For modification -- Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- Chief Justice Hughes. The opinion of the court was delivered by Conford, P.J.A.D., Temporarily Assigned. Sullivan, J. (concurring in result only). Justice Pashman joins this opinion concurring in result only. Hughes, C.J., dissenting. Sullivan and Pashman, J.J., concurring in the result.
[73 NJ Page 207] Defendant, along with three confederates, was in the process of robbing a store when a victim of the robbery, attempting to resist the perpetration of the crime, fatally shot one of the cofelons. The sole issue for our resolution is whether, under N.J.S.A. 2A:113-1, defendant may be held liable for felony murder. A divided part of the Appellate Division determined the question in the affirmative. 135 N.J. Super. 224
(1975). Because of the dissent, the appeal is here as of right. R. 2:2-1(a).
The facts of this case are adequately stated in the opinion of the Appellate Division. 135 N.J. Super. at 227-229. For purposes of this determination they may be summarized as follows. The owner of a jewelry store and his employee, in an attempt to resist an armed robbery, engaged in a physical skirmish with one of the four robbers. A second conspirator, called upon for assistance, began shooting, and the store owner returned the gunfire. Both the owner and the felon, one Lloredo, were fatally shot in the exchange, the latter by the firearm of the owner.
Defendant and two others were indicted on two counts of murder, one count of robbery and one count of having been armed during the robbery. The murder counts were based on the deaths, respectively, of the robbery victim and the co-felon. After trial on the murder counts defendant was found guilty on both and was sentenced to concurrent terms of life imprisonment. The Appellate Division unanimously affirmed the conviction for the murder of the robbery victim, and this court denied a petition for certification addressed thereto. However, when the Appellate Division majority upheld the trial court's denial of a motion to dismiss the count addressed to the homicide of the co-felon, Judge Handler dissented.
Conventional formulations of the felony murder rule would not seem to encompass liability in this case. As stated by Blackstone about the time of the American Revolution, the rule was: "And if one intends to do another felony, and undesignedly kills a man, this is also murder." 4 Blackstone, Commentaries * 200-201; and see The State v. Cooper, 13 N.J.L. 361, 370 (Sup. Ct. 1833); State v. Madden, 61 N.J. 377, 384 (1972). In such case the felonious intent supplies the malice requisite for murder. Ibid. A recent study of the early formulations of the felony murder rule by such authorities as Lord Coke, Foster and Blackstone and of later ones by Judge Stephen and Justice Holmes concluded that they
were concerned solely with situations where the felon or a confederate did the actual killing. Comment, 24 Rutgers L. Rev. 591, 600-601 (1970); and see Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472, 480 (Sup. Ct. 1958). Contrary to the division of view in the modern American cases on the point (see infra), it has been observed that the English courts never applied the felony murder rule to hold a felon guilty of the death of his co-felon at the hands of the intended victim. Prevezer, "The English Homicide Act: A New Attempt To Revise The Law Of Murder," 57 Col. L. Rev. 624, 634 (1957); and see Comment, ubi cit. supra, 24 Rutgers L. Rev. at 600-601.
The precise issue in the present case is whether a broader concept than the foregoing -- specifically, liability of a felon for the death of a co-felon effected by one resisting the felony -- is required by the language of our statute applicable to the general area of felony murder. N.J.S.A. 2A:113-1. This reads:
If any person, in committing or attempting to commit arson, burglary, kidnapping, rape, robbery, sodomy or any unlawful act against the peace of this State, of which the probable consequences may be bloodshed, kills another, or if the death of anyone ensues from the committing or attempting to commit any such crime or act ; or if any person kills a judge, magistrate, sheriff, coroner, constable or other officer of justice, either civil or criminal, of this state, or a marshal or other officer of justice, either civil or criminal, of the United States, in the execution of his office or duty, or kills any of his assistants, whether specially called to his aid or not, endeavoring to preserve the peace or apprehend a criminal, knowing the authority of such assistant, or kills a private person endeavoring to suppress an affray, or to apprehend a criminal, knowing the intention with which such private person interposes, then such person so killing is guilty of murder. (emphasis added).
This statute is traceable substantially intact to the Law of March 18, 1796, § 66, N.J. Laws [1701-1820] 262. The only substantive changes have been the inclusion of kidnapping among the felonies specified and the excision of the original prescription of punishment by death. The Appellate
Division majority was of the view that the above-emphasized portion of the statute, referred to by it as the "ensues clause," compelled the result it arrived at. It said (135 N.J. Super. at 235):
Judge (now Justice) Handler, in dissenting, cited the decisions representing the majority view in those other jurisdictions which had considered the general question, and said they hold that "a felon cannot be found guilty for the death of an accomplice occurring during the commission of the felony." 135 N.J. Super. at 236. As to the ensues clause of the statute, Judge Handler stated (id. at 237-238):
In my view the "ensues clause" is not the catalyst which transmutes criminal culpability in the context of a felony-murder from agency to proximate cause. No cogent argument has been presented that, by the inclusion of the language of the "ensues clause," the Legislature intended to affix criminal responsibility upon a felon for murder in the highest degree for the justifiable, accidental or unintended death of a co-felon on the theory of proximate cause. Rather, the purpose of the "ensues clause" would appear to be a legislative attempt to insure a broadened scope of criminal responsibility with
respect to a defendant who, as a primary actor or in concert with or through the criminal agency of another, actually or constructively, but in furtherance of the felony, causes the death of another person.
While the statute, even without the "ensues clause," might well be so interpreted and applied, it was within the legislative province to give unmistakable and emphatic expression of this intent. It does not follow, therefore, as thought by the majority and expressed in State v. Burton, 130 N.J. Super. 174 (Law Div. 1974), that the "ensues clause" is mere surplusage and acquires a sensible meaning, together with the final phrase of the statute, only upon a thesis of proximate cause. On the contrary, in my view the "ensues clause" underscores a legislative intent, in defining felony murder, to expand the class of victims whose death might occur in the course of a felony and to cover killings which might otherwise be considered too distantly connected with the felony, provided they fall within its res gestae. So understood, the entire statute makes reasonable sense when limited only to a defendant who actually participates in the killing, or does so through the agency of a partner in the crime, whether as a principal or an aider and abettor, whether directly or indirectly, by acts or conduct in furtherance of the commission of the felony.
For reasons to be more fully explicated, we are in accord with the conclusion arrived at in the dissent.
Before attempting, through analysis of the statutory language itself, a resolution of the contrasting views of the statute entertained below, it will be helpful to survey the progress of the pertinent law in the other American jurisdictions. Preliminarily, however, it seems significant of the contemporaneous and subsequent general assessment of the meaning of the ensues clause in our statute that prior to the past decade, and over the long period of its presence in our statute books, there is no apparent evidence that any felon was ever charged with murder for a death at the hands of persons not associated with the felonious undertaking. Cf. Pringle v. N.J. Dept. of Civil Service, 45 N.J. 329, 332-333 (1965); Kingsley v. Hawthorne Fabrics, Inc., 41 N.J. 521, 528 (1964).
It is clearly the majority view throughout the country that, at least in theory, the doctrine of felony murder does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of
one other than the defendant or those associated with him in the unlawful enterprise. Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 261 A.2d 550 (Sup. Ct. 1970); People v. Washington, 62 Cal. 2d 777, 44 Cal. Rptr. 442, 402 P. 2d 130 (Sup. Ct. 1965); Commonwealth v. Balliro, 349 Mass. 505, 209 N.E. 2d 308 (Sup. Jud. Ct. 1965); People v. Wood, 8 N.Y. 2d 48, 201 N.Y.S. 2d 328, 167 N.E. 2d 736 (Ct. App. 1960); People v. Warren, 44 Mich. App. 567, 205 N.W. 2d 599 (Ct. App. 1973); Alvarez v. District Ct. In and For City & Cty. of Denver, 186 Colo. 37, 525 P. 2d 1131 (Sup. Ct. 1974); State v. Garner, 238 La. 563, 115 So. 2d 855 (Sup. Ct. 1959); State v. Majors, 237 S.W. 486 (Mo. Sup. Ct. 1922); Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085 (Ct. App. 1905); Sheriff, Clark County v. Hicks, 89 Nev. 78, 506 P. 2d 766 (Sup. Ct. 1973); State v. Oxendine, 187 N.C. 658, 122 S.E. 568 (Sup. Ct. 1924). See Annot. 56 A.L.R. 3d 239 (1974). This rule is sometimes rationalized on the "agency" theory of felony murder.*fn2
A contrary view, which would attach liability under the felony murder rule for any death proximately resulting from the unlawful activity -- even the death of a co-felon -- notwithstanding the killing was by one resisting the crime, does not seem to have the present allegiance of any court. See Johnson v. State, 386 P. 2d 336 (Okl. Cr. App. 1963); Miers v. State, 157 Tex. Cr. R. 572, 251 S.W. 2d 404 (Cr. App. 1952); and Hornbeck v. State, 77 So. 2d 876 (Fla. Sup. Ct. 1955), in all of which either an officer or other innocent person was killed. But cf. Taylor v. Superior Court of Alameda County, 3 Cal. 3d 578, 91 Cal. Rptr. 275, 477 P. 2d
131 (1970), another phase of which is reported in 12 Cal. 3d 686, 117 Cal. Rptr. 70, 527 P. 2d 622 (Sup. Ct. 1974) (where a co-felon was killed).
At one time the proximate cause theory was espoused by the Pennsylvania Supreme Court, Commonwealth v. Moyer, 357 Pa. 181, 53 A.2d 736 (Sup. Ct. 1947) (murder conviction for death of gas station attendant in exchange of gunfire during robbery, without proof that a felon fired fatal shot); Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595 (Sup. Ct. 1949); cert. den. 339 U.S. 924, 70 S. Ct. 614, 94 L. Ed. 1346, reh. den. 339 U.S. 950, 70 S. Ct. 798, 94 L. Ed. 1364, cert. den. 340 U.S. 867, 71 S. Ct. 83, 95 L. Ed. 633 (1950).*fn3 The reasoning of the Almeida decision, involving the killing of a policeman shot by other police attempting to apprehend robbers, was distinctly circumvented when the question later arose whether it should be applied to an effort to inculpate a defendant for the killing of his co-felon at the hands of the victim of the ...