specially concurring:
Defendant argues that although he committed the intentional felony of mob action, his conduct with respect to the target of the mob action was merely reckless. Thus, he contends, if his actions caused or contributed to the death of Richard Skelton, he is guilty of involuntary manslaughter (720 ILCS 5/9 — 3(a) (West 1998)), not first degree felony murder.
However, under our felony-murder statute, a defendant is properly convicted of felony murder if, while “performing the acts which cause[d] the death” of a person, he was “attempting or committing a forcible felony other than second degree murder.” 720 ILCS 5/9— 1(a)(3) (West 1998). The felony with which defendant was charged, mob action (720 ILCS 5/25 — 1(a)(1) (West 1998)), is not among those crimes enumerated in the provision defining forcible felonies (720 ILCS 5/2 — 8 (West 1998)). However, the term “forcible felony” includes not only those listed, but also “any other felony which involves the use or threat of physical force or violence against any individual.” (720 ILCS 5/2 — 8 (West 1998)). Mob action, under subsection (a)(1), consists of the “use of force or violence disturbing the public peace by 2 or more persons acting together and without authority of law.” 720 ILCS 5/25 — 1(a)(1) (West 1998). Thus, if the mob action was directed at an individual and caused his death, a charge of felony murder may lie. See also People v. Belk, 203 Ill. 2d 187, 193 (2003) (even a nonviolent felony may serve as the predicate felony for felony murder if, under the facts of the case, it was committed in a manner that involved the use or threat of physical force or violence against an individual).
I, therefore, concur with the court’s conclusion that, under the facts of this case, defendant was properly convicted of felony murder. He committed mob action as defined in section 25 — 1(a)(1) of the Criminal Code, and the physical force and violence of the mob action was directed at a single individual who died as a result of the injuries inflicted by members of the mob.
The present case marks the third time in two years in which this court has granted a petition for leave to appeal to determine whether a particular felony was a proper basis for a conviction of felony murder. See People v. Pelt, 207 Ill. 2d 434 (2003); Belk, 203 Ill. 2d 187. The law on this question was well settled for many years (see People v. Viser, 62 Ill. 2d 568 (1975)), with only the occasional unusual factual circumstance requiring this court’s guidance (see People v. Lowery, 178 Ill. 2d 462 (1997)). With the decision in People v. Morgan, 197 Ill. 2d 404 (2001), however, well-settled law seems to have become unsettled, resulting in the frequent need to revisit the question. Although I agree with the holding in the present case, I write separately to explore how this confusion has arisen and how it might be resolved.
Courts and scholars have identified at least two significant concerns with the unfettered application of the felony-murder rule. See, e.g., R. Gerber, The Felony Murder Rule: Conundrum, Without Principle, 31 Ariz. St. L.J. 763 (1999). First, “absent some limitations on the felonies which can invoke the rule, even nondangerous felonies in the pursuit of which a defendant cannot reasonably be thought to have manifested a man-endangering state of mind, can turn an accidental death into felony murder.” Baker v. State, 236 Ga. 754, 755, 225 S.E.2d 269, 270 (1976). This has been called the “nondangerous felony problem.” Baker, 236 Ga. at 755, 225 S.E.2d at 270. In Illinois, the nondangerous felony problem has been addressed by the legislature, which has defined felony murder to include only those deaths that occur as a result of the commission or the attempt to commit a forcible felony (720 ILCS 5/9 — 1(a)(3) (West 1998)), and has provided a clear definition of that term (720 ILCS 5/2 — 8 (West 1998)).
The second problem arises when “the homicide grows out of an initial aggressive act which is itself a felony.” In such cases, the State can “bootstrap practically all killings with dangerous weapons into murder simply by showing that the assault out of which the death arose was a felony.” Baker, 236 Ga. at 755-56, 225 S.E.2d at 271. This is the “merger problem.” Baker, 236 Ga. at 756, 225 S.E.2d at 271. The concern, of course, is that unless there is some limitation on felony murder, every death caused by conduct that could be described as assault would be first degree murder, and a defendant’s ability to argue that he is guilty of a lesser offense, such as second degree murder or involuntary manslaughter, would effectively be eliminated. Such was the concern in Morgan. Some jurisdictions have adopted rules, variously described as the “merger doctrine,” the “same-act doctrine,” or the “collateral-felony doctrine,” in response to the merger problem. Illinois courts continue to grapple with it.
Merger Doctrine
The merger doctrine is a judicially created limitation on the felony-murder rule that addresses this potential for abuse. Under the merger doctrine, the felony-murder rule cannot be applied if the underlying felony is an offense that is an “integral part” or is “included in fact” in the homicide. See, e.g., People v. Ireland, 70 Cal. 2d 522, 539, 450 P.2d 580, 590, 75 Cal. Rptr. 188,198 (1969). In jurisdictions that have adopted the merger doctrine, the act of personal violence that causes the death of the victim is deemed insufficiently independent of the death to constitute a separate felony. It merges with the homicide. Thus, the defendant may be convicted of some form of homicide, but not of felony murder. See W LaFave & A. Scott, Criminal Law § 7.5, at 638 (2d ed. 1986).
As a result, some jurisdictions hold that a felonious assault can never serve as the basis of a charge of felony murder. For example, in Barnett v. State, 783 So. 2d 927, 930 (Ala. Crim. App. 2000), the court held that because the felony-murder statute applies not only to enumerated crimes but also to any other felony “clearly dangerous to human life,” even a killing that would otherwise constitute manslaughter could be charged as felony murder. To avoid an absurd reading of the statute, the court concluded, a felonious assault that results in the victim’s death merges with the homicide and cannot serve as the underlying felony for a charge of felony murder. Barnett, 783 So. 2d at 930. See also State v. Essman, 98 Ariz. 228, 235, 403 P.2d 540, 545 (1965) (defendant who shot and killed his wife under circumstances that may have been accidental or may have been deliberate may not be convicted of felony murder based on assault with a deadly weapon because the “acts of assault merge into the resultant homicide, and may not be deemed a separate and independent offense which could support a conviction for felony murder”).
Other jurisdictions have rejected the merger doctrine entirely. The Supreme Court of Minnesota has repeatedly rejected the suggestion that it should adopt the merger doctrine. See State v. Loebach, 310 N.W.2d 58 (Minn. 1981); State v. Jackson, 346 N.W.2d 634 (Minn. 1984); State v. Abbott, 356 N.W2d 677 (Minn. 1984). The court concluded that the state legislature was presumably aware of the doctrine and chose not to adopt it when it amended the murder statute in 1981, reclassifying felony murder as second degree rather than third degree murder. Jackson, 346 N.W2d at 636.
The Supreme Court of South Dakota rejected the merger rule in a case involving a defendant who killed his four-month-old daughter by intentionally dropping her on the floor. State v. O’Blasney, 297 N.W2d 797 (S.D. 1980). Citing this court’s opinion in Viser, the South Dakota court observed that the “decision to adopt or reject the merger doctrine has resulted largely from an analysis of that jurisdiction’s statutes.” O’Blasney, 297 N.W.2d at 799. Courts that have adopted the merger doctrine have done so because, absent such a limitation, “all homicides not justified or excused would become first-degree murder under their statutes.” O’Blasney, 297 N.W.2d at 799. Because adoption of the merger doctrine was not necessary to “prevent the nullification of other provisions” of the state’s homicide statutes, the court concluded that adoption of the doctrine “would represent an exercise of judicial oversight that would have no warrant.” O’Blasney, 297 N.W2d at 800.
The Supreme Court of Tennessee has noted that “the merger doctrine has not been widely accepted.” State v. Godsey, 60 S.W.3d 759, 774 (Tenn. 2001). The court agreed with the State’s contention that “the merger doctrine is a rule of statutory construction” that applies “only when the legislature has not enumerated the felonies that will support a conviction for felony murder.” Godsey, 60 S.W.3d at 774. Because aggravated child abuse is one of the enumerated predicate felonies under Tennessee law, Godsey’s act of squeezing the seven-month-old victim’s head between his biceps and forearm did not merge into the homicide, even though it was the same assaultive act that caused the infant’s death. Godsey, 60 S.W.3d at 775.
The Supreme Court of Georgia also relied on the intent of the legislature and the construction of the state’s various homicide statutes when it concluded that it was “not free to adopt the merger doctrine” urged by the appellant in Baker. Baker, 236 Ga. at 757, 225 S.E.2d at 271-72.
Still other jurisdictions adopted the merger doctrine and then abandoned it. In State v. Williams, 24 S.W.3d 101, 117 (Mo. App. 1993), the court concluded that the state legislature abrogated the merger doctrine by excluding only murder and manslaughter as predicate felonies. See also State v. Bouser, 17 S.W.3d 130, 140 (Mo. App. 1999) (holding that if legislature intended merger doctrine to limit felony murder it could easily have excluded felonies other than murder or manslaughter from the reach of the felony-murder statute).
A century-old case from New York provides an example of the merger doctrine. In People v. Huther, 184 N.Y. 237, 77 N.E. 6 (1906), the defendant shot and killed a police officer while attempting to evade arrest. The court held that he could not be convicted of felony murder based on the felony of assaulting a police officer to prevent arrest because the underlying felony was a part of and, therefore, merged into the homicide. Huther, 184 N.Y. at 288, 77 N.E. at 8. The court held that when “the gist of the offense is the assault and when it is by violence inflicting an injury to the person so assaulted, resulting in death, the act becomes a constituent part of the homicide and is merged in the charge therefor.” (Emphasis omitted.) Huther, 184 N.Y. at 244, 77 N.E. at 8-9. It does not follow, however, that “the act which caused the death must be a different one from that done in the commission of the collateral felony.” If the act causing the death is “committed with a collateral and independent felonious design it is sufficient” to serve as the underlying felony for a charge of felony murder. Huther, 184 N.Y. at 244, 77 N.E. at 9.
In 1973, New York’s highest court explained that it had developed the merger doctrine “to remedy a fundamental defect in the old felony-murder statute.” People v. Miller, 32 N.Y.2d 157, 159, 297 N.E.2d 85, 87, 344 N.Y.S.2d 342, 345 (1973). However, the court noted, that defect was remedied in 1965 when the legislature revised the statute to include a list of specified felonies that may form the basis for felony murder. Miller, 32 N.Y.2d at 160, 297 N.E.2d at 87, 344 N.Y.S.2d at 345; see also Saenz v. State, 976 S.W.2d 314, 317 (Tex. Ct. App. 1998) (judicially created merger doctrine is trumped by “express language of the current penal code,” which exempts only manslaughter as an underlying felony under the felony-murder rule).
It is noteworthy that even in some states that have adopted the merger doctrine, the doctrine itself is limited by the language of the felony-murder statute. Under Kansas law, the felony-murder doctrine applies only if the underlying felony, viewed in the abstract, is inherently dangerous to human life and if the elements of the underlying felony are so distinct from the homicide so as not to be an ingredient thereof. State v. Smallwood, 264 Kan. 69, 91, 955 P.2d 1209, 1226 (1998). Thus, the judicially created rule had been a “single assaultive incident of abuse of a child which results in the death of the child merges with the killing and constitutes only one offense.” Smallwood, 264 Kan. at 91, 955 P.2d at 1226. Further, evidence of prior acts of abuse could not be used to escalate the charge into felony murder. Such prior acts could be prosecuted as separate crimes of abuse but could not be used to bootstrap felony child abuse into a felony-murder charge. Smallwood, 264 Kan. at 92, 955 P.2d at 1226. However, the Smallwood court noted, subsequent to the cited decisions dealing with the merger doctrine in the context of felony child abuse, the Kansas legislature amended the first degree murder statute as well as the statute defining inherently dangerous felonies. Smallwood, 264 Kan. at 93, 955 P.2d at 1227. In the revised statute, felony abuse of a child is one of the enumerated felonies. The definition also provides that the enumerated felonies shall be deemed inherently dangerous “whether or not” they are so distinct from the homicide that they are an ingredient thereof. Smallwood, 264 Kan. at 93, 955 P.2d at 1227, citing Kan. Stat. Ann. § 21—3436 (1995). The state supreme court concluded that “the legislature intended that anyone who causes the death of a child while committing the act of abuse of a child to be guilty of the crime of first-degree felony murder.” Smallwood, 264 Kan. at 94, 955 P.2d at 1228. Thus, the merger doctrine may still be a part of Kansas law, but it may not be applied when the felony is one that the legislature has explicitly identified as a proper predicate felony for a charge of felony murder. See also State v. McCann, 907 P.2d 239, 240-41 (Okla. Crim. App. 1995) (legislature’s enumeration of a crime in the felony-murder statute shows its “intent to punish deaths which occur during the commission of an enumerated felony as felony murder,” thus the merger rule is not applicable in such cases).
Same-Act Doctrine
Under the same-act doctrine, application of the felony-murder rule is precluded whenever the act that constitutes the predicate felony is the same act that results in the death of the victim. Although this may appear to be a mere restatement of the merger doctrine, it is in fact an expansion of the merger doctrine to any predicate felony, whether or not it involves assaultive conduct.
For example, under this doctrine, the defendant who commits arson for profit cannot be convicted of felony murder if, unknown to the arsonist, there is a person inside the structure who dies in the flames. Because the act that constitutes the felony — starting the fire — is the same dangerous felonious act that causes the death of the victim, a conviction for felony murder is precluded. In contrast, application of the merger doctrine would not bar application of the felony-murder rule to this arsonist.
Massachusetts appears to have adopted the same-act doctrine, which, perhaps, is more accurately described as the “different act rule.” In Commonwealth v. Kilburn, 438 Mass. 356, 359, 780 N.E.2d 1237, 1240 (2003), that state’s highest court stated that the doctrine of felony murder requires that the conduct constituting the felony be separate from the act of personal violence that causes the death. Kilburn was properly convicted of felony murder based on the predicate felony of armed assault in a dwelling because he committed two separate assaults— first, brandishing a pistol with the intention of arousing fear in the victim and, second, shooting him. Kilburn, 438 Mass. at 359, 780 N.E.2d at 1241. See also Commonwealth v. Smiley, 431 Mass. 477, 489, 727 N.E.2d 1182, 1192 (2000) (defendant was properly convicted of felony murder because the initial assault designed to gain entry into the victim’s dwelling was separate from the act necessary to commit the unlawful killing).
Collateral-Felony Doctrine
New Mexico courts have adopted a third approach to address the concern that “most second degree murders might be charged as first degree murders” under the felony-murder statute, “absent some limitation on the range of appropriate felonies.” State v. Varela, 128 N.M. 454, 460, 993 P.2d 1280, 1286 (1999). To convict a defendant of first degree felony murder, the State must show not only a causal relationship between the felony and the homicide and that the felony is inherently or foreseeably dangerous to human life, but also that the felony was “independent or collateral to the homicide.” Varela, 128 N.M. at 460, 993 P.2d at 1286. As applied, this rule requires that the predicate felony not be a lesser-included offense of second degree murder, which, under New Mexico law, is “knowing” murder. In other words, the court asks whether, in the abstract, “it is possible to commit second degree murder without committing some form of the dangerous felony ***.” Varela, 128 N.M. at 461, 993 P.2d at 1287. “Under this analysis, it would be impossible to be convicted of felony murder if the underlying felony was aggravated assault or aggravated battery because it would be impossible to commit second degree murder without committing some form of both ***.” Varela, 128 N.M. at 461, 993 P.2d at 1287.
Analysis of Illinois Decisions
In the stereotypical felony-murder case, an armed robber enters a store and demands money. The clerk hesitates, or resists, or perhaps merely makes a sudden movement that startles the robber, who fires his weapon, killing the clerk. It is immaterial whether the robber pulls the trigger intending to kill the clerk, or knowing that the clerk’s death is substantially likely to result, or wanting only to impress the clerk with the seriousness of his demand, or entirely by accident. People v. Ramey, 151 Ill. 2d 498 (1992); see also People v. McCarty, 329 Ill. App. 3d 969, 982 (2002) (State is not required to prove that defendant could foresee the death or intended to commit murder; State need only show intent to commit the underlying felony). The armed robber is guilty of felony murder because when he performed the act that caused the death, he was committing the forcible felony of armed robbery. See, e.g., People v. Casillas, 195 Ill. 2d 461 (2000); People v. Richardson, 123 Ill. 2d 322 (1988). It is certain in such a case that the robber entered the store for the purpose of robbing it. Indeed, the predicate felony of armed robbery is complete before he ever pulls the trigger. Thus, there is clear evidence of his intent to commit the predicate felony. In addition, the separate conduct of shooting the store clerk after the felony is complete makes it obvious that the robbery-gone-wrong constitutes felony murder.
The hard case arises when the actus reus of the charged predicate felony is the same act that causes the death. This court has never expressly adopted the same-act doctrine by holding that a charge of felony murder may not stand unless the conduct that caused the death of the victim is separate from and in addition to the actus reus of the underlying felony. On the contrary, this court affirmed the defendant’s conviction of felony murder in Viser, in which there was no conduct other than that necessary to carry out the predicate felony of aggravated battery. Viser, 62 Ill. 2d at 580. Further, Illinois has not adopted the merger doctrine or the collateral-felony doctrine, either by statute or by judicial decision. Indeed, in Viser, this court expressly rejected the “theory of merger” in light of the legislature’s “forthright characterization of aggravated battery as one of the forcible felonies that will trigger a charge of felony murder.” Viser, 62 Ill. 2d at 579-80.
Twenty-four years later, in Morgan, the appellate court held that “the predicate felony underlying a charge of felony murder must involve conduct with a felonious purpose other than the killing itself.” (Emphasis added.) People v. Morgan, 307 Ill. App. 3d 707, 714 (1999). That is, the actus reus of the underlying felony (conduct) must be committed with an “independent felonious purpose.” Morgan, 307 Ill. App. 3d at 714. If, as in Morgan, the forcible felonious conduct is committed with the intent to kill, rather than with the purpose of committing the independent felony, a charge of felony murder may not stand.
The concurring justice in the appellate court decision in Morgan noted that, under this rule, some aggravated batteries and aggravated discharges of firearms would remain the basis for a felony-murder charge, so long as the crimes were not merely incidental to murder. Morgan, 307 Ill. App. 3d at 719 (Steigmann, J., concurring). He then, however, suggested an additional requirement that the appellate court did not adopt. The concurring justice suggested that such crimes could serve as the predicate felony only where they involved “conduct other than that inherent in the killing itself.” Morgan, 307 Ill. App. 3d at 719 (Steigmann, J., concurring). This is the same-act doctrine, which requires that the predicate felony involve criminal conduct in addition to the act that causes the death of the victim. Adoption of such a rule would have had the effect of overruling Viser, which this court continues to reaffirm even in the present case.
This court affirmed the appellate court’s judgment that the felony-murder counts against Morgan were improper. Morgan, 197 Ill.Ill. 2d 404. However, in doing so, it altered the focus of the analysis. First, this court stated, incorrectly, that the appellate court concluded that “felony murder was limited to cases in which the predicate felony consisted of conduct other than that inherent in the killing itself.” (Emphasis added.) Morgan, 197 Ill. 2d at 444. This was not the holding of the appellate court. Instead, it is the formulation suggested by the concurring justice and is inconsistent with Viser. This court noted the inconsistency and, later in the opinion, referred with approval to the appellate court’s requirement of an independent felonious purpose. Morgan, 197 Ill. 2d at 446.
This court also noted that the forcible felonies committed by Morgan “were inherent in, and arose out of, the fatal shootings” of his grandparents. Morgan, 197 Ill. 2d at 447. This is true as a statement of fact. Jon Morgan admitted that he pointed a gun at each of his grandparents and pulled the trigger with the intent to kill. He offered evidence of provocation and imperfect self-defense in an effort to mitigate his crimes to second degree murder. Morgan, 197 Ill. 2d at 411-12. However, while the phrase “inherent in and arising out of’ is an accurate description of the facts of the case, it is not a useful rule for other cases. When one commits the forcible felony of aggravated discharge of a firearm and unintentionally causes a death, it cannot be said that the firing of the gun was inherent in and arose from the killing. The opposite is true — the killing arises or flows from the defendant’s intent to commit the independent felony and his acting on that intent. Nevertheless, this court adopted this language as the statement of the rule for determining when a forcible felony may serve as the predicate felony to a charge of felony murder. Morgan, 197 Ill. 2d at 447.
Our opinion in the present case states that “in this type of case” (213 Ill. 2d at 472), the State must prove intentional or knowing murder to punish the defendant like a murderer. The Morgan “type of case” is one where the defendant admits intent to kill, but argues that his crime is second degree murder rather than first degree murder. Having admitted the intent to kill, he must be given the opportunity to present his case for provocation or imperfect self-defense to the fact finder. The State may not short-circuit his ability to mitigate his crime to second degree murder by characterizing the act of murder as felony murder, at least not without offering proof that the defendant acted for the specific purpose of committing the underlying felony.
Pelt was not a Morgan “type of case.” 213 Ill. 2d at 472. In Pelt, this court noted its prior approval of the appellate court’s holding in Morgan that to convict a defendant of felony murder the State is required to prove that in committing the predicate felony the defendant acted with an independent felonious purpose. Pelt, 207 Ill. 2d at 441. However, the majority then went on to consider whether Pelt’s aggravated battery of an infant “was an act that was inherent in, and arose out of, the kilhng” of the child. Pelt, 207 Ill. 2d at 442. The majority not only failed to recognize that it was Morgan’s intent to kill that rendered his conduct “inherent” in the act of killing, it also breathed new life into the same-act doctrine by stating that the “act of throwing the infant” that was the basis for the aggravated battery conviction was “also the same act underlying the kilhng.” Pelt, 207 Ill. 2d at 442. Further, the Pelt majority reformulated the question as whether the predicate felony “involved conduct with a felonious purpose other than the conduct which killed the infant.” (Emphases added.) Pelt, 207 Ill. 2d at 442.
The only reasonable reading of the language used in Pelt is that the predicate felony must not only have a felonious purpose apart from kilhng the victim, such as rape, robbery, or kidnaping, but also must involve at least two separate acts — first, the actus reus necessary to prove the elements of the felony itself and, second, the conduct that kills or causes the death of the victim. As I noted in my dissent in Pelt, this rule, “which focuses on the defendant’s conduct rather than his mental state, if literally applied, would preclude a charge of felony murder unless the defendant engaged in forcible felonious conduct in addition to the act that caused the killing.” Pelt, 207 Ill. 2d at 446 (Garman, J., concurring in part and dissenting in part). This rule would apparently preclude a conviction for felony murder based on kidnaping where the kidnaper commits only one act, luring a child into his car with a promise of candy, and then the child dies from an asthma attack for lack of access to her inhaler.
Less than a year after this court issued its decision in Pelt, we are faced with a case in which the defendant committed only one criminal act yet we are affirming his conviction for felony murder. Although I dissented, in part, in Pelt, and I am troubled by this court’s reasoning in Morgan, I am bound by the doctrine of stare decisis to accept these cases as settled law. Reasoning from Morgan and Pelt, this court now suggests that the way to determine whether a defendant’s conduct was inherent in and arose out of the killing is to ask whether the “same evidence” was used by the State to prove both the predicate felony and the murder. 213 Ill. 2d at 474. In the present case, “to convict defendant of mob action, it was not necessary to prove that defendant struck Richard, much less performed the act that caused the killing.” 213 Ill. 2d at 474. Thus the predicate felony of mob action “involved conduct with a felonious purpose other than the conduct which killed Richard.” 213 Ill. 2d at 474. Apparently, Davis engaged in conduct with a felonious purpose and the members of the mob, cumulatively, engaged in the additional conduct that killed Richard Skelton. Further, my colleagues conclude that this result is consistent with Viser, in which the defendant was one of several individuals who punched and kicked the victim and it was not clear which attacker “caused the fatal blow.” 213 Ill. 2d at 475.
What our opinion says, in effect, is that if it is possible to prove the elements of the underlying forcible felony and also, using different evidence, to prove that “in performing the acts which cause the death” the defendant was “attempting or committing a forcible felony other than second degree murder” (720 ILCS 5/9— 1(a)(3) (West 1998)), conviction of felony murder is proper. This is the same-act doctrine, under which the State must prove that the defendant committed the actus reus of the underlying felony and, in addition, caused the death of the victim by engaging in some other conduct as he attempted or committed the forcible felony. I suggest that if this court is going to adopt this doctrine, it should do so unequivocally and thereby give clear guidance to prosecutors and trial courts.
In my opinion, however, the same-act doctrine completely ignores the intent of the legislature as expressed in the statutory definition of forcible felony, which includes “predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping” and other crimes. 720 ILCS 5/2 — 8 (West 1998). Nothing in this statutory definition or in the felony-murder statute itself suggests a legislative intent that the provision apply only in cases such as the stereotypical store robbery case described above where the defendant commits two separate acts, one that constitutes the felony and one that causes the death of the victim. Indeed, the inclusion of arson on this list indicates a legislative intent that the single felonious act of lighting a fire with the intent to defraud an insurer (720 ILCS 5/20 — 1 (West 1998)) can serve as the predicate felony for a charge of felony murder if someone present in the structure, entirely unknown to the arsonist, is killed as a result.
In sum, although I agree with the result in this case, and although I accept Morgan and its progeny as the law of this state, I cannot agree that either the merger doctrine or the same-act doctrine are proper limits on the application of our felony-murder statute. The General Assembly has clearly expressed its intention that an act constituting a forcible felony — other than second degree murder — is a sufficient basis for the imposition of liability for felony murder, thus precluding our adoption of the same-act doctrine.
The merger doctrine is similarly precluded by the purpose of the felony-murder doctrine, which is to hold a felon responsible for the direct and foreseeable consequences of his actions. People v. Lowery, 178 Ill. 2d 462, 470 (1997). The logic behind the felony-murder statute is that one who chooses to commit a forcible felony will endeavor to limit his use of violence to avoid being automatically subject to a murder prosecution if someone dies as a result of the commission of the felony. People v. Shaw, 186 Ill. 2d 301, 322 (1998). See also 40 Am. Jur. 2d Homicide § 64 (1999) (“The common-law rule was that if a person killed another in doing or attempting to do an act amounting to a felony, the killing was murder. Practically all jurisdictions have enacted statutes providing that a homicide perpetrated during the commission, or attempted commission, of any felony, or more frequently, of certain specified felonies *** shall be deemed murder or murder in the first degree. The effect of such statutes is to impute malice or deliberation to a felon so as to make the incidental homicide murder in the first degree. Hence, under most, but not all, such statutes, where the killing occurs in the perpetration of any of the specified crimes, whether or not the defendant had the intent to kill is immaterial and irrelevant. Thus, any time the commission of a felony causes death, even though unintentional or accidental, the legal malice from the felony is sufficient to transform the killing into murder. The defendant need only intend to commit the underlying felony, no other mens rea is required” (emphases added)).
Thus, in each case where felony murder is charged, the inquiry should be whether the State has charged a forcible felony as the predicate felony, whether the defendant set out to commit the forcible felony, and whether the death of the victim occurred during the attempt or the commission of and as a result of the felony.
In Morgan, the defendant admitted that he acted with the intent to kill. He could not be convicted of felony murder because he committed the fatal assaults for the sole purpose of carrying out that intent.
In Pelt, there was no evidence of the defendant’s mens rea aside from the forcible felonious conduct itself. No one, other than Pelt, knows whether he threw the infant against the dresser with the intent to kill, with the knowledge that he would likely cause death or grave bodily harm, or “merely” with the intent to batter the child. As I indicated in my dissent in that case, in my opinion, the answer to this question should be within the province of the jury. If the State charges intentional, knowing, and felony murder in such a case, the jury should be permitted to consider all three counts of murder and to infer the defendant’s mental state from his actions. Pelt, 207 Ill. 2d at 447 (Garman, J., concurring in part and dissenting in part). See also Godsey, 60 S.W.3d 759 (affirming felony-murder conviction based on aggravated child abuse of seven-month-old victim); O’Blasney, 297 N.W.2d 797 (affirming felony-murder conviction based on felony child abuse of four-month-old victim).
In the present case, defendant intended to participate in the forcible felony of mob action, which resulted in the death of Richard Skelton. He is guilty of felony murder.
I am fearful, however, that our latest pronouncement on the question of proper predicate felonies for felony murder obscures, rather than clarifies, this important issue. I hope that when the next case arises, the members of this court will either unequivocally adopt the merger doctrine or the same-act doctrine, thus overruling Viser, or else reject them, overrule Pelt, and clearly state that a conviction for felony murder may stand if and only if the State has proven that the defendant acted for the purpose of committing an independent felony apart from the homicide.