The PEOPLE, Plaintiff
James Edwards WASHINGTON, Defendant and Appellant
Supreme Court of California, In Bank
62 Cal.2d 777, 402 P.2d 130, 44 Cal.Rptr. 442 (1965)
TRAYNOR, Chief Justice.
from a judgment of conviction entered upon jury verdicts finding him guilty of first degree robbery (Pen.Code, ss 211, 211a)
and first degree murder and fixing the murder penalty at life imprisonment. (Pen.Code, ss 187, 189, 190, 190.1.) He was convicted
of murder for participating in a robbery in which his accomplice was killed by the victim of the robbery.
Shortly before 10
p. m., October 2, 1962, Johnnie Carpenter prepared to close his gasoline station. He was in his office computing the
receipts and disbursements of the day while an attendant in an adjacent storage room deposited money in a vault. Upon hearing
someone yell 'robbery,' Carpenter opened his desk and took out a revolver. A few moments later, James Ball entered the
office and pointed a revolver directly at Carpenter, who fired immediately, mortally wounding Ball. Carpenter then hurried
to the door and saw an unarmed man he later identified as defendant running from the vault with a moneybag in his right hand.
He shouted 'Stop.' When his warning was not heeded, he fired and hit defendant who fell wounded in front of the station.
The Attorney General,
relying on People v. Harrison, 176 [p. 780] Cal.App.2d 330, 1 Cal.Rptr. 414, contends that defendant was properly convicted
of first degree murder. In that case defendants initiated a gun battle with an employee in an attempt to rob a cleaning
business. In the cross fire, the employee accidentally killed the owner of the business. The court affirmed the
judgment convicting defendants of first degree murder, invoking Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d
183, and People v. Podolski, 332 Mich. 508, 52 N.W. 2d 201, which held that robbers who provoked gunfire were guilty of first
degree murder even though the lethal bullet was fired by a policeman.
Defendant would distinguish
the Harrison, Almeida, and Podolski cases on the ground that in each instance the person killed was an innocent victim, not
one of the felons. He suggests that we limit the rule of the Harrison case just as the Supreme Courts of Pennsylvania
and Michigan have limited the Almeida and Podolski cases by holding that surviving felons are not guilty of murder when their
accomplices are killed by persons resisting the felony. (Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472; People v. Austin,
370 Mich. 12, 120 N.W.2d 766; see also People v. Wood, 8 N.Y.2d 48, 201 N.Y.S.2d 328, 167 N.E.2d 736.) A distinction based
on the person killed, however, would make the defendant's criminal liability turn upon the marksmanship of victims and policemen.
A rule of law cannot reasonably be based on such a fortuitous circumstance. The basic issue therefore is whether a robber
can be convicted of murder for the killing of any person by another who is resisting the robbery.
'Murder is the unlawful
killing of a human being, with malice aforethought.' (Pen.Code, s 187.) Except when the common-law-felony-murder doctrine
is applicable, an essential element of murder is an intent to kill or an intent with conscious disregard for life to commit
acts likely to kill. (See People v. Thomas, 41 Cal.2d 470, 475, 261 P.2d 1 (concurring opinion).) The felony-murder doctrine
ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony. (People v. Ford,
60 Cal. 2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Coefield, 37 Cal.2d 865, 868, 236 P.2d 570.) That doctrine
is incorporated in section 189 of the Penal Code, which provides in part: 'All murder * * * committed in the perpetration
or attempt to perpetrate * * * robbery * * * is murder of the first degree.' Thus, even though section 189 [p. 781] speaks
only of degrees of 'murder,' inadvertent or accidental killings are first degree murders when committed by felons in the perpetration
of robbery. (People v. Coefield, supra, 37 Cal.2d 865, 868, 236 P.2d 570; People v. Boss, 210 Cal. 245, 249, 290 P.
When a killing is
not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for
the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the
killing was a risk reasonably to be foreseen and that the robbery might therefore be regarded as a proximate cause of the
killing. Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is
not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony.
To include such killings within section 189 would expand the meaning of the words 'murder * * * which is committed in the
perpetration * * * (of) robbery * * *' beyond common understanding.
The purpose of the
felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings
they commit. (See Holmes, The Common Law, pp. 58-59; Model Penal Code (Tent.Draft No. 9, May 8, 1959) s 201.2, comment
4 at pp. 37-38; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 35-36 (1949-1953).) This purpose
is not served by punishing them for killings committed by their victims.
It is contended,
however, that another purpose of the felony-murder rule is to prevent the commission of robberies. Neither the common-law
rationale of the rule nor the Penal Code supports this contention. In every robbery there is a possibility that the
victim will resist and kill. The robber has little control over such a killing once the robbery is undertaken as this
case demonstrates. To impose an additional penalty for the killing would discriminate between robbers, not on the basis
of any difference in their own conduct, but solely on the basis of the response by others that the robber's conduct happened
to induce. An additional penalty for a homicide committed by the victim would deter robbery haphazardly at best.
To 'prevent stealing, (the law) would do better to hang one thief in every thousand by lot.' (Holmes, The Common Law,
A defendant need
not do the killing himself, however, [p. 782] to be guilty of murder. He may be vicariously responsible under the rules
defining principals and criminal conspiracies. All persons aiding and abetting the commission of a robbery are guilty
of first degree murder when one of them kills while acting in furtherance of the common design. (People v. Boss, 210 Cal.
245, 249, 290 P. 881; People v. Kauffman, 152 Cal. 331, 334, 92 P. 861.) Moreover, when the defendant intends to kill or intentionally
commits acts that are likely to kill with a conscious disregard for life, he is guilty of murder even though he uses another
person to accomplish his objective. (Johnson v. State, 142 Ala. 70, 38 So. 182, 2 L.R.A.,N.S., 897; see also Wilson v. State,
188 Ark. 846, 68 S.W.2d 100; Taylor v. State, 41 Tex.Cr.R. 564, 55 S.W. 961.)
Defendants who initiate
gun battles may also be found guilty of murder if their victims resist and kill. Under such circumstances, 'the defendant
for a base, anti-social motive and with wanton disregard for human life, does an act that involves a high degree of probability
that it will result in death' (People v. Thomas, 41 Cal.2d 470, 480, 261 P.2d 1, 7 (concurring opinion)), and it is unnecessary
to imply malice by invoking the felony-murder doctrine. [n. 2] To invoke the felony-murder doctrine to imply malice
in such a case is unnecessary and overlooks the principles of criminal liability that should govern the responsibility of
one person for a killing committed by another. (See Hart and Honore , Causation in the Law, pp. 296- 299; Hall, Criminal
Law, 2d ed., pp. 270-281; Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; Brett, An
Inquiry Into Criminal Guilt, pp. 123-124.)
2. One scholar
has commented that 'People v. Harrison, 176 Cal.App.2d 330, 1 Cal.Rep. 414 (1959), is probably not, strictly speaking, a felony-murder
case at all, but rather a case taking a very relaxed view of the necessary causal connection between the defendant's act and
the victim's death, and approach which is possible quite independent of the felony-murder rule.' (Packer, The Case for
Revision of the Penal Code, 13 Stan.L.Rev. 252, 259, fn. 39.)
To invoke the felony-murder
doctrine when the killing is not committed by the defendant or by his accomplice could lead to absurd results. Thus,
two men rob a grocery store and flee in opposite directions. The owner of the store follows one of the robbers and kills
him. Neither robber may have fired a shot. Neither robber may have been armed with a deadly weapon. If the
felony- murder doctrine applied, however, [p. 783] the surviving robber could be convicted of first degree murder (see Commonwealth
v. Thomas, 382 Pa. 639, 117 A.2d 204, overruled by Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472), even though he was
captured by a policeman and placed under arrest at the time his accomplice was killed. (Commonwealth v. Doris, 287 Pa.
547, 135 A. 313; see People v. Corkery, 134 Cal.App. 294, 25 P.2d 257.)
rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes
the relation between criminal liability and moral culpability. (See e. g., Model Penal Code (Tent. Draft No. 9, May
8, 1959) s 201.2, comment 4 at pp. 37-39; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 34-43,
45 (1949-1953), 3 Stephen, History of the Criminal Law of England 57-58; 74-75 (1883); Packer, The Case for Revision of the
Penal Code, 13 Stan.L.Rev. 252, 259; Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50;
66 Yale L.J. 427.) [n. 3] Although it is the law in this state (Pen.Code, s 189), it should not be extended beyond any
rational function that it is designed to serve. Accordingly, for a defendant to be guilty of murder under the felony-murder
rule the act of killing must be committed by the defendant or by his accomplice acting in furtherance of their common design.
(Commonwealth v. Campbell, 7 Allen 541, 89 Mass. 541; Butler v. People, 125 Ill. 641, 18 N.E. 338, 1 L.R.A. 211; Commonwealth
v. Moore, 121 Ky. 97, 88 S.W. 1085, 2 L.R.A., N.S., 719; State v. Oxendine, 187 N.C. 658, 122 S.E. 568; See also People v.
Ferlin, 203 Cal. 587, 597, 265 P. 230.) Language in People v. Harrison, 176 Cal.App.2d 330, 1 Cal. Rptr. 414, inconsistent
with this holding, is disapproved.
3. The felony-murder
rule has been abolished in England (English Homicide Act, s 1, 1957, 5 & 6 Eliz. II, c. 11), and has been converted to
a rebuttable presumption of malice by the Model Penal Code. (Model Pen.Code (Tent. Draft No. 9, May 8, 1959) s 201.2.)
* * *
The judgment is affirmed
as to defendant's conviction of [p. 785] first degree robbery and reversed as to his conviction of first degree murder.
BURKE, Justice (dissenting).
The unfortunate effect of the decision of the majority in this case is to advise felons:
'Henceforth in committing
certain cirmes, including robbery, rape and burglary, you are free to arm yourselves with a gun and brandish it in the faces
of your victims without fear of a murder conviction unless you or your accomplice pulls the trigger. If the menacing
effect of your gun causes a victim or policeman to fire and kill an innocent person or a cofelon, you are absolved of responsibility
for such killing unless you shoot first.'
Obviously this advance
judicial absolution removes one of the most meaningful deterrents to the commission of armed felonies.
* * *
I agree with the
majority (p. 445) that one purpose of the felony-murder rule is to deter felons from killing negligently or accidentally.
However, another equally cogent purpose is to deter them from undertaking inherently dangerous felonies in which, as the majority
state (p. 445), a 'killing was a risk reasonably to be foreseen. * * * In every robbery there is a possibility that
the victim will resist and kill.' As declared in People v. Chavez (1951) 37 Cal.2d 656, 669, 234 P.2d 632, 'The statute
(Pen.Code, s 189) was adopted for the protection of the community and its residents, not for the benefit of the lawbreaker.'
Why a felon who has undertaken an armed robbery, which this court now expressly notifies him carries a 'risk and 'a possibility
that the victim will resist and kill,' and which 'might therefore be regarded as a proximate cause of the killing' should
nevertheless be absolved because, fortuitously, the victim can and does shoot first and the lethal bullet comes from the victim's
gun rather than from his own, will be beyond the comprehension of the average law-abiding citizen, to say nothing of that
of victims of armed robbery. Nor is such a view compatible with the felony-murder doctrine.
But, say the majority,
'The robber has little control over such a killing once the robbery is undertaken,' and 'To impose an additional penalty for
the killing would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the
basis of the response by others that the robber's conduct happened to induce.' (p. 445) A robber has no control over
a bullet sent on its way after he pulls the trigger. Certainly his inability to recall it before it kills does not cloak
him with innocence of the homicide. The truth is, of course, that the robber may exercise various 'controls over' a
possible killing from his victim's bullet 'once the robbery is undertaken.' The robber can drop his own weapon, he can
refrain from using it, he can surrender. Other conduct can be suggested which would tend to reassure the victim and
dissuade him from firing his own gun. Moreover, the response by one victim will lead to capture of the robbers, while
that of another victim will permit their escape. Is the captured felon to be excused from responsibility for his crime,
in order not to 'discriminate between robbers * * * solely on the basis of the response by others that the robber's conduct
happened to induce'?
[p. 791] The robber's
conduct which froms the basis of his criminal responsibility is the undertaking of the armed felony, in which a 'killing was
a risk reasonably to be foreseen' including the 'possibility that the victim will resist and kill.' If that risk becomes reality
and a killing occurs, the guilt for it is that of the felon. And when done, it is murder in the first degree calling
for that the knowledge that this awesome, that tthe knowledge that this awesome, sobering, terrifying responsibility of one
contemplating the use of a deadly weapon in the perpetration of one of the listed offenses is not the strongest possible deterrent
to the commission of such offenses belies what is being demonstrated day after day in the criminal departments of our trial
I would hold, in
accord with the rationale of People v. Harrison, supra (1959) 176 Cal.App.2d 330, 1 Cal.Rptr. 414, that the killing
is that of the felon whether or not the lethal bullet comes from his gun or that of his accomplice and whether or not one
of them shoots first, and would affirm the judgment of conviction of murder in the instant case.