*1 PLAINTIFF-RESPONDENT, JERSEY, OF NEW STATE VASQUEZ, CANOLA, DEFEND- LEON LEONEL A/K/A ANT-APPELLANT. Aрril 7, Argued September 1976 Decided *2 Mr. P. Edward Hannigan, Assistant De- Public Deputy fender, the cause argued for defendant G. Stanley {Mr. Ness, Van Public Defender, attorney).
Mr. James Mayer, Assistant Prosecutor, argued cause for respondent Woodcock, Jr., G. Joseph Bergen {Mr. Prosecutor, County attorney).
Ms. Andrea B. Grundfest, Prosecutor, Assistant argued the 'cause for curiae William Hyland, amicus F. At- {Mr. torney Jersey, General New Messrs. attorney); David S. Giccó, Baime John J. and De Deputy Attorneys General, of counsel). of the court opinion was delivered by D., P. J. A.
Conford, Temporarily Defendant, Assigned. with along three confederates, in the process robbing a store when a victim of the robbery, attempting to resist of the perpetration crime, fatally shot one of the co- felоns. The sole issue for our resolution whether, under N. J. A. 2A:113-1, S. defendant may be held for liable A felony murder. divided part of the Appellate Division determined question in the affirmative. 135 N. J. Su- dissent, is here
per. appeal (1975). Because as of R. 2:2-1 (a). right. opin
The facts of this case are stated adequately 227- Super. ion of Division. 135 J. the Appellate determination be sum they may Eor purposes this and his jewelry marized as owner store follows. The an attempt robbery, engaged resist armed employee, in a A four robbers. skirmish one of the physical shoot assistance, conspirator, upon began second called Both the and the owner returned ing, gunfire. store felon, Lloredo, owner and were fatally one shot latter firearm exchange, by the owner.. on counts two others were indicted two Defendant count of murder, having one count of robbery were robbery. The murder counts been armed during victim deaths, based on the respectively, *3 murder counts After trial on the defendant the co-felon. terms both and was sentenced to concurrent found on guilty unanimously Division Appellate of life imprisonment. The the vic- murder of the affirmed the conviction a ad- for certification tim, and this court denied petition ma- However, when Division thereto. the Appellate dressed of motion the trial court’s denial to dismiss jority upheld co-felon, Judge to of the count addressed the homicide the Handler dissented. the murder rule felony of
Conventional formulations in this case. As stated liability encompass would not seem to Rеvolution, the American about the time of by Blackstone do if intends to another felony, the was: one rule “And Blackstone, 4 is also murder.” man, kills a this undesignedly The 200-201; Cooper, State Commentaries* see Madden, N. J. 361, N. J. Ct. State v. 1833); 370 (Sup. L. In case the felonious intent supplies such 384 (1972). A Ibid. study for murder. recent requisite malice authori- such felony rule early formulations Coke, Blackstone and later ones Lord Poster and ties as Holmes that they and Justice concluded Stephen Judge' were concerned solely where the felon situations or a confederate actual Comment, did killing. Rutgers L. Rev. 600-601 v. Red and see Commonwealth (1970); line,, 391 Pa. Con (Sup. trary to division of view in the modern American eases on the that the point infra), Eng has been (see observed lish hold courts never murder rule to applied felon of his co-felon at the hands death A Prevezer, victim. “The Homicide Act: intended English L. New Col. Murder,” To Revise The Of Attempt Law Comment, ubi cit. supra, Rev. see (1957); L. Rutgers Rev. 600-601. whether a broader in the case is present — issue precise of a felon than the
concept foregoing specifically, the felony a co-felon effected resisting for the death of — to of our applicable statute required by language S. A. N. J. 2A:113-1. area of murder. general This reads: arson, burg- committing attempting person, any or to commit If against sodomy any
lary, rape, robbery, kidnapping, or unlawful act may probable consequences peace State, of which the this anyone bloodshed, another, or ensues kills if any committing attempting act; any or if commit such crime or or judge, magistrate, sheriff, coroner, constable or other kills a justice, criminal, state, civil or of this or a marshal officer either justice, criminal, of the United or other officer of either civil or duty, States, office or or kills in the execution of his his specially not, endeavoring assistants, aid whether called to his or peace apprehend criminal, knowing authority preserve private suppress assistant, person endeavoring or kills a such affray, apprehend criminal, knowing intention with *4 person interposes, hilling private then so such stick murder, (emphasis added). of Law intact substantially This is traceable to the statute 18, 1796, of N. Laws The March J. §66, [1701-1820] have inclusion of kidnap substantive been the only changes and the еxcision of the specified the felonies among ping punishment by Appellate death. original prescription above-emphasized the the view that was of majority Division clause,” “ensues it as the referred statute, to’by portion N. J. Super. at. It said (135 result it arrived compelled 235): mere statute, must be armed statute. cardinal * upon the crime.1 [********] * * * * * Legislature common a surplusage In our We felon standing alone, given, rules of think it law. Such at common law view to extend if for deaths which where possible, statutory the statute is clear that embody criminal appears to interpretation construction that every indicates an intention the clause was responsibility occur hold concept word, the other liable during would violate one clausе all full beyond not intended to the commission and sentence participants provisions force on the murder under imposed part of in an effect of a be Handler, in dissenting, cited Justice)
Judge (now in those other juris view majority decisions representing and said question, the general which had considered dictions for the hold that “a felon cannot be found guilty they commission of the during of an accomplice occurring N. Super. J. at 236. to the ensues clause As felony.” Handler stated (id. statute, Judge 238): 237— catalyst my not the which trans- In view the “ensues clause” is felony-murder culpability in context of criminal mutes agency argument presented proximate cogent has been cause. No that, by language clause,” the inclusion of the of the “ensues responsibility upon Legislature intended to affix criminal felon for highest degree justifiable, for the accidental or unin- murder in theory Rather, tended death a co-felon on the cause. purpose appear legislative of the “ensues clause” would attempt scope responsibility to insure broadened criminal Kress, decisions are in accord. State J. 1Two trial court 1969) (probably distinguishable Super. (Law in that there Div. seeking used the defendant as a shield in decedent was pp. cases, infra, 218-219; escape; of “shield” State v. see discussion 1974). Super. (Law Suit, Burton, N. J. Contra: State v. Div. Super. (Law N. J. Div. *5 primary who, respect in as a concert or to a defendant actor or with through actually constructively, agency another, or the criminal person. felоny, another furtherance of death of but in the causes the clause,” might statute, the without well be even the “ensues While interpreted legislative province applied, and so give it was within to emphatic expression u'nmistakeable and of this intent. It does follow, thought by majority expressed therefore, and not as in Super. Burton, 1974), (Law State J. Div. 130 N. surplusage acquires meaning, “ensues clause” is together a sensible mere phrase only upon statute, with the of the final thesis of contrary, my cause. On the in “ensues view clause” legislative expand intent, defining felony murder, underscores the class might victims death course of a whose occur killings might cover considered dis otherwise be too tantly felony, provided they connected fall its res within gestae. understoоd, So entire reasonable statute makes sense only actually participates limited when killing, to a defendant who in the through agency partner crime, or does so in the principal directly abettor, as whether aider and whether indirectly, by acts or conduct in furtherance of commission of the felony. Por reasons to be more fully we are in accord explicated, with, the conclusion arrived at in the dissent.
Before of the through analysis lan attempting, statutory itself, a resolution of the views of guage contrasting below, statute entertained it will be helpful survey law in the American progress pertinent jurisdic other tions. however, it seems Preliminarily, significant contemporaneous subsequent assessment of the general meaning the ensues сlause our statute to the prior decade, and over past of its long period presence our books, statute there no apparent is evidence that felon ever with murder charged for a at the hands of with the persons associated felonious undertaking. Cf. Service, v. N. Pringle J. Civil Dept. J. 332- Fabrics, Inc., (1965); Kingsley Hawthorne 41 N. J. (1964). It view clearly majority the country throughout that, at least in theory, doctrine of felony murder does not extend a killing, although out of the growing com- mission of the if felony, directly attributable to the act of him other than the defendant or associated with those *6 ex rel. v. unlawful Commonwealth Smith enterprise. Ct.
Myers,
218,
438 Pa.
261
2d 550
1970); People
(Sup.
v.
P.
777,
442,
62 Cal.
44 Cal.
402
2d
Washington,
2d
Rptr.
Balliro,
130
Commonwealth v.
349 Mass.
1965);
Ct.
(Sup.
v.
505, 209 N. E.
People
2d 308
Jud.
(Sup.
1965);
Ct.
Wood,
N. E.
48,
328,
8 N. Y.
N. Y. S.
2d 736
2d
201
2d
167
Warren,
567, 205
v.
44 Mich. App.
(Ct. App. 1960); People
In and
W.
Alvarez v. District Ct.
2d 599 (Ct. App. 1973);
Denver,
P.
37,
For
&
Colo.
2d 1131
City Cty.
186
525
(Sup.
Garner,
563,
So.
855
La.
115
2d
v.
238
Ct.
State
1974);
W.
Sup.
v.
237 S.
486
Majors,
(Mo.
State
Ct. 1959);
(Sup.
Moore,
S.
97, 88 W.
Ky.
121
Commonwealth
Ct.
v.
1922);
Hicks,
Clark
v.
89
County
Sheriff,
1905);
1085 (Ct. App.
Oxendine,
State v.
1973);
Ct.
78,
213 another (1970), phase of which is reported in Cal. 686, 70, Cal. P. Rptr. 2d 622 Ct. (Sup. 1974) (where a co-felon was killed).
At one time the
cause
theory
espoused by
Court,
Pennsylvania
Commonwealth v.
Supreme
Moyer,
181,
357 Pa.
cert. den. 340
U. S.
71 S. Ct.
however, actually it was indicates the opinion (although a distinction creating situation between one; 483) A. 137 2d a half-hearted the killing an innocent party the victim was deceased in which the “excusable” and therefore merely Twelve years thus “justifiable.”4 and the killing was a felon Almeida a case overrule court did later the Pennsylvania ex (Commonwealth Smith. compаnion, Almeida’s involving 218, A. 2d (Sup. 438 Pa. v. Myers, rel. Smith alia, criticism lev inter the harsh noted, The court 1970)). deter rule, its doubtful the common-law eled against in Almeida to sup cases cited effect, rent the failure of the therein, inappropriateness reached the conclusions port prosecution, to homicide principles tort proximate-cause Almeida drawn distinction “will-of-the-wisp” A. homicides. 261 2d and excusable between justifiable court * * * of a doubt concluded, a shadow "beyond at 553-558. It Thomas, Pa. Thomas Almeida and [Commonwealth in the an iberrations 639, 117 constituted [sic] 204] Id. at 553. adjudicature.” nals of Anglo-American illustrates the decisions in Michigan The course in the Pennsylvania development cases influence In jurisdictions. People murder rule in other Podolski, W. cert. 508, Ct.), 2d 201 (Sup. 332 Mich. S. Ct. L. Ed. reh. den. den. 344 U. S. L. Ed. 687 the bullet S. Ct. (1952), U. S. from the revolver of a fellow officer came deceased killing *8 juris 4Although, seen, in a as will be this distinction survives few since, alia,, dictions, principle, in inter it has been criticized immunity liability of the third killer irrelevant criminal Comment, culpability the criminal of the accused felon. See to (1958). L. Rev. See also Commomvealth ex rel. Harv. Myers, supra ; (261 558) v. 2d at Commonwealth v. Bal Smith 314) ; liro, supra (209 People Washington, supra N. E. v. 2d at Rptr. Morris, (44 132) ; op. supra, Cal. 402 P. 2d at cit. op. 56; Comment, supra, Pa. U. L. Rev. at cit. Pa. L. 106 U. Rev. at 1178. officer defendant’s armed of a attempting robbery stop In conviction, bank. the murder the court adopted affirming both the court language reasoning Pennsylvania Commonwealth v. early case of Moyer, supra, effect that if а robber sets in motion a of events which chain should have been he is liable for contemplation, within his 52 N. W. any death results. 2d Redline, After the court course Pennsylvania changed Austin, v. supra, People court suit in Michigan followed de Mich. 120 N. W. where 1963), 2d 766 (Sup. fendants’ indictments for the of their accomplice slaying Penn victim were on heavily quashed. Relying sylvania’s murder felony curtailment expansion Podolski, rule, nonetheless court, not while overruling refused to where the deceased extend instances awas co-felon. Court has not had occa
Although Michigan Supreme sion to since, reconsider Podolski two intermediate appellate In on its continued viability. court decisions have cast doubt Scott, N. W. 29 Mich. 2d People App. (Ct. tort rejected application proxi the court App. 1971), Although mate cause to homicide principles prosecutions. an conviction involuntary the case involved manslaughter of a in an automobile collision policeman during a “more direct chase, automobile requirement court’s of the de causal connection between the criminal conduct on the fendant and the homicide and its reliance charged” later decisions are Pennsylvania equally applicable charges In murder. a case directly involving rule, held, lower in People another court appellate Warren, 567, 205 N. W. 599 (Ct. App. 44 Mich. App. the applicabil fact 1973), operative determining the killing, whether the defendant did of the rule was ity of the victim. the idеntity influential were also developments
The Pennsylvania above, Pennsylvania cases cited Illinois. Prior to in People a rule of causation Illinois had adopted *9 216 246, E. 539 Ct. where 1935),
v. 359 Ill. 194 N. Payne, (Sup. of a of murder for death bystander conviction felon’s of who the absence of fired despite any proof was affirmed this fact immaterial The court found (194 the fatal shot. N. E. at 543): attempted robbery reasonably anticipated might an -would It be resistance, might during the victim either
meet
which
be shot
with
attempting
prevent
robbery,
or some one
himself
else
attempting
perpetrate
would
and those
murder.
Redline
deci
Nevertheless,
Pennsylvania
following
the Illinois courts refused to
sion,
apply
proximate
accomplice
where the decedent was
сausation test
v. Mor
felony. People
defendant killed
victim of
ris,
N.E.
566,
1971);
Ill.
274
2d 898
App.
(Ct. App.
1
3d
Hudson,
N. E.
41
v.
6 Ill.
3d
287
2d
People
App.
rationale,
The
inconsistent
(Ct.
App.
quite
was
Payne,
was that
the lethal act
supra,
that applied
to commit
of the common design
done
furtherance
901;
N.E.
287 N.E.
43.
2d at
2d at
felony.
Hickman, 12
case,
Illinois
People
recent
In
most
aff’d
1973),
N.E.
App.
2d
(Ct.
Ill.
3d
App.
N.E.
cert. den.
1974),
Ct.
(Sup.
Ill.
2d
2d
L Ed.
(1975),
95 S.
421 U. S.
killed
shot and
mistakenly
an officer chasing burglars
where
Payne,
officer,
imposed pursuant
was
a fellow
co-felon
of differentiation of the
theory
another
supra, yet
—
assumption-of-risk
advanced
the dubious
cases was
killing
in motion
co-felon “assisted
setting
concept
cause
his
proximate
of events
chain
the civil law there
criminal
law as in
in the
and therefore
297 N.E.
the victim”.
2d at
no redress
taken a
course
wholly unique
cases have
The California
law.
Court of
in-
Appeal,
of the criminal
in this area
cases,
adopted
first
early Pennsylvania
fluenced
Harrison, 176 Cal.
In
People
theory.
cause
*10
court
1959),
414
330,
Rptr.
(Ct. App.
1 Cal.
App. 2d
when the
murder
of first degree
held the defendants guilty
robbed exchanged gunfire
owner of a store being
in People
But
the robbers and killed
employee.
442,
Rptr.
44 Cal.
777,
v.
62
2d
Washington,
Cal.
re
P.
Court
Supreme
402
2d 130
Ct.
(Sup.
1965),
aof
for the death
a
felon liable
fused to hold
surviving
law view
common
co-felon,
instead
to the
reverting
It
v. Harrison.
Campbell, supra,
People
overruling
:
134)
P. 2d at
446,
Cal.
at
(44
Rptr.
said
felony-
Accordingly,
murder under
defendant
for a
by
killing
defendant
be committed
tbe
must
rule
act of
murder
design.
acting
by
accomplice
of their common
furtherance
bis
neces
dicta,
that it was not
however, the
stated
court
In
to imply
murder rule in order
the felony
to invoke
sary
malice
and that such
for murder
the malice requisite
from the
an act (apart
defendant does
when the
evident
that
of probability
involves a high degree
felony) “that
P.
at
446, 402
2d
at
44 Cal. Rptr.
in death”.
will result
Gilbert,
690,
63 Cal. 2d
People
134. Accordingly,
vacated
1965),
P.
Ct.
2d 365
909,
(Sup.
Rptr.
47 Cal.
L. Ed. 2d
1951, 18
87 Ct.
263,
U. S.
S.
other grds.
liabil
strict
that for the
the notion
while
adhering
(1967),
accom
felon or his
apply
murder rule to
ity of
the impli
recognized
the court
killing,
must do the
plice
from the
Washington
“entirely apart
cation of
a defendant
when
be established
rule, malice may
murder
under such circumstances
battle, and
a gun
initiates
by
committed
killing
murder
he
be convicted
may
But the
Alameda County, 3 Cal. 3d 477 P. Rptr. Cal. 2d 131 another of the case Cal. 3d (1970) (see phase in 13 117 Cal. Rptr. P. 1974)), (Sup. where the battle was initiаted gun operator robbed, store one of the In liquor being co-felons. killing the denial of a affirming motion set aside the criminal information, the court noted that who fired first shot *11 determinative, was not but that the central to be inquiry, a fact-finder, resolved was “whether conduct defendant or his accomplices sufficiently was provocative lethal resistance to a support malice.” finding implied Rptr. 91 Cal. 378, 477 P. 2d at at 134. in (emphasis orig Hence inal). circumstances, a “depending upon gun battle can be initiated by acts of short provocation falling the first firing shot.” Ibid. Three justices dissenting thought majority repudiating previous were holdings court that “robbers cannot convicted of murder for be aby victim killing unless commit the robbers malicious acts, in addition to the acts constituting underlying felony, demonstrate culpability beyond that of other robbers”. 91 Cal. P. Rptr. at 477 at 2d
To be from the situation distinguished here, before us above, of the cases generality discussed are the so-called “shield” cases. first of these were the State, Taylor cases of v. 41 Tex. Cr. R. companion 564, 55 S.W. 961 (Cr. App. 1900) aff’d S.W. 330 (Cr. App. State, Keaton v. 41 Tex. Cr. R. 1901), S.W. 1900). In (Cr. App. attempting to after escape robbing train, defendants thrust the brakeman in front of them shield, as a as a result of which he law fatally was shot in defendants difficulty finding had no The court officers. correct Taylor noted the murder. The court in could case doctrine Campbell ness of the actually act either for homicide unless the held liable be it was him, but indicated committed constructively forced where defendants deceased a case inapplicable carry they might in order that of danger occupy place Keaton, the court 963-964. In out the crime. 55 S.W. at “reasonable, na said defendant would be responsible act” of deceased placing tural and result of probable his conduct of the 57 S.W. 1129. The of his life. danger “express defendants in such is said to reflect cases as these malice”, a murder conviction. Commonwealth justifying v. State, Redline, Wilson v. also supra See (137 482). 188 Ark. Johnson 1934); 2d 100 Ct. (Sup. S.W. State, 1972); 252 Ark. (Sup. S.W. 2d Kress, State v. N. J. supra Super. (105 country in this the development review of This acts for lethal culpability in relation to murder rule limitation to that, early its despite of non-felons shows their accomplices, felons themselves acts of the deadly no can transformations and several has undergone rule As one universal application. stated terms longer from the cases reported noted, appears commentator liability; field denied until all cases the general up vacillation; and from 1922 to the period People Illinois decision from 1935 (and cases *12 the on impose liability 1956 tended to Payne, to supra) knew causation where defendant of grounds Morris, supra, could be expected. forceful resistance that Pennsyl But when the Pa. L. Rev. at 40. 105 U. note Redline, holding prior overruled its supra, vania court original position return to the of liability, apparent jurisdictions of other followed law, number common nonliability; since been towards suit, and the trend has A.L.R. cit. Annot., suрra (56 see to our Eeverting here, immediate task is to determine whether our own statute necessarily mandates proxi mate cause concept felony murder, as thought by Appellate Division assume, It is fair majority. to initially, that the Legislature had no special reason in 1796 or to dain a rule of felony murder beyond that ac generally cepted in Anglo-American at the jurisprudence end of the eighteenth century. As noted, above there then no precedent, either English American, for felon holding for killings hands others than the felon himself — or those confederated with him is to the so- say, called agency rule held But sway. above, as seen the view of the Appellate Division was that the “ensues clause” of N. J. S. A. 2A :113-1 must be deemed to have expаnded of the culpability felon to others killings by not con him, federated with if proximately related to felonious else enterprise, the clause would be meaningless surplusage in the However, act. other plausible for en motivations sues clause can be postulated consistent with a legislative intent to adhere to the traditional limitations of felony murder doctrine. Handler, below,
Judge dissenting suggested that the pur of the clause pose have been might to the class of expand victims felon’s acts cover all to within the killings res gestm even if felony, have they would formerly been considered too distant therewith, connected so as in long furtherance felony. N. J. Super. view This is also advanced by the Comment in Rut Rev., gers L. cit. op. supra Rutgers L. Rev. (24 at 606). It us, mоreover, seems the ensues clause could well have been intended to ensure effectuation of either or both following concomitants the traditional mur der rule: that accidental (a) or fortuitous “en homicides suing” were contemplated inclusion, purpose the statutory language the in being repel ference of a requisite kill, intent associated normally with the 'Till” unqualified word as used the initial clause *13 extend to acts that section; and (b) of the as killer-felon, accomplice or participation e. See, g., himself. State the killer well as those curiam Carlino, aff'd 1922) per N. J. L. (Sup. N. L. 292 & A. J. (E. hypotheses of these alternative suggested The significance diluted not persuasively the ensues clause is for in that majority Division of the Appellate contention self-contained fully pre the section itial is clause without rule of the standard scription as In similar to refuting position ensues clause. Di Law statute taken of the construction proper Kress, 105 N. supra, Super. J. vision in State “Ap observes: cited above cogently Comment Rutgers clause that the court assumed parently, [ensues] [Kress] clearly unless it reached conduct surplusage would be absence; meaningless clause is neither but the covered its scope "if clarifies the meaning nor redundant it Rev. at L. Rutgers of the statute”. another portion We agree. 605. ensues clause is inescapable
Einally, is “then section, such of the conclusion with the connected fortifies the This of murder”. so killing guilty person from the which “ensues” аs to view that even felony, liability commit the attempt commission or kill “so restricted to be murder is intended i.e., con his not third persons, agents, the felon ing”, Redline Pennsylvania limitation of the formably Rev. L. Rutgers doctrine. accommodated conven- readily have decided cases
Our “en- murder rule of the tional applications State, in Roesel v. Thus, sues” statute. verbiage defend- 1898), responding L. & A. (E. J. than he rather since accomplice his ant’s contention robbery, blow in the the fatal course had struck Roesel said court murder, he could not 223; added); (at emphasis *14 (cid:127) — n engaged purpose and a common the Manshande were in
Koesel robbery equally principals guilty Both of the deceased. were and by committing either, and death ensued for the acts done from if crime, attempting murder, such a or to commit the offence was other, by (emphasis whether the blow struck or the was added). Carlino, In State v. N. J. supra L. defendant (98 48), was not at the scene nor he crime was aware killing. Nonetheless court found that in enacting clause, ensues man that a Legislature “clearly intended be held might guilty he was although [of murder] actual if assailant he of con theory was on the guilty Id. structive inter presence.” 53. In course of this is pretation clause, ensues court addressed the sue of the J. sections, N. impact statutory relevant A. S. 2A:113-1 and N. J. L. 2, formerly S. 2A:113 — c. 1898, 235, and there found pp. §§ 824— was no intent change the common law: legislation suggest any Our in the sections cited intent does not change before, the law. The crime as remains the same crime legislation merely and the a has made a distinction view to punishment the difference in the the most between heinous * * aggravated grades least *. murder Id. at 53. Rosania,
See also State v.
33 N.
cert.
J.
den.
(1960)
The content and of N. S. history J. A. 2A:113-2 affords additional corroboration of the views as to the foregoing intent the ensues clause in S. A. J. 2A:113-1. The former section reads: lying poison, or perpetrated means is which Murder premeditated willful, any deliberate wait, kind of other or attempting per- perpetrating or killing, is committed which or sodomy, rape, hidnapping, arson, burglary, or or
petrate resisting, purpose of perpetrated for the in the course or is assisting effecting arrest, preventing or avoiding or of a lawful or police legal custody, or escape murder of a rescue from duty acting of his in the execution officer law other enforcement acting, person assisting murder in the such officer so is or of degree. second de- Any murder in the murder other kind of first designate by finding gree. jury shall of murder A degree second or in the first be murder verdict whether it their degree, (emphasis added). L. p. derive main contours of section this as sec. status which set the present *15 183, entitled L. p. first That act degree. superseded cases,” “An in certain Act to abolish of death the punishment It provided of murder. which created of the сrime degrees to effect any that murder “when without perpetrated design felony, of death, in the commission aby person engaged clearly be The wording shall murder in the third degree.” of kill of the act the felon as the contemplated perpetrator its down statute of 1839 and successors superseding ing. to N. J. A. notable for omission S. 2A:113-2 are offenders separate represented by of alleged category J. A. no ensues clause of N. S. 2A:113-1. Since specification of of murder was ever articulated degree fixed for category clause, it would in terms offenders within the ensues and fail would hardly likely Legislature provide if it were as subsumed within the initial clause not regarded so 2A:113-1, J. S. it is fair to assume that it was and that the ensues clause was regarded thought to have been subsequent legislatures intended be an rather than the the initial clause amplification of a of offenders. designation separate category in ex- alluded to the involved already anomaly We have of our statute felony effect murder inculpatory tending with the to lethal not associated felonious by persons acts case, Kress effort, to the prior when no activity apparent supra, use the statute for such a had been made purpose by prosecutors iu our entire since the history enactment of statute A 1796.5 New standard text alludes to Jersey the question and states that while the has not point been passed upon by the court of last resort it is “doubtful felons engaged are perpetrating if, the cоurse of the during robbery, a third person draws a gun, uses to aid in the robbers repulsing in so doing accidentally kills another person.” Schlosser, Criminal Laws New Jersey 57.16, (3d 1970) ed. 94. p. § With such the statute is background, facially assuming susceptible here interpretation State, advocated it is appropriate consider the public implications policy doctrine proposed as an extension of prior assumptions in this State as to the proper limitations of mur- the felony der rule.
Most modern progressive thought criminal jurispru dence restriction than favors rather expansion the felony murder rule. A text states: leading “The murder rule is somewhat in disfavor at the time. The present courts ap ply it when the law requires, but do so they grudgingly and tend to restrict its where appliсation the circumstances permit.” Pe rkins on Criminal Law ed. (2d It has 1969) been frequently observed that although rule was logical at its inception, when all death, felonies were punishable by its survival to modern times when other felonies are not *16 only 5Indeed, possibility allusion to the of such a basis of liability reports Bunk, our is found in State v. 4 J. cert. (1950). den. 340 U. S. S. Ct. L. Ed. Error was assigned, appeal conviction, on from a murder to an instruction to jurors prospective on voir dire “that if deceased was killed person, acting having any third in concert or connections with defendants, they nevertheless would be of murder in the first degree”. Supreme unnecessary 4 N. J. found 467. Court it pass proposition judge on the there stated because the trial charging jury foregoing the end of the case сorrected the in by telling jury they struction was erroneous and that it should disregard Id. it. at 468. to be as thought as blameworthy premeditated is killings discordant with rational enlightened and views of criminal 44; culpability liability. and Id. at Comments to A. L. I. Code, Model Penal Tentative Draft No. 9 Section (1959), 201.2, 37p. (“Despite generality [felony murder] rule in the States it frequency United and homicide, deemed to even accidental applicable principled in its defense is hard New argument find”); Proposed Code, Penal Jersey Vol. II Commentary, (stating same view as the Model from the Penal quotation preceding Prevezer, Code L. cit. 57 Col. Rev. at Comment); op. supra, 634; Comment, cit. L. Rev. at 595.6 supra, Rutgers op.
The final report the New Criminal Law Eevision Jersey was, however, Commission totally rejeсt unwilling felony rule, murder instead: concluding many knowing way how that we have no It is true felony resulting were committed murder convictions homicides negligent many knowingly recklessly purposefully, were and how of law does lead rule is our belief that this But or accidental. committing a homicidal risk other to assume some to refuse Code, p. Jersey Commentary, Penal II "Sew Yol. crimes. offer nevertheless Penal Code does New Jersey The proposed mur under the available not hitherto limited defenses the felon caused rule deaths rule, confines the and it der in furtherance of and “in the course co-felons [the his Report Penal (Final New Code Jersey felony].” §20:11—3 formulation theory” “agency This is standard of persons for acts intended to exclude seem would оut arising or co-felons though generally than other felons episode. of the criminal “highly puni as described has also been rule 6The upon consequences imposing of murder objectionable as tive “Proposed Pirsig, wholly Revision unintended.” a death ; (1963) Code”, L. Rev. 427-428 Minn. Criminal Minnesota Anglo-Saxon days of our barbarian a “hold-over also as right very days [having] pre-Norman little to existence ancestors Administration,” Mueller, society”. Law “Criminal
in modern (1959). L. Rev. N. Y. U. *17 In view all of the us of foregoing, appears regressive to extend the of the murder application felony rule its common-law beyond classic limitation acts felon persons his to lethal acts third not accomplices, of the furtherance of the felonious scheme. The language above, it, and, statute does not as indicated is entirely compel the rule. Tort with limitations of compatible the traditional cause have shallow concepts foreseeability proximate relevance for murder the first culpability degree. degree Gradations should of criminal accord com See the moral for the actor’s conduct. culpability theory cause thesis for pelling rejection above, cited murder Professor Morris in the article Rev., 105 U. Pa. L. at 67-68. esp. law as under-
It our is that if the course judgment tois 200 years stood in this State for almost applied legislative so it should be drastically, by express altered enactment. so as modified
The is Division judgment Appellate mur- to strike of defendant the conviction and sentencing der of the сo-felon Lloredo. The practical in result only). J. (concurring
Sullivan, some inno- though is that even holding result of the majority commis- during be killed officer cent police bear no criminal felon would robbery, sion of armed it was as long for that as killing kind responsibility any The legislative or a confederate. felon at the hand it, as is otherwise. intent, I see statute, N. J. S. 2A: The of our thrust liable for 113-1, killing the criminal to hold felony, even though of a the commission ensues during confederate, not commit the actual felon, killing. did I be the death of recognize would would only exception homicide co-felon, justifiable be classified as which could statute. purview and not within *18 situa- act clarify The should Legislature promptly not ex- If it does tion from the majority opinion. resulting killing during statute еncompass tend or felon at the hand of the the commission of felon be confederate, should, least, provide addition chargeable with such for manslaughter killing (in felony).. for the I in for reason only therefore concur the result but stated above. in
Justice Pashman result opinion this joins concurring only. J.,C. I dissent dissenting. respectfully
Hughes, opinion decision here, and would affirm the majority Division, N. J. Appellate pre- for Super. cise reasons stated in opinion. its I believe- majority certainly that what was there to as the "ensues referred clause” can have no other logical intended legislatively than meaning to extend criminal liability, causative sense, which ensues or is proximately caused initiation and furtherance of felony. This on the cоncept stated by the Appellate Division: theory, simply stated, cause when a felon sets motion a chain of which were should events have been contemplation
within his initiated, when felon, the motion was acting him, and responsible those concert with should be held consequences death which direct and almost inevitable Canola, results from the [State initial criminal act. 135 N. J. Super. 224, (1975)]. Resistance whether by victim or unin- police, even tended or accidental deaths which occur in the res confused gestae of violent can felony, hardly be deemed outside the contemplation the initiator of such criminal violence. J.J., concurring the result. Pashman, Sullivan — For Justices Mountain, Sullivan, Pash- modification — . and Schreibbr 6. Judge Coneord m:an, Clieeord — Hughes — For Chief Justice affirmance