dissenting:
The majority initially indicates that Illinois could “perhaps” constitutionally assert jurisdiction over an offense in wMch the victim is abducted in tMs State and subsequently murdered in another State. It declines to do so, however, and, for authority, cites two cases in which the courts would not assume jurisdiction over a series of crimes where oMy the first offense occurred in the forum State. (See Conley v. United States (4th Cir. 1928), 23 F.2d 226; People v. Bovinett (1979), 73 Ill. App. 3d 833.) I do not find these cases analogous to the instant circumstances.
Both Conley and Bovinett involve the commission of a series of separate crimes. For example, the defendant in Conley was charged with stealing Liberty Bonds and with altering the stolen bonds, which are two distinct offenses. The court held that the State in wMch the bonds were stolen had no jurisdiction over the “alteration” charge because that offense was committed in another State. Similarly, in Bovinett, the defendant was charged with eavesdropping and with using the information thereby obtained. These were separate offenses, and since defendant used the information in another State, it was held that Illinois lacked jurisdiction over that count. In effect, the courts concluded that just because one offense occurs in the forum State does not mean that court has jurisdiction over other related offenses.
Here, we are not dealing with separate, related offenses. We are dealing with separate elements of the same offense. Felony murder is codified as a single offense, the essential composites of which are (1) a murder that (2) occurs during the commission of a forcible felony other than voluntary manslaughter. (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3).) The majority recognizes the felony component of the offense, but concludes, without citing any authority, that it is “only a precondition, not an element of independent significance.” (91 Ill. 2d at 485.) I disagree. The felony is more than a condition of the offense; it is an essential element thereof, without which a defendant could not be convicted of the crime. Simply stated, without a felony, there can be no felony murder. See People v. Kolep (1963), 29 Ill. 2d 116, 120-21; cf. People v. Viser (1975), 62 Ill. 2d 568, 581 (without a death, there can be no felony murder).
Where an element of the offense occurs within the forum State, that State may constitutionally assume jurisdiction over the offense. (Lane v. State (Fla. 1980), 388 So. 2d 1022 (where a crime is committed partly in one State and partly in another, defendant may be tried in either State); State v. Harrington (1969), 128 Vt. 242, 260 A.2d 692 (same principle); cf. Leonard v. United States (5th Cir. 1974), 500 F.2d 673 (where an element of the crime occurs on Federal land, the Federal court has jurisdiction even though the “gist” of the offense occurs elsewhere); Simpson v. United States (9th Cir. 1916), 229 F. 940, cert. denied (1916), 241 U.S. 668, 60 L. Ed. 1229, 36 S. Ct. 552 (defendant, charged with the offense of issuing a false certificate of deposit, is amenable to prosecution in the State in which the certificate is signed in blank, although it is unlawfully filled in in another State).) “A sovereign has jurisdiction to try an offense where only a part of that offense has been committed within its boundaries.” (Leonard v. United States (5th Cir. 1974), 500 F.2d 673, 674.) Here, the aggravated kidnaping, a felony, commenced in Illinois and continued into Wisconsin. This is sufficient to confer jurisdiction over the felony-murder offense. See Ill. Rev. Stat. 1979, ch. 38, pars. 1—5(a)(1), (b); People v. Perry (1961), 23 Ill. 2d 147, cert. denied (1962), 369 U.S. 868, 8 L. Ed. 2d 86, 82 S. Ct. 1035 (Illinois has jurisdiction over conspiracy charge where overt act in furtherance thereof occurred in this State).
Further support for the view that the felony is an essential element of felony murder may be found in court decisions considering the issue of venue. Although jurisdiction and venue are clearly not based upon the same legal concepts, and I do not mean to imply that the same rules are applicable to each, nevertheless an analogy may appropriately be drawn. For example, in State v. Zimmer (1967), 198 Kan. 479, 426 P.2d 267, cert. denied (1967), 389 U.S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298, the defendant was charged with felony murder predicated on kidnaping. The evidence indicated that the victim was abducted in one county and apparently murdered in another county. At issue was whether venue over the murder offense could properly be established in the county in which the kidnaping (a felony) initiated. In concluding that it could, the court stated:
“Appellant was charged in the information with felony murder, that is, killing while engaged in the perpetration of a felony, namely, kidnaping. The jury was instructed upon this type of murder and appellant stands convicted thereof. Hence the kidnaping was an essential element of the murder offense. Inasmuch as the initial abduction occurred in Shawnee county and the kidnaping was triable there, venue on the murder charge became permissible there ***.” (Emphasis added.) (198 Kan. 479, 498-99, 426 P.2d 269, 283.)
See also State v. Duvaul (1978), 223 Kan. 718, 576 P.2d 653; cf. State v. Smith (1979), 92 N.M. 533, 591 P.2d 664; People v. Powell (1967), 67 Cal. 2d 32, 429 P.2d 137, 59 Cal. Rptr. 817.
In Zimmer, the court’s conclusion that venue was proper where the victim was abducted rests on the premise that the felony was an essential element of the felony-murder offense. This same reasoning is applicable to the instant case. The felony element should be no less essential where the issue is which State has jurisdiction, as opposed to which county has venue. Consequently, the commission of a felony in the forum State should be sufficient to confer jurisdiction over the felony-murder offense.
Further, I do not find the analogy of the common law “midnight” burglary on point. Obviously, Illinois cannot assume jurisdiction over a Wisconsin burglary because it happens to be night time in Illinois at the time of the offense. The defendant would not have committed any element of the crime in Illinois. The relevant portion of section 1 — 5 authorizes Illinois to assume jurisdiction over an offense only where “the conduct which is an element of the offense *** occurs within the State.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1-5(b).) Committing a felony is defendant’s conduct; nightfall is not. It seems that resort to an analogy such as this manifests the weakness in today’s opinion.
After determining that the felony is merely a “precondition” to the offense of felony murder, the majority appears to retreat from this position and concede that the felony is an element of the crime. However, it concludes that “[n]ot every element of an offense supports jurisdiction. Some elements, while essential in the sense of necessary, are not the essence of the crime.” (91 Ill. 2d at 487.) Section 1 — 5 does not intimate that only certain elements are sufficiently essential to sustain jurisdiction. As noted above, it requires only that the conduct which is an element of the offense occur in Illinois. (Ill. Rev. Stat. 1979, ch. 38, par. 1-5(b).) The majority has now undertaken to rewrite this requirement to provide for jurisdiction only if conduct which is the “essence” of the offense occurs in this State. I am convinced that if this is what the legislature meant to provide, it would have, and could have easily, done so.
The majority again seeks support for its position through an analogy which is distinguishable from the instant case. In the hypothetical involving an Illinois felon buying a gun, what makes the gun purchase a crime is the person’s status as a felon due to prior criminal conduct. What makes felony murder a crime is felonious action, not the perpetrator’s status. If a defendant once convicted of a felony thereafter murders someone, he cannot be guilty of felony murder just because he happens to be a felon at the time of the offense.
Nor do I find persuasive the resort to the committee comments for purpose of divining the legislative intent. One quoted comment states that the applicable “conduct” is that “which puts in motion the instrument or agency of death.” (Ill. Ann. Stat., ch. 38, par. 1—5, Committee Comments, at 20 (Smith-Hurd 1972).) The majority goes on to note that kidnaping “cannot realistically be regarded as ‘the conduct’ of the later strangling.” (91 Ill. 2d at 488.) I agree, but this observation is not responsive to the issue. The committee comment referred in particular to the offense of homicide. The issue in this case is not jurisdiction over a homicide; it is jurisdiction over felony murder. Here, kidnaping is the felonious conduct of the felony-murder offense.
In addition, I feel that application of the Werblow attempt analysis to felony murder is inappropriate. An attempt requires an intent to commit the particular offense. (Ill. Rev. Stat. 1979, ch. 38, par. 8—1.) The whole point of felony murder is that the death may be unintentional, and “[t]here is no such criminal offense as an attempt to achieve an unintended result.” (People v. Viser (1975), 62 Ill. 2d 568, 581.) Today’s opinion indicates that it may be sufficient if there is “at least some danger” that the offense will be completed. (91 Ill. 2d at 490.) It seems to me that felony murder is a codified offense precisely because there is the danger that death will result during the commission of a forcible felony. This is all too true of kidnapings, which, with unfortunate frequency, culminate in the victims’ deaths.
Lane v. State (Fla. 1980), 388 So. 2d 1022, is cited for the proposition that the State in which the felony began does not necessarily acquire jurisdiction over a felony-murder charge. I believe that this is a complete misinterpretation of the Lane decision, and it is therefore necessary to set forth in detail the facts and legal principles involved in the case. The defendant in Lane was charged in the alternative with first degree (premeditated) murder and felony murder, predicated on robbery or attempted robbery. The evidence adduced at trial indicated that defendant robbed and beat the victim in Florida. He then placed him in the trunk of his car and drove to a bridge in Alabama, where he again beat him and left the body. A toxicologist who performed the autopsy testified that the victim died in Alabama. Thus, the issue was whether Florida could assume jurisdiction over an offense commenced in that State but concluded in another State.
The court determined that Florida could properly assert jurisdiction over the offense if an essential element of the crime occurred within the State. It went on to explain that “[i]n the instant case that would mean establishing either that the premeditation to murder the victim was formulated in the State of Florida or that the underlying felony, in this case the robbery, occurred in the State of Florida.” (Emphasis added.) (388 So. 2d 1022, 1028.) Again, in referring to the offense with which defendant was charged, the court stated:
“One of the essential elements of this offense is the premeditated design of the [defendant] to effect the death of the victim or, in the alternative, the perpetration of or an attempt to perpetrate a robbery upon the victim. It is our view that if either of these alternative essential elements of the offense occurred within the State of Florida, then Florida has jurisdiction to try the [defendant].” 388 So. 2d 1022, 1028.
The principle which the court has thus articulated is clear: If the underlying felony occurred in the forum State, that State has jurisdiction over the felony-murder charge. This follows from the court’s determination, with which I agree, that the felony is an essential element of the offense.
In the instant case the majority has completely ignored the above quotations and focused solely on the holding that, on retrial, defendant should not be convicted unless the fatal blow or the death or “an essential element of the offense which was part of one continuous plan, design and intent leading to the eventual death of the victim occurred in Florida.” (388 So. 2d 1022, 1029.) However, as the Lane court subsequently indicated, these jurisdictional guidelines were to be applied at defendant’s retrial for first-degree murder. (388 So. 2d 1022, 1029.) Indeed, the contention upon which defendant appealed to the Florida Supreme Court was framed as follows: “The [defendant] contends that the State of Florida has no jurisdiction to charge or try [him] with first-degree murder because neither the death occurred in the State of Florida nor was it established that the fatal blows were struck in the State of Florida.” (Emphasis added.) (388 So. 2d 1022, 1026.) It is therefore apparent that defendant did not challenge the State’s authority to prosecute him for felony murder and the above-quoted jury instruction did not apply to that offense. Hence, the only principle enunciated with regard to felony murder indicates that the State in which the felony occurs may assume jurisdiction over the offense of murder.
Pollard v. State (1979), 270 Ind. 599, 388 N.E.2d 496, and Conrad v. State (1974), 262 Ind. 446, 317 N.E.2d 789, cases involving a kidnap and murder, are also cited for the proposition that the offenses must form one continuous plan in order for a State to obtain jurisdiction over an out-of-State murder. However, these cases apparently did not involve felony murder. The issue was jurisdiction over a murder charge, and thus the offenses had to somehow form a continuous plan in order to sustain jurisdiction. Otherwise, no element of the murder offense could have occurred in the forum State.
Finally, the majority concludes that “there is no evidence to support an affirmative inference that anything jurisdictionally significant happened in this State.” (91 Ill. 2d at 492.) This statement is simply not true. The evidence indicates that defendant abducted the victim in Illinois. Whatever other crimes were perpetrated in Wisconsin, the aggravated kidnaping commenced here. I cannot believe that the commission of such a serious felony should be considered “jurisdictionally” insignificant.
In conclusion, today’s opinion treats this case as if it involved two separate offenses, so-called “ordinary” murder (a term which appears to be without legal significance) and aggravated kidnaping. Because only one offense, felony murder, is at issue, and an essential element of that offense occurred in Illinois, I believe we may properly assume jurisdiction over the complete offense. Accordingly, I would affirm the trial court’s decision on the jurisdictional issue, and reach the merits of defendant’s other challenges to his murder conviction.
RYAN, C.J., and UNDERWOOD, J., join in this dissent.