Since their cohort was killed as a direct result of this crime, can the surviving robbers be charged with murder?
TFred
Based on my research of Virginia caselaw, the answer is the robbers cannot be charged with murder. Here is the cite and some key excerpts: Wooden v. Com., 284 S.E.2d 811, 222 Va. 758 (Va., 1981)
In this appeal, the question for our determination is whether under Virginia's felony-murder statute, Code § 18.2-32, 1 one of the perpetrators of an armed robbery may be convicted of felony-murder for the killing of a co-felon by a resisting victim of the robbery.
[222 Va. 760] Patricia Ann Wooden pleaded not guilty to indictments charging her with the felony-murders of Walter Wallace Randolph, Jr. and Richard Earl Anthony. Randolph, the victim of a robbery in which Wooden participated, was killed during the robbery. Before his death, Randolph killed Anthony, one of the robbers. In her appeal, Wooden challenges only her conviction for the felony-murder of Anthony, her co-felon.
We begin our analysis of the applicable law with the observation that although felony-murder is a statutory offense, it includes the elements of common-law murder. When the legislature enacted § 18.2-32 it defined the conduct it sought to punish as nothing more than "[m]urder" in the commission of one of certain other enumerated felonies. Since murder is not elsewhere defined in the Code, 3 murder for purposes of the felony-murder statute is common-law murder coupled with the contemporaneous commission or attempted commission of one of the listed felonies.
At common law, a homicide is not murder unless done with malice. "Malice aforethought is the grand criterion which distinguishes murder from other killings." McWhirt's Case, 44 Va. (3 Gratt.) 594, 605 (1846). "The test of murder is malice. Every malicious killing is murder either in the first or second degree--the former if deliberate and premeditated, and the latter if not." Jacobs v. Commonwealth, 132 Va. 681, 686, 111 S.E. 90, 92 (1922), quoted with approval in Perkins v. Commonwealth, 215 Va. 69, 73, 205 S.E.2d 385, 387 (1974). With Code § 18.2-32, the legislature made killing with malice while committing or attempting to commit one of certain other specified felonies a form of first-degree murder. Neither premeditation nor an intent to kill is an element of felony-murder, but malice is. See Robertson v. Commonwealth, 1 Va.Dec. 851, 856, 20 S.E. 362, 364 (1894).
"Malice inheres in the doing of a wrongful act intentionally or without just cause or excuse, or as a result of ill will ...." Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947). Where a person maliciously engages in criminal activity, such as robbery, and homicide of the victim results, the malice inherent in the robbery provides the malice prerequisite to a finding that the homicide was murder. And, all of the criminal participants in the initial felony may be found guilty of the felony-murder of the victim so long as the homicide was within the res gestae of the initial felony. Haskell v. Commonwealth, 218 Va. 1033, 243 S.E.2d 477 (1978).
Since malice is an element of Va.Code § 18.2-32 felony-murder, the Commonwealth's position would require the elimination of proof of malice as a prerequisite to conviction under our felony-murder statute. If the statute is to be so amended, this result should be accomplished by legislative action rather than by judicial fiat.
For the foregoing reasons, we hold that under § 18.2-32, a criminal participant in a felony may not be convicted of the felony-murder of a co-felon killed by the victim of the initial felony. Accordingly, we will reverse the judgment of the trial court convicting Wooden of the felony-murder of her co-felon, Anthony, and dismiss the indictment.
Reversed and dismissed.
