiently direct cause of the homicide. (See Warner-Lambert). This proximate cause analysis was done under the old common law and is only still used by a minority of jurisdictions.

(b) “In the furtherance of

This is a different type of causation analysis where the court looks at a joint plan or underlying felony from a general intent perspective instead of the conduct (a specific intent perspective). The court asks whether or not the death was in furtherance of the joint plan or underlying felony. If the defendant was not the direct cause, he must be a member of a joint group that commits the underlying cause. The “in furtherance” test is the modern analysis and now used by a majority of jurisdictions.

Again, a felony-murder charge can only be brought if (1) the underlying felony is inherently dangerous, (2) the felony and murder are two separate offenses in order to avoid merger, and (3) the defendant’s felony has a casual link to the murder.

State v. Guthrie, 194 W. Va 657 (1995)

Case Name: State v. Guthrie
Citation: 194 W. Va 657 (1995)

Facts: Guthrie was convicted of first-degree murder and received a life sentence. Guthrie killed his co-worker after he was teased and whipped with a towel. Guthrie removed a knife from his pocked and stabbed the victim in the neck and as he fell, the arm. Guthrie had documented psychiatric problems including: two daily panic attacks, chronic depression, and an obsession with his nose (body dysmorphic disorder). Guthrie testified that he suffered a panic attack immediately preceding the stabbing.

Defendant’s argument: The jury instructions equated the terms “willful, deliberate, and premeditated” with “an intent to kill.” What is the point of having all of these different words if they all mean the same thing?

State’s argument: Premeditation can occur instantaneously and deliberation is only required for a moment. “No time is too short for the necessary premeditation to occur.” See Commonwelath v. Carroll.

Holding: Reversed and remanded for a new trial.

Reasoning: The jury instructions do not inform the jury of the difference between first- and second-degree murder. “To allow the State to prove premeditation…by only showing that the intention came into existence for the first time at the time of such killing completely eliminate the distinction between the two degrees of murder.” An elaborate plan or scheme to take life is not required, but the notion of instantaneous premeditation and momentary deliberation is not satisfactory for proof of first-degree murder.

Commonwealth v. Carroll, 412 Pa. 525 (1963)

Case Name: Commonwealth v. Carroll
Citation: 412 Pa. 525 (1963)

Facts: Carroll was found guilty of first-degree murder for shooting his wife twice in the head. On appeal, Carroll raised the issue that the evidence could only sustain a conviction of second-degree murder. Some of the facts: Carroll served in the military and was constantly away from home. He took leave to be with his family. His wife had “sadistically” disciplined their children at times. The night of the murder Carroll and his wife argued for hours over a new job opportunity that would require Carroll to be away from home for four nights a week. Carroll’s wife said that she would leave him. There was a loaded gun on their window sill and Carroll shot her when she had fallen asleep.

Defendant’s argument:

  1. There was insufficient time for premeditation in the light Carroll’s good reputation.
  2. The time and place of the crime and the enormous difficulty of removing and concealing the body show an obvious lack of premeditation.
  3. Also,Carroll did not have the requisite premeditation based on a psychiatrist’s opinion. The psychiatrist stated that Carroll was dependant on his wife, he didn’t want her to leave, and that “rage,” “desperation,” and “panic” produced an impulsive automatic reflex type of homicide…as opposed to an intentional premeditated type of homicide.

State’s argument: No time is too short for the necessary premeditation to occur. The space of time between the premeditation and the fatal act is immaterial if the killing was in fact intentional, willful, deliberate and premeditated. Also, we do not have to believe everything a psychiatric says.

Holding: Judgment and sentence affirmed.

Reasoning: Society would be almost completely unprotected from criminals if the law permitted a blind or irresistible impulse or inability to control one’s self, to excuse or justify a murder or to reduce if from first to second degree.

Compare this to State v. Guthrie which provides different interpretation of premeditation


People v. Arzon, 401 NYS 2d 156 (1978)

Case Name: People v. Arzon
Citation: 401 NYS 2d 156

Facts: Arzon was indicted for two counts of murder in the second degree after intentionally setting fire to a couch and a fireman was killed. The fireman was “enveloped by a dense smoke,” which was later discovered to have arisen from another independent fire (an independent intervening cause) that had broken out on the second floor. There was virtually no evidence implicating Arzon in the second fire’s responsibility (although it did originate in arson).

Defendant’s argument: The evidence was insufficient to support Arzon’s murder charge because murder requires a causal link between the underlying crime and the death.

State’s argument: “It is not necessary that the ultimate harm be intended by the actor. It will suffice if it can be said, beyond a reasonable doubt, as indeed it can here be said, that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused.”

Holding: Arzon’s motion to dismiss the murder counts was denied.

Reasoning: The Court looked at foreseeability after it determined that the defendant’s conduct was foreseeable. It was foreseeable that firemen would respond to the situation, thus exposing them, to a life-threatening danger. The fire set by Arzon was an indispensable link in the chain of events that resulted in the death. The first and second fire were concurrent causes to the same result.

Compare to People v. Warner-Lambert Co.

Keeler v. Superior Court, 2 Cal. 3d 619 (1970)

Case Name: Keeler v. Superior Court
Citation: 2 Cal. 3d 619 (1970)

Facts: Keeler kneed his wife in the stomach to purposefully kill her fetus.

Issue: Whether the fetus, which would have been viable outside the womb, can be considered a “human being” for purposes of the California Penal Code.

Defendant’s argument: A fetus does not fall within the meaning of a “human being” when looking at legislative history. Furthermore:
1) The power to define a crime is a legislative function (the court exercised judicial enlargement which is a violation of the separation of powers), and
2) Due Process requires a fair warning and the government cannot enact an ex post facto law
– It is “unforeseeable” to consider a fetus a human being

State’s argument: The fetus was viable outside of the womb and should be considered a “human being” and it is within the judicial interpretation power to state this.

Holding: The judicial enlargement of the criminal statute was not foreseeable by the defendant and “its adoption at this time would deny him due process of law.” We require more specificity when you are at risk of losing your personal liberty.

Dissent: We should interpret the term “human being” with today’s medical science. The legislature used a broad term, “human being,” (as opposed to “one who has been born alive”). Also, the fact that California courts have not had this same question does not render the judgment “unforeseeable.”


Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884)

Case Name: Regina v. Dudley and Stephens
Citation: 14 Q.B.D. 273 (1884) Queens Branch Division

Facts: Four seamen were stranded on an open boat (life boat) at sea. After twenty days, two of the seamen killed the youngest (17 or 18 years old) to use his body for food. Four days later the three men were rescued. The jury found the facts but entered a special verdict seeking the advice of the Court whether or not this constituted murder.

Issue: Whether the extreme circumstances of the seamen provided them with a legal justification (necessity) for murder.

Defendant’s argument: They were in extreme circumstances and if they did not kill the boy, none of them would have lived. The boy was the weakest and would probably have died anyways. It was better for one to die so that three may live as opposed to all four dying. Necessity is a justification for murder.

State’s argument: The only acceptable taking the life of another is in “self-defence” when the assailant is seeking to kill another. Here, the boy was not the aggressor and did not do anything worthy of death.

Court’s reasoning: The two men should not have made the decision to kill another and the judge is sure not to condone this because of the dangerous precedent it would set when situations like this arise. “[i]t is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime.” He talks about the morals of laying down one’s life for another (both found in heathen and Christian texts).

Holding: Although the temptation was great (and even he might not be able to resist it) does not give a man the right to declare temptation to be an excuse. “It is therefore our duty to declare that the prisoners’ act in this case was willful murder” and there was not a “legal justification of the homicide.”

Judgment: The two men received the death penalty (which was later commuted by the Crown to six months imprisonment).

People v. Zackowitz, 254 NY 192 (1930)

Case Name: People v. Zackowitz
Citation: 254 NY 192 (1930)

Facts: Zackowitz, the defendant, was convicted of first-degree murder and sentenced to death after killing a young man, Coppola. The incident occurred after Coppola and three other young men said insulting words to the defendant’s wife. The defendant’s wife informed Zackowitz after the incident when the two of them were at home. Enraged Zackowitz went back to the men, exchanged words, and shot one of the men, Coppola, with a pistol. The state brought in evidence about three pistols and a teargas gun (none of which were used in the shooting) to show that Zackowitz was “a desperate type of criminal” and a “person criminally inclined.”

Issue: Whether the evidence regarding the defendant’s three pistols and teargas gun were properly admitted.

State’s argument: The evidence was brought to show the defendant’s killing was deliberate and premeditated (first-degree murder) due to the inference that he was “a desperate type of criminal” and a “person criminally inclined.”

Defendant’s argument: The evidence shows a murderous propensity which is character evidence. Under the rules of evidence, character evidence cannot be introduced unless the defendant first makes it an issue.

Reasoning: The evidence was improperly admitted as character evidence which cannot be introduced unless the defendant first makes it an issue. This is to prevent prejudice of the defendant by the jury. Not to mention, the evidence might not even have been relevant.

Judgment: The conviction was reversed and a new trial ordered.