People v. Aaron

Decision Date22 December 1980
Docket NumberDocket Nos. 57376,Nos. 3-5,61140 and 61194,s. 3-5
Citation299 N.W.2d 304,409 Mich. 672,13 A.L.R. 4th 1180
PartiesPEOPLE of The State of Michigan, Plaintiff-Appellee, v. Stephen AARON, Jr., Defendant-Appellant. PEOPLE of The State of Michigan, Plaintiff-Appellant, v. Robert G. THOMPSON, Defendant-Appellee. PEOPLE of The State of Michigan, Plaintiff-Appellant, v. Jessie L. WRIGHT, Defendant-Appellee. Calendar409 Mich. 672, 299 N.W.2d 304, 13 A.L.R.4th 1180
CourtMichigan Supreme Court

Don W. Atkins, Detroit, Patrick M. Meter, Saginaw, Lynwood E. Noah, Gregory, for the State.

Carl Ziemba, Detroit, for Stephen Aaron, Jr.

Daniel J. Wright, Detroit, for Robert G. Thompson.

Marc L. Goldman, R. Michael Stillwagon, Ann Arbor, for Jessie L. Wright.


The existence and scope of the felony-murder doctrine have perplexed generations of law students, commentators and jurists in the United States and England, and have split our own Court of Appeals. 1 In these cases, we must decide whether Michigan has a felony murder rule which allows the element of malice required for murder to be satisfied by the intent to commit the underlying felony or whether malice must be otherwise found by the trier of fact. We must also determine what is the mens rea required to support a conviction under Michigan's first-degree murder statute. 2


In Thompson, defendant was convicted by a jury of first-degree felony murder as the result of a death which occurred during an armed robbery. The trial judge instructed the jury that it was not necessary for the prosecution to prove malice, as a finding of intent to rob was all that was necessary for the homicide to constitute first-degree murder. 3 The Court of Appeals held that reversible error resulted from the trial court's failure to instruct the jury on the element of malice in the felony-murder charge. 4

In Wright, defendant was convicted by a jury of two counts of first-degree felony murder for setting fire to a dwelling causing the death of two people. The trial court instructed the jury that proof that the killings occurred during the perpetration of arson was sufficient to establish first-degree murder. 5 The Court of Appeals reversed the convictions, holding that it was error to remove the element of malice from the jury's consideration. 6

Defendant Aaron was convicted of first-degree felony murder as a result of a homicide committed during the perpetration of an armed robbery. The jury was instructed that they could convict defendant of first-degree murder if they found that defendant killed the victim during the commission or attempted commission of an armed robbery. The trial court refused defendant's request to instruct on lesser included offenses. The Court of Appeals affirmed 7 and we remanded the case to the trial court for entry of a judgment of conviction of the lesser included offense of second-degree murder and for resentencing. 8 Defendant subsequently filed an application for reconsideration with this Court.

In Thompson and Wright we granted leave to appeal limited to the question: "Whether the Court of Appeals erred in reversing the murder conviction in this case because of the lack of an instruction on a requirement for finding malice in a felony murder situation." 9

In Aaron, we granted leave to appeal to consider whether defendant's conviction of first-degree murder could be reduced to second-degree murder where the jury was instructed only on felony-murder. 10


Felony murder has never been a static, well-defined rule at common law, but throughout its history has been characterized by judicial reinterpretation to limit the harshness of the application of the rule. Historians and commentators have concluded that the rule is of questionable origin and that the reasons for the rule no longer exist, making it an anachronistic remnant, "a historic survivor for which there is no logical or practical basis for existence in modern law." 11

The first formal statement of the doctrine is often said to be Lord Dacres ' case, Moore 86; 72 Eng.Rep. 458 (KB, 1535). 12 Lord Dacres and some companions agreed to enter a park without permission to hunt, an unlawful act, and to kill anyone who might resist them. 13 While Lord Dacres was a quarter of a mile away, one member of his group killed a gamekeeper who confronted him in the park. Although Lord Dacres was not present when the killing occurred, he, along with the rest of his companions, was convicted of murder and was hanged. Contrary to the construction placed on this case by those who see it as a source of the felony-murder rule, the holding was not that Lord Dacres and his companions were guilty of murder because they had joined in an unlawful hunt in the course of which a person was killed, but rather that those not present physically at the killing were held liable as principals on the theory of constructive presence. Moreover, because they had agreed previously to kill anyone who might resist them, all the members of the group shared in the mens rea of the crime. 14 Thus, because Lord Dacres ' case involved express malice, no doctrine finding malice from the intention to commit an unlawful act was necessary or in fact utilized. 15

Another early case which has been cited 16 for the origin of the felony-murder doctrine was decided after Lord Dacres ' case. In Mansell & Herbert's case, 2 Dyer 128b; 73 Eng.Rep. 279 (KB, 1558), Herbert and a group of more than 40 followers had gone to Sir Richard Mansfield's house "with force to seize goods under pretence of lawful authority". 17 One of Herbert's servants threw a stone at a person in the gateway which instead hit and killed an unarmed woman coming out of Mansfield's house. The question was agreed to be whether the accused were guilty of murder or manslaughter. Since misadventure was not considered, it can be assumed that the throwing of the stone was not a careless act but that the servant who threw the stone intended at least to hit, if not kill, some person on Mansfield's side. 18 Although the court divided, the majority held that if one deliberately performed an act of violence to third parties, and a person not intended died, it was murder regardless of any mistake or misapplication of force. 19 The minority would have held it to be manslaughter because the violent act was not directed against the woman who died. Thus, Herbert's case involved a deliberate act of violence against a person, which resulted in an unintended person being the recipient of the violent act.

Some commentators 20 suggest that an incorrect version of Dacres' case, which was repeated by Crompton, 21 formed the basis of Lord Coke's statement of the felony-murder rule:

"If the act be unlawful it is murder. As if A. meaning to steale a deere in the park of B., shooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in a bush: this is murder, for that the act was unlawfull, although A. had no intent to hurt the boy, nor knew not of him. But if B. the owner of the park had shot at his own deer, and without any ill intent had killed the boy by the glance of his arrow, this had been homicide by misadventure, and no felony.

"So if one shoot at any wild fowle upon a tree, and the arrow killeth any reasonable creature afar off, without any evill intent in him, this is per infortunium (misadventure): for it was not unlawful to shoot at the wilde fowle: but if he had shot at a cock or hen, or any tame fowle of another mans, and the arrow by mischance had killed a man, this had been murder, for the act was unlawfull." 22

The above excerpt from Coke is, along with Lord Dacres' and Herbert's cases, most often cited 23 as the origin of the felony-murder doctrine. 24 Unfortunately, Coke's statement has been criticized as completely lacking in authority. "A telling historical comment on the essential non-logic of the rule is made by those who see its genesis as a blunder by Coke in the translation and interpretation of a passage from Bracton." 25 The passage from Bracton is as follows:

"But here it is to be distinguished whether a person is employed upon a lawful or unlawful work, as if a person has projected a stone towards a place across which men are accustomed to pass, or whilst a person pursues a horse or an ox, and some one has been struck by the horse or the ox, and such like, this is imputed to his account. But if he was employed in a lawful work, as if a master is flogging his scholar for the sake of discipline, or if when a person was casting down hay from a cart, or cutting into a tree and such like, if he had taken as diligent care as he could, by looking out and by calling out, * * * or the master not exceeding moderation in flogging his scholar, blame is not imputable to him." (Emphasis added.) 26

This authority, however, does not support Coke's unwarranted extension which Stephen termed "astonishing" 27 and "monstrous". 28 As one writer points out:

"It can be seen at a glance that all Bracton intends to convey by this is that the killing in the cases he mentions would be unlawful; he in no way states that it would amount to murder ('murdrum'), which term indeed had quite a special and peculiar significance at the time at which he wrote, being properly confined to crimes of the nature of secret assassinations. Bracton, in fact, was too familiar with the Roman law * * * to have made such a mistake." 29

Stephen notes also that the example Bracton uses would not come within the category of murder as Bracton defines it. 30

In addition to his citation to Bracton, Coke cites three cases to support his statement of the felony-murder rule. Yet Stephen, "upon careful search into Coke's authority", concludes that Coke's statement of the rule is "entirely unwarranted by the authorities which he quotes". 31 Another early writer, commenting on the harsh doctrine...

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