Jackson v. State ( 1979 )

OPINION

SOSA, Chief Justice.

The sole question presented by this petition for writ of certiorari is whether a co-perpetrator of a felony can be charged with the felony murder of a co-felon, under § 30-2-l(A)(3), N.M.S.A. 1978, (formerly § 40A-2-l(A)(3), N.M.S.A. 1953), when the killing is committed by the intended robbery victim while resisting the commission of the offense. We hold that he cannot.

On September 8, 1977, defendant and co-felon entered a pharmacy where Walter Bunt was working as a pharmacist. Defendant remained near the front of the store. Co-felon went back to the prescription counter where Bunt was standing, asked him questions about vitamins, then pulled a gun on him and demanded narcotic drugs. Co-felon and Bunt went into a back room where the drugs were stored. Bunt removed the drugs from the shelf and “accidentally” dropped some of them on the floor. Co-felon stooped to the floor to pick up the loose drugs. Bunt also bent down, as if to help co-felon, but instead grabbed for co-felon’s gun. As the two wrestled, co-felon yelled to defendant that he needed help.

Bunt sensed that defendant was approaching, stopped wrestling with co-felon, and told him to take the drugs and leave. As Bunt stepped into the bathroom, defendant attempted to shut him inside. When Bunt became aware that defendant had run out of the room, he loaded his personal pistol, opened the bathroom door, and exchanged shots with co-felon. Co-felon died from a gunshot wound inflicted by Bunt. Defendant fled with co-defendant, who had been waiting in a getaway car. Bunt never saw defendant or co-defendant and was unable to identify them.

Defendants were indicted and charged with the murder of their co-felon. Liability was based on the felony-murder doctrine. The trial court dismissed the murder charge, holding that the majority and best-reasoned view was that felon could not be held criminally responsible for the death of his co-felon when the killing was committed by the victim resisting the commission of the offense, and that State v. Harrison, 90 N.M. 439, 564 P.2d 1321 (1977) was not controlling in this situation. The Court of Appeals reversed. We reverse the Court of Appeals and affirm the trial court’s dismissal of the murder charge.

In State v. Jackson, 17 N.M.St.B.Bull. 2885, 2888, (Ct.App.1978), the Court of Appeals stated that the “second aspect of Harrison expands the application of the felony-murder rule to permit felons to be guilty of murder when the victim has killed their co-felon.” (Emphasis added.) We disagree. In Harrison, supra, this Court intended to limit the application of the felony-murder doctrine and to keep responsibility under this doctrine in line with the evolving concepts of criminal lav/. Thus, any expansion of the felony-murder doctrine would fly directly against the progressive direction taken by this court in Harrison, supra.

We do not subscribe to the Court of Appeals’ reasoning — a reasoning that would thrust our state backward to the unenlightened era of criminal responsibility. Instead we adopt the majority and best-reasoned view; namely, the felony-murder doctrine should not be expanded to cover the situation where the victim of the crime kills a perpetrator. See People v. Antick, 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43 (1975); State v. Canola, 73 N.J. 206, 374 A.2d 20 (1977); Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 261 A.2d 550 (1970); Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958).

We hold that, under the facts of this case, a co-perpetrator of a felony cannot be charged under our felony-murder statute with the felony murder of his co-felon when the killing is committed by the intended victim while resisting the commission of the offense. The decision of the Court of Appeals is hereby reversed. The trial court’s dismissal of the murder charge is affirmed.

McMANUS, Senior Justice, EASLEY and FEDERICI, JJ., concur. PAYNE, J., dissenting.