Commonwealth v. Bowden

Concurring Opinion by

Mr. Justice Nix :

The majority opinion ignores the fact that there are two theories under the facts of this case which could be offered to support a verdict of second degree murder. To support the trial court’s granting of the motion in arrest of judgment there must be a finding that the evidence presented was insufficient under either theory. I fully concur with the Court’s conclusion that the evidence did not establish malice for traditional common-law murder. I write this concurring opinion because I believe the Court failed to dispose of the second possible theory, to wit, common-law felony murder.

Originally, the English common-law felony murder rule provided that one who, in the commission or attempted commission of a felony, caused another’s death, was guilty of murder, without regard to the dangerous nature of the felony involved.1 As the number of felonies multiplied so as to include a great number of relatively minor statutory offenses, many of which involved *286no great danger to life or limb, it became necessary, in order to alleviate the harshness of the rule, to limit it in some fashion.2

Many Aunerican authorities have also concluded that this theory should be limited to those instances where the felony is inherently dangerous to human life.3 Under this view the Commonwealth’s burden encompasses more than merely showing that death resulted during the commission of a felony, it must, in addition, demonstrate that the felonious conduct posed an unreasonable threat to life or serious bodily harm.4

The basic theory underlying the felony murder rule is that the intent to commit the felony is equivalent to the legal malice required for common-law murder. See *287Commonwealth v. Malone, 354 Pa. 180, 47 A. 2d 445 (1946). For this theory to be tenable the nature of the felony must be such that an intent to commit that crime exhibits a conscious disregard for human life, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty. Where, however, the acts which constitute felonious conduct do not possess a sufficient danger to human life to justify the application of the doctrine of common-law felony murder, the doctrine is inapplicable because there is a failure to establish the requisite state of mind from the forming of the intention to commit the felony.

The case at bar is one involving a statutory offense with no common-law background. Narcotics and their use are a modern day problem, and the laws which control this problem were unknown at common law. As discussed in the majority opinion, the acts attributed to the appellee were not the type of conduct which would justify a finding of the requisite state of mind. An injection of heroin into the body of a user of narcotics in a dosage consistent with his prior habit does not represent the serious threat of death or grave bodily harm that would allow a court to conclude that the framing of an intention to perform these acts exhibited the characteristics which would be comparable to the legal malice required for murder.

In an analogous situation, the Supreme Court of Michigan in the case of People v. Pavlic, 227 Mich. 562, 199 N.W. 373 (1924), rejected the applicability of the felony murder rule on the ground that, although the crime was a felony, it was not directly and naturally dangerous to human life, where defendant sold illegally manufactured liquor to the deceased in violation of a law making the sale of intoxicants a felony and death resulted from acute alcoholism and exposure.

“It is not a common-law felony. It is not inherently criminal. Notwithstanding the fact that the statute has *288declared it to be a felony, it is an act not in itself directly and naturally dangerous to life. So if one in tbe commission of such an act unintentionally causes the death of another, he is not guilty of murder. . . .” Id. at 565, 199 N.W. at 374.

The Supreme Court of California has also reached the same conclusion in People v. Satchell, 6 Cal. 3d 28, 489 P. 2d 1361, 98 Cal. Rptr. 33 (1971) (violation of statute prohibiting the possession of a concealable weapon by one previously convicted of a felony); People v. Phillips, 64 Cal. 2d 574, 414 P. 2d 353, 51 Cal. Rptr. 225 (1966) (grand theft by false pretenses); People v. Williams, 63 Cal. 2d 452, 406 P. 2d 647, 47 Cal. Rptr. 7 (1965) (conspiracy to obtain methedrine, a narcotic). In reaching these results the California Court recognized that to extend the felony murder doctrine to include felonies not inherently dangerous to human life would not serve the ends of punishment.5

Thus, I conclude the lower court was correct in granting the motion in arrest of judgment.

Mr. Justice Eoberts and Mr. Justice Manderino join in this concurring opinion.

Perhaps the most common citation is dictum in Rex v. Plummer, Kil. 109, 117 (1701) : “So if two men have a design to steal a hen, and one shoots at the hen for that purpose, and a man be killed, it is murder in both, because the design was felonious.”

At the time the felony murder doctrine developed all felonies were punishable by death, so it made little difference whether the felon was hanged for the felony or for murder. Today most felonies are punishable by penalties much less severe than those imposed for murder, so the situation is different from what it was at common law. See Perkins, “A Re-examination of Malice Aforethought,” 43 Yale L.J. 537, 557-563 (1934).

Many writers have suggested limits on the broad language which the early cases employed in convictions based on the second degree felony murder rule. Moreland, The Law of Homicide 222 (1952). Moreland assumes the felony murder rule will be used only in prosecutions for deaths resulting from felonies dangerous to human life. Under his analysis “the lawfulness or unlawfulness of the act in the course of which the homicide occurred is not the deciding factor; the test of liability is whether it was of such a nature as to be wantonly disregardful of the lives and safety of others. This will depend upon the amount of danger involved in the act itself (Emphasis added). Accord, Holmes, The Common Law 58 (1881) ; Perkins, “A Re-examination of Malice Aforethought,” 43 Yale, L.J. 537, 560 (1934) ; Wechsler and Michael, “A Rationale of the Law of Homicide,” 37 Colum. L. Rev. 701, 1261 (1937).

Under the facts of the case at bar, death occurred as a result of the appellee’s violation of The Drug, Device, and Cosmetic Act, Act of September 26, 1961, P. L. 1664, §20, 35 P.S. §780-20 (e) and (d). This section makes it a felony for any person to possess, sell, dispense or give away heroin.

In Williams the California Court stated that the purpose of the felony murder rule “may be well served with respect to felonies such as robberies or burglary, but it has little relevance to a felony which is not inherently dangerous. If the felony is not inherently dangerous it is highly improbable that the potential felon will be deterred; he will not anticipate that any injury or death might arise solely from the fact that he will commit the felony.” 63 Cal. 2d at 457-458 n.4, 406 P. 2d at 650, 47 Cal. Rptr. at 10.