The majority of reported decisions imposing felony murder liability during the nineteenth century were made pursuant to felony murder statutes. Nineteen states enacted such statutes during the nineteenth century, imposing felony murder liability in fifty-three reported cases.
Ten states enacted statutes combining felony murder provisions with a requirement of “malice, express or implied.” These statutes took three forms. Several were ungraded and defined implied malice by reference to Foster’s phrase “abandoned and malignant heart.” Another group added Pennsylvania’s grading provision to this formula. Finally, Texas eschewed the “abandoned and malignant heart” phrase, added Pennsylvania’s grading provision, and also added a provision transferring intent among felonies.
Georgia’s 1817 code defined murder as unlawful killing with malice aforethought either express or implied by circumstances indicating “an abandoned and malignant heart.”1 In defining unlawful act manslaughter, the code provided that an “involuntary killing … in the commission of an unlawful act which in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious or riotous intent, shall be deemed and adjudged to be murder.”2 Illinois’s 1827 felony murder statute resembled Georgia’s, but without riot as a predicate crime.3 Other states adopting this basic formula were Nebraska, for a brief period,4 and Colorado.5 Neither appears to have applied it in a reported case during the nineteenth century.6
The Georgia statute appears to have been applied only once in a reported case during the nineteenth century. In the 1860 case of McGinnis v. State, the trial court defined riot as a “violent” act committed by two or more persons, and