Most American states adopted new homicide statutes during the nineteenth century. The most popular reform involved dividing murder into degrees. Such statutes usually aggravated murder to the first degree if it was committed in the attempt of one of several enumerated felonies. These enumerated felony aggravator statutes did not necessarily reduce the culpability required for murder in the course of these felonies. Nor did they necessarily impose second-degree felony murder liability for causing death unintentionally in the course of other, non-enumerated felonies. A felony aggravator statute leaves the criteria of murder liability to judicial discretion.
Felony aggravator statutes were enacted in twenty-two states.1 In six of these states—Indiana, Iowa, Maine, Nebraska, Ohio, and Washington—the statute also defined murder as requiring the culpable mental state of malice.
We will now examine the application of these felony aggravator statutes to impose felony murder liability. Our primary aim is to see whether courts based felony murder liability on the grading provisions or on the term “murder” itself, and whether courts restricted felony murder liability to enumerated predicate felonies. Some felony aggravator statutes conditioned murder liability on the mental element of malice, and we will also see how such provisions affected felony murder liability.
The Pennsylvania legislature gave its grading statute an authoritative construction in 1810 in an instruction manual for grand jurors. The manual conditioned murder on malice express or implied, defining the latter as “doing an act that apparently must do harm, with an intent to harm” or acting with “deliberation and cruelty,” “a mind grievously depraved,” and “motives highly criminal.”2