State v. BrantleyState v. Brantley
- Reporters:
- , ,
- Before:
- Holmes
The opinion of the court was delivered by
Holmes, J.:
This is an appeal by the State under
Defendant is an inmate at the state penitentiary in Lansing. The State’s complaint alleged that on September 27, 1983, defendant stabbed and killed Lawrence Matthews, Jr., another inmate, with a knife. The first count charged defendant with felony murder, claiming the homicide occurred during defendant’s possession of a weapon in a penal institution contrary to
At the preliminary hearing, the evidence was that the defend
*380
ant waived his
Miranda
rights and gave a statement to prison officials. Brantley told them he had armed himself with a thirteen-inch metal homemade knife following a dispute with Matthews earlier in the day. He admitted stabbing Matthews. At the conclusion of the evidence defendant contended mere possession of a knife in violation of
“Despite the arguments of the State, there really is no meaningful distinction between the facts in Underwood and the facts in this case. For reasons set forth more fully in that opinion . . . the Court does rule that in fact a felony murder charge cannot be supported by a mere possession and, therefore, the Court will dismiss Count One without prejudice to refiling as a different charge. The Court will bind over the defendant for arraignment on Count Two, finding that in fact there is probable cause to believe that he had committed the offense charged . . . possession of contraband at the Kansas State Penitentiary.”
Broadly phrased, the issue on appeal is whether an inmate’s possession of a weapon in violation of
“Traffic in contraband in a penal institution is introducing or attempting to introduce into or upon the grounds of any institution under the supervision and control of the director of penal institutions or any jail, or taking, sending, attempting to take or attempting to send therefrom or any unauthorized possession while in aforesaid institution or distributing within any aforesaid institution, any narcotic, synthetic narcotic, drug, stimulant, sleeping pill, barbiturate, nasal inhaler, alcoholic liquor, intoxicating beverage, firearm, ammunition, gun powder, weapon, hypodermic needle, hypodermic syringe, currency, coin, communication, or writing without the consent of the warden, superintendent or jailer.
“Traffic in contraband in a penal institution is a class E felony.”
Although a literal application of
In
State v. Underwood,
228 Kan. 294, we addressed the question whether the collateral felony of unlawful possession of a firearm by an ex-felon, in violation of
Writing for the Underwood majority, Justice Fromme noted that the logic of the felony murder rule is based on the theory of transferred intent.
“The malicious and premeditated intent of committing the inherently dangerous collateral felony is transferred to the homicide to supply the elements of malice and premeditation without further proof. Consistent with this thinking, most courts require that the collateral felony be inherently dangerous for the felony murder rule to be applicable. [Citation omitted.]
‘In the typical case of felony-murder, there is malice in “fact,” express or implied; the malice is implied by the “law.” What is involved is an intended felony and an unintended homicide. The malice which plays a part in the commission of the felony is transferred by the law to the homicide. As a result of the fictional transfer, the homicide is deemed committed with malice; and a homicide with malice is common law murder.’ 2 Wharton’s Criminal Law § 145, p. 204 (14th ed. 1979).” 228 Kan. at 303.
The court adopted the rule that the elements of the collateral felony should be viewed in the abstract, and the circumstances of the commission of the felony should not be considered in determining whether the collateral felony is inherently dangerous to human life. 228 Kan. 294, Syl. ¶ 5.
Applying this rule to the facts of
Underwood,
the majority concluded the ex-felon’s possession of a firearm in violation of
“This crime is a status crime in that it is limited to drunkards, drug addicts and ex-felons. It is malum prohibitum. The possession of the firearm is prohibited because a firearm in the possession of a habitual drunkard, a narcotics addict or an ex-felon is against the public policy of the State as declared by the legislature. The possession of the firearm when viewed in the abstract is not inherently dangerous to human life. This is true because it seems unlikely that mere possession, which has been defined as dominion and control over an object, and *382 not its use, could be undertaken in so dangerous a manner that the prohibited possession would result in murder in the first degree. The above meaning of the possession as contemplated in this firearm statute is taken from State v. Neal, 215 Kan. 737, 738-39, 529 P.2d 114 (1974). It appears quite impossible to find an intent in this collateral felony encompassing malice, deliberation and premeditation so as to transfer these elements to the homicide and relieve the prosecution from proof of the same. If these elements are present in the use of the firearm they are not present in the possession of the firearm. They should then be proven as elements of premeditated first degree murder by reason of the malicious and deliberate use of the gun.” 228 Kan. at 303-04.
The court also considered the harsh results flowing from application of the felony murder rule, in particular the accused’s inability to plead the defenses of accident, lack of malice, heat of passion and self-defénse. The conclusion reached in Underwood was that, viewing the elements of the collateral felony in the abstract, unlawful possession of a firearm by an ex-felon is not a felony inherently dangerous to human life and will not sustain a conviction for murder in the first degree under the felony murder rule.
The State argues the basic element distinguishing this case from Underwood is the situs of the offense and that the security considerations prevailing in a prison render possession of contraband therein inherently dangerous to human life. Reduced to its essence, the argument is that it is proper to infer the existence of the requisite mental elements required in first-degree murder because of the accused’s status as a prisoner or because of the accused’s presence within the confines of the penal institutions. In the present case the State is requesting a rule which would operate to make every homicide committed by a prisoner possessing contraband murder in the first degree. To state that a person’s status is the controlling factor ignores the fact that homicides “behind the walls” are as capable of occurring by accident, in self-defense or heat of passion, or without the requisite mental state, as are homicides occurring among the free population. We do not agree with the State’s position. Even assuming the accused’s status as an inmate is a relevant consideration, it would be unreasonable and overbroad to adopt a rule imputing the malice, premeditation and deliberation necessary for first-degree murder every time an inmate violates the rules against possession of contraband. If these mental elements exist in a particular case, it imposes no undue burden on the State to prove them, and the fiction of felony murder is unnecessary for *383 conviction. If these mental elements do not exist, it would be a travesty to elevate an accidental killing, or a killing in self-defense, into first-degree murder through the felony murder doctrine, thereby foreclosing an accused’s ability to plead the traditional defenses and virtually insuring conviction of a crime the accused simply did not commit.
We agree with the trial court that our decision in
Underwood
is controlling. A violation of
The judgment is affirmed.