5 THE MYTH OF THE COMMON LAVV
FELONY MURDER RULE

Criticism of felony murder liability rests on oft repeated but seldom examined claims about its origins. Many commentators and courts suppose that a rule imposing strict liability for any death in any felony long prevailed in the English common law, was received into American law upon independence, and remains the law except where modified by enlightened legislation or judicial decision. William Clark and William Marshall summed up this prevailing view on the origin of American felony murder rules in their early-twentieth-century treatise on crimes:

At common law, malice was implied as a matter of law in every case of homicide
while engaged in the commission of some other felony, and such a killing was
murder whether death was intended or not…. On this principle, it was murder
at common law to unintentionally kill another in committing, or attempting to
commit, burglary, arson, rape, robbery, or larceny. The doctrine has repeatedly
been recognized and applied in this country, and is to be regarded as still in
force, except where it has been expressly abrogated by statute. The decisions at
common law do not require that the act done shall have been of such a nature
as to endanger life, or threaten great bodily harm…. If it had been otherwise,
the doctrine would have been altogether unnecessary, because the killing would
be murder because of the tendency of the act, without regard to its being done
in the commission of a felony.1

Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. According to Wayne LaFave’s treatise, “[a]t one time the English common law felony-murder rule was that one who, in the commission or attempted commission of a felony, caused another’s death, was guilty of murder, without regard to the dangerous nature of the felony involved or to the likelihood that death might result from the defendant’s manner of

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