also dissenting:
Although I joined this court’s opinion in People v. Lowery, 178 Ill. 2d 462 (1997), I have changed my view of the matter. For the reasons given below, I believe the court should reexamine and reject the proximate cause theory of liability in felony-murder cases.
The felony-murder doctrine originated in England to impose liability for murder upon a criminal defendant whose conduct in committing or attempting a felony brought about an unintended death. State v. Branson, 487 N.W.2d 880, 881 (Minn. 1992). At the time the doctrine was conceived, few offenses were classified as felonies, and all felonies were punishable by death. Branson, 487 N.W.2d at 881-82. Since the advent of the felony-murder doctrine, however, many less serious offenses have been added to the felony category. In response, many American jurisdictions have narrowed the doctrine’s application, while England has abandoned the doctrine altogether. Branson, 487 N.W.2d at 882 & n.3.
In Illinois, the only type of first degree murder which does not require proof of a specific mens rea, or intent, on the part of the defendant is felony murder. See 720 ILCS 5/9 — 1(a) (West 1996). The felony-murder doctrine thus stands as a substitute for intent in cases where the defendant’s commission of a felony causes another person’s death. This principle is sound when the death actually results from an action taken by the defendant. When the death is caused by the conduct of a third person, however, the rationale for the felony-murder
doctrine fails, because the doctrine operates as a rule of intent, not of causation. As one court held on facts similar to those of the instant case, “the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing.” (Emphasis omitted.) Commonwealth v. Redline, 391 Pa. 486, 495, 137 A.2d 472, 476 (1958). In other words, although the State, to obtain a conviction for felony murder, need not prove intent to kill or knowledge that bodily harm will result, it still must prove that the defendant performed the acts which caused the death.
This analysis applies with particular force to the Illinois felony-murder statute, which provides as follows:
“A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death-.
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(3) he is attempting or committing a forcible felony other than second degree murder.” (Emphasis added.) 720 ILCS 5/9 — 1(a)(3) (West 1996).
This language clearly requires the State to prove that the defendant personally killed the decedent by “performing the acts which cause [d] the death.”
The majority cites a passage from the committee comments on section 9 — 1 to support its reading of the statute. 182 Ill. 2d at 254. This passage states that the death upon which a felony-murder conviction is based may have been caused “even by a third person trying to prevent the commission of the felony.” 720 ILCS Ann. 5/9 — 1, Committee Comments — 1961, at 12-13 (SmithHurd 1993). The only authority given by the Committee for this statement is this court’s opinion in People v. Payne, 359 Ill. 246 (1935). In Payne, this court held that the defendant could be found guilty of murder even if the shot that killed the decedent had been fired by another victim of the underlying felony. Payne, 359 Ill. at 255. This court’s holding in Payne, however, is flawed for the same reason as is the majoritys analysis in the instant case: namely, the State failed to prove that the defendant performed the acts which caused the death. Other than this brief reference by a nonlegislative committee to an opinion of this court, there is no evidence that the General Assembly intended to sanction a conviction for felony murder where the death was caused by the actions of a person other than the defendant. Moreover, comments on a statute cannot alter the plain language of the statute. Giving the statute a fair reading, I cannot see how the comments could have been made in the first place, and I certainly do not see how those comments can now be given any validity or weight.
As the majority notes, most United States jurisdictions have rejected the proximate cause standard in favor of an agency theory of liability. Under the agency 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.” State v. Canola, 73 N.J. 206, 211-12, 374 A.2d 20, 23 (1977). Illinois also should adopt the agency theory, not because the majority of other states have done so, but rather because that theory represents a reasonable and just interpretation of the law. For this reason, I respectfully dissent.