While I concur in the foregoing opinion of my brother Follett, I wish to acid a few words. The argument of the prisoner’s counsel is that the third subdivision of section five, above cited, has no application where the death results directly from the personal violence used in making the assault, and where the felony is completely merged and lost in the higher crime. I think that, when carefully examined, the facts will be found not to present that point.
If. the prisoner had simply committed a rape on the girl, and death had resulted directly from such rape and from that alone, those facts would have presented the question which is argued by the prisoner’s counsel. But such are not the facts here. The death did not result from the rape, but from another act of violence, viz.: That of strangling the girl; which act was done while the prisoner was engaged in the commission of a felony, that is, the rape.
For instance, if one engaged in the commission of a burglary should lull another, even without design to effect death, the crime would undoubtedly come under this subdivision and would be murder in the first degree. So if the prisoner, while engaged in the commission of this rape, had strangled some person other than the girl in order to prevent that person’s interference, and had thus killed such person without design to effect death, the crime would have come within this same subdivision.
And thus too, in the present case, the felony of the rape did not itself cause the death ; and, therefore, the question whether it would be merged in the higher crime is not necessarily presented. The strangling of the girl was an act distinct from the rape, just as the killing by a burglar is distinct from the burglary. Although, in both cases, the act which caused the death may have been intended to facilitate the commission of the other crime.
Judgment and conviction affirmed and record remitted to the Court of Oyer and Terminer.