Question 2- felony murder
Bill was served with a summons in a divorce action instituted by his wife. Angered by
this, he decided to travel from Portland, Maine to Boston to purchase a gun and effect a
confrontation with his wife. Bill needed cash to travel to Boston and purchase the gun,
and his efforts to borrow the requisite funds from friends were not successful. On the
same day, Charles, Bill’s grandfather, cashed a check for approximately $400. In the
early morning hours of October 2, Bill arrived at the home of Charles, who lived alone.
Bill pounded on the door and sought admission but Charles refused. Defendant informed
his grandfather that he was drunk and cold. Finally, Bill said, 'You let me in or I will
break the f****g door down,' whereupon Charles opened the door. The lights in
decedent's home went out and there was an ‘ungodly screech’. Immediately thereafter Bill
was heard to say, 'Grandpa, I didn't do it,' but the voice of Charles was not heard again.
Bill then carried the inert body of the decedent over his shoulder and proceeded with it
toward a wharf and the ocean. Bill twice thereafter returned to Charles’ home using the
lights while he was inside. Bill thereafter arranged to be taken by taxi to Boston where he
spent the rest of the night in a hotel.
Charles’ body was found floating in the water near the wharf on the morning of October
2. It was apparent that shortly before his death Charles had suffered bruises about the
head and face and the fracture of nine ribs. Further, at least one of his pants pockets had
been pulled inside out and the pants torn along the seam near the pocket. No money was
found on the decedent's person or, after an exhaustive search, in his home. The coroner
concluded that Charles was alive when he entered the water and that he thereafter
drowned.
When informing the jury, the judge said, 'And I will tell you now if a person is engaged,
and I mean by that is presently engaged in the commission of a felony and if while so
engaged in the commission of a felony the death of another person results, such a person
would be guilty of murder because the law would imply malice from the fact that the
person was engaged in the commission of a felonious act.' This was a correct statement of
the applicable law. In his explanation of the felony murder rule, the presiding Justice
adequately defined each of the three possible felonies, robbery, assault with intent to rob
and assault and battery high and aggravated.
Could Bill be convicted of felony-murder?
Model Answer: To invoke the felony murder rule there must be proof a homicide was
committed 1) in the perpetration of or an attempt to perpetrate a felony and 2) that the
collateral felony was one inherently dangerous to human life. In this case the act of
carrying the decedent, either unconscious or unable to resist, to the wharf, and casting
him alive into the sea was itself assault and battery high and aggravated, since it was a
felony inherently dangerous to human life.
Here, the evidence suggests that Charles was alive when thrown into the ocean. The
evidence does not suggest that the decedent was killed by the defendant while the latter
was in the heat of passion produced by sudden provocation, which would be required to
justify a verdict of manslaughter. As such, it is arguable that the underlying assault does
not merge into the homicide. Instead, the death occurred as a consequence in the
perpetration of the felony. When in fact death did result, the felony-murder rule applied.
Problem and answer from the Supreme court of Maine in State v. Trott, 289 A.2d 414,
Me. 1972.
~~ — Sn — —- sue a we ee ee —— a ae ee ie ee
— ee ~ oe ~——— —— — ie oe —~ et ee ere a
-— — - ~_ - — - <n ene —om ~ oe -—~
aaa _ _———_ — —- —— ~- _ ae a _— a es
*START*START*START*START*START*START*START*START*START*START*START*
4110440-POWELL, JEFFREY
NUMBER OF REQUESTS IN GROUP:
APPROXIMATE NUMBER OF LINES:
APPROXIMATE NUMBER OF PAGES:
NUMBER OF DOCUMENTS TO BE DELIVERED:
DATE AND TIME PRINTING STARTED:
330
10/13/2004
10:53:14 am (Central)
CLIENT IDENTIFIER:
DATE OF REQUEST:
JEFFREYPOWELL
10/13/2004
THE CURRENT DATABASE IS ME-CS
—
——
_—— — — —- — —
289 A.2d 414.
289 A.2d 414
(Cite as: 289 A.2d 414)
< KeyCite Citations >
Supreme Judicial Court of Maine.
STATE of Maine
V.
Larry M. TROTT.
March 31, 1972.
Defendant was convicted in Superior Court,
Washington County, of murder and he appealed.
The Supreme Judicial Court, Webber, J., held that
although record on appeal indicated that trial judge
in instructing on crime of murder used phrase
’malice or forethought even expressed or implied,’
instead of phrase ’malice aforethought, either
express or implied,’ there was no manifest or
obvious error even upon the erroneous record in
view of careful legal definitions relating to the
recorded language which gave those words that same
meaning required to be given to ‘malice
aforethought either express or implied.’
Appeal denied.
Archibald, J., did not sit.
West Headnotes
[1] Criminal Law @= 1039
110k1039 Most Cited Cases
Any objection to allowing person to serve as jury
officer who was scheduled to be a witness for the
state and who did in fact testify was waived where
no request for mistrial was made, and issue could
FOR EDUCATIONAL USE ONLY
—______—. —_—-- —— ——— — — ———.
Page 1
not be raised for the first time on appeal. Maine
Criminal Rules, rules 51, 52(b).
[2] Criminal Law @= 850
110k850 Most Cited Cases
Roles of witness and jury officer should be kept
separate.
[3] Criminal Law @= 1178
110k1178 Most Cited Cases
(Formerly 110k178)
Point not briefed or argued on appeal would be
treated as abandoned.
[4] Homicide €= 588
203k588 Most Cited Cases
(Formerly 203k18(1))
If while person is engaged in commission of a
felony the death of another person results, the actor
is guilty of murder.
[5] Homicide €= 597
203k597 Most Cited Cases
(Formerly 203k18(1))
Act of carrying decedent, either unconscious or
unable to resist, to wharf and casting him alive into
sea was assault and battery high and aggravated
rendering applicable the felony murder rule.
[6] Criminal Law @= 1110(9)
110k1110(9) Most Cited Cases
Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works.
Westlaw.
289 A.2d 414.
(Cite as: 289 A.2d 414)
(Formerly 110k10(9))
Even though record on appeal was patently
erroneous in indicating that trial judge used phrase
"malice or forethought even expressed or implied"
in defining crime of murder, remand for correction
of record was unnecessary inasmuch as case could
properly be decided upon the existing record.
[7] Criminal Law @= 1109(3)
110k1109(3) Most Cited Cases
(Formerly 110k109(3))
Although record on appeal indicated that trial judge
in instructing on crime of murder used phrase
"malice or forethought even expressed or implied,"
instead of phrase "malice aforethought either express
or implied," there was no manifest or obvious error
even upon the erroneous record in view of careful
legal definitions relating to the recorded language
which gave those words the same meaning required
to be given to "malice aforethought either express or
implied."
[8] Criminal Law @= 30
110k30 Most Cited Cases
Reviewing court would not adopt and apply to case
on appeal from murder conviction the "felony-
merger” doctrine.
*415 Peter W. Culley, William F. Gore, Asst.
Attys. Gen., Augusta, for plaintiff.
William Talbot, Machias, Francis A. Brown,
Calais, for defendant.
Before DUFRESNE, C. J., and WEBBER,
WEATHERBEE, POMEROY and WERNICK, JJ.
WEBBER, Justice.
Defendant appeals from a conviction of the murder
of his octather, Charles H. Trott, a man 86 years
. The jury could have found on the basis of
direct and circumstantial evidence and reasonable
inferences to be drawn therefrom that on October 1,
1968, the day before this homicide occurred, the
defendant was without funds; that he was served
with a summons in a divorce action instituted by his
wife; that, angered by this action, he formed the
intention to travel from Eastport to Calais, to
purchase a gun and thus armed, effect a
FOR EDUCATIONAL USE ONLY Page 2
confrontation with his wife; that he felt the need of
funds to defray the cost of travel to Calais and the
purchase of the gun; that his efforts to borrow the
requisite funds from friends were not successful;
that on that same day the decedent Charles H. Trott
cashed a check for approximately 96 Abd the
early morning hours of October 2, the
defendant arrived at the home of the decedent who
lived alone; that the defendant pounded on the door
and sought admission which was repeatedly refused
by the decedent; that in the course of pleading for
and demanding admission, defendant informed his
grandfather that he was drunk and cold; that
defendant, still not having gained admission, finally
said, *You let me in or I will break the —_[FN1]
door down,’ *416 whereupon after more pounding
the door was opened, the lights in decedent’s home
went out, and there was an “ungodly screech’; that
immediately thereafter defendant was heard to say,
’Grandpa, I didn’t do it,’ but the voice of the
decedent was not again heard; that defendant then
emerged and vomited after which he reentered the
house; that shortly after, he again emerged carrying
the inert body of the decedent over his shoulder; that
he proceeded with it toward a wharf and the ocean;
that defendant twice thereafter returned to
decedent’s home using the lights while he was
inside; that defendant thereafter arranged to be taken
by taxi to Calais where he spent the rest of the night
in a hotel; that he paid the driver $10 for the fare
and voluntarily gave him an additional $2 ’to keep
(his) mouth shut;’ that he informed the driver that
he had about $200 which he asserted had come to
him from an unnamed friend from ’Washington’;
that in Calais he displayed adequate funds with
which to pay his hotel bill, to buy his breakfast and
liquor during the forenoon, to purchase a gun and
ammunition and to buy new clothes; that the body of
the decedent was found floating in the water near the
wharf on the morning of October 2; that shortly
before his death the decedent had suffered bruises
about the head and face and the fracture of nine ribs;
that at least one of his pants pockets had been pulled
inside out and the pants torn along the seam near the
pocket; that no money was found on the decedent’s
person nor, in the course of an exhaustive search, in
his home; and that the decedent was alive when he
entered the water and that he thereafter drowned.
No evidence was forthcoming from any source
tending to suggest that the decedent was killed by
the defendant while the latter was in the heat of
passion produced by sudden provocation such as
Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works.
289 A.2d 414.
(Cite as: 289 A.2d 414, *416)
would be required to justify a verdict of
manslaughter. The evidence therefore fully supports
the jury’s conclusion that the defendant was guilty
of murder and indeed it is difficult to see how any
other verdict was rationally supportable.
FN1. Obscenity omitted.
We turn now to other specific points of appeal.
[FN2]
FN2. Point #3 raises the issue as to the sufficiency
of the evidence to support the verdict, first above
discussed.
1. It was prejudicial error to allow David R.
Clemons to serve as a jury officer since he was
scheduled to be a witness for the State and did in
fact testify.’
[1] This issue cannot be raised for the first time on
appeal. The controlling principle is set forth in
Bennett v. State of Maine et al. (1965) 161 Me.
489, 492, 214 A.2d 667, wherein it was stated:
"Where objections to these alleged trial
irregularities were not raised in the trial court, they
must be deemed waived, and will not be considered
for the first time on appeal. State v. Smith, 140
Me. 255, 37 A.2d 246. None can be classed as
highly prejudicial’ or ’well calculated to result in
injustice’ or otherwise so fundamentally unfair as
to prevent an impartial trial or a true verdict based
solely on the evidence and the law applicable
thereto, where an exception to the above rule is
permitted. State v. Smith, supra.’[FN3]
FN3. See M.R.Crim.P., Rules 51 and 52(b).
When this trial was about to commence, the Justice
below indicated to counsel and to the defendant in
the absence of the jury that Mr. Clemons, a deputy
sheriff assigned to duty as a jury officer, was to be
called by the State as a witness but only as to
continuity of control and custody of the decedent’s
body. The defendant and his counsel gave their
consent to this procedure. The officer was later
called and gave the anticipated brief testimony
without objection. Subsequently, the presiding
Justice had occasion to hold a preliminary hearing in
the absence of the jury for the *417 purpose of
determining whether certain alleged admissions
[FN4] might be admitted in evidence. Mr. Clemons
FOR EDUCATIONAL USE ONLY Page 3
was recalled and without objection gave evidence as
to circumstances existing when defendant was
interrogated by other officers, the giving of
warnings as to constitutional rights and the like.
The Court ruled that any evidence bearing on
alleged admissions or confessions must be excluded
and thus Mr. Clemons gave no further testimony in
the presence of the jury. No objection was ever
made to his continuing to serve as jury officer. No
request for mistrial was made. There is no hint or
suggestion, even on the part of the defendant, that
there was any impropriety with respect to the
officer’s relations with the jury. The defendant’s
objection, if he had any, must be deemed waived.
FN4. The content of these alleged admissions and
confession nowhere appears in the record as a result
of their exclusion by the trial Court. As noted, they
never reached the jury.
[2] In so saying, however, we do not wish to seem
to lend any encouragement to the practice. Persons
can and should be found to attend the jury who do
not have such knowledge of the case as is likely to
require their services as witnesses for either the State
or the defendant. The relationship between
attending officer and jury is necessarily a close and
continuing one. At the very least, the use of such an
officer as a witness is a fruitful source of time
consuming argument on appeal or subsequent
collateral attack on a conviction. At worst and
under circumstances very different from those
existing in the instant case, the problem can assume
constitutional proportions and necessitate a new
trial.[FN5] The better practice and in fact the only
entirely safe course is to keep separate the roles of
witness and jury officer.
FNS. See Turner v. Louisiana (1965) 379 U.S. 466,
85 S.Ct. 546, 13 L.Ed.2d 424, where jury officers
were key witnesses on the issue of guilt or innocence
and not merely giving evidence as to ‘some
uncontroverted or merely formal aspect of the case.’
Under the circumstances existing in Turner, the
Court saw a denial of due process.
°2. The Defendant was aggrieved by the refusal of
the Court to grant his motion in arrest of
judgment.’
[3] No doubt recognizing that reasons advanced
below in support of this motion were frivolous and
Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works.
Westlaw.
|
289 A.2d 414.
(Cite as: 289 A.2d 414, *417)
devoid of merit, as indeed they were, the defendant
did not brief or argue this point on appeal. We treat
the point as abandoned.
°4. The Court erred in the instructions to the jury
in indicating that there was more than one type of
murder in Maine.’
[4][5] This point is governed by M.R.Crim.P.,
Rule 30(b) which states in pertinent part:
** * * No party shall assign as error any portion
of the charge or omission therefrom unless he
objects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which he
objects and the grounds of his objection.’
In this case no objection was offered as required by
the rule and the point is not saved on appeal.[FN6]
FN6. There was no error in any event. The Justice
characterized homicide with express malice as a
different ’type’ of murder from homicide with
implied malice. He was not discussing degrees of
murder and could not be so understood.
5. The Court erred in the instructions to the jury
by charging that it is nurder if the killing happens
while the defendant is engaged in committing a
felonious act.’
The point as thus worded does not fairly or
accurately paraphrase what the Justice below
actually instructed the jury. He said, ’And I will
tell you now if a person is engaged, and I mean by
that is presently engaged in the commission of a
*418 felony and if while so engaged in the
commission of a felony the death of another person
results, such a person would be guilty of murder
because the law would imply malice from the fact
that the person was engaged in the commission of a
felonious act.’ This was a correct statement of the
applicable law. Here again the point is not saved on
appeal under Rule 30(b) since no objections were
lodged.[FN7]
FN7. As the facts were postured, the jury could
have found any one of three felonies committed
resulting in the death of the decedent. It must be
noted that the res gestae embraced one continuous
act commencing with the altercation at decedent’s
home and culminating when decedent was cast alive
into the sea to drown. In his explanation of the
felonymurder rule, the presiding Justice adequately
defined each of the three possible felonies, robbery,
assault with intent to rob, and assault and battery
FOR EDUCATIONAL USE ONLY Page 4
high and aggravated. The act of carrying the
decedent, either unconscious or unable to resist, to
the wharf, and casting him alive into the sea was
itself assault and battery high and aggravated since it
was an act of such a nature as to cause death or
serious bodily harm. When in fact death did result
the felony-murder rule had application.
°8. The Court erred in the instructions to the jury
by charging that the crime of murder involved
"malice of forethought’ which phrase introduced a
new definition of murder, not defined in the
Statutes of this State.’
This point raises serious doubts as to the accuracy
of the record supplied to the Law Court on appeal
and poses policy questions as to what course this
Court can and should pursue either when the record
is meaningless and incomprehensible or the Court is
satisfied that the record is patently erroneous. When
in the course of his instructions the Justice below
reached the point of discussing the particular offense
charged and the law specifically applicable thereto,
he began by reading to the jury the statutory
definition of murder found in 17 M.R.S.A., Sec.
2651. The statute reads, "Whoever unlawfully kills
a human being with malice aforethought, either
express or implied, is guilty of murder * * *.’
(Emphasis ours). Nevertheless, the record indicates
that what the Justice read was, Whoever unlawfully
kills a human being with malice or forethought even
expressed or implied is guilty of murder.’
(Emphasis ours). When the Justice below turned his
attention to a possible verdict of manslaughter he
began by reading to the jury the pertinent portion of
17 M.R.S.A., Sec. 2551 which provides: ’Whoever
unlawfully kills a human being in the heat of
passion, on sudden provocation, without express or
implied malice aforethought * * * or commits
manslaughter as defined by the common law, shall
be punished * * *.’ We find in the record,
however, ’Whoever, unlawfully kills a human being
in the heat of passion on sudden provocation without
expressed or implied malice or forethought or
commits manslaughter as defined by the common
law shall be punished, etc.’ On at least fifteen other
occasions we find in the record this same garbled
substitution for ’aforethought’ and ’express.’[FN8]
In some instances it is apparent that the Justice was
reading directly from leading Maine cases in which
the classical phrase ’malice aforethought either
express or implied’ was being explained and
Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works.
a
289 A.2d 414.
(Cite as: 289 A.2d 414, *418)
defined. The Justice presiding was and is one of the
most able, experienced and learned Justices in our
judicial system. It is inconceivable that he would or
ever did use the language attributed to him by this
record. Moreover, the case was tried by competent
and experienced counsel, themselves thoroughly
familiar with the time honored legal phraseology
under consideration. They heard what was said to
the jury and their failure to object or comment
thereon speaks volumes as to the accuracy of this
record. It is transparently obvious to us that this.
record is in e i actuality the Justice
eo" + — arc arpa hin mer eal
aforethought” and’ express-‘orimplied22°°"'""
FN8. In some instances the record shows ’malice of
forethought.’ (Emphasis supplied)
*419 [6] As one alternative we could under inherent
powers of an appellate court remand the case,
retaining jurisdiction meanwhile, for correction of
manifest errors in the record. This was the course
followed under remarkably similar circumstances in
Parker v. State (1964-Del.) 205 A.2d 531, 533.
The Court said, ’By the very nature of the right to
review, of necessity we must have an adequate and
accurate record of the proceedings below.’ We
conclude, however, that in the instant case it is
unnecessary to incur the delay attendant upon such a
remand since the case can properly be decided upon
the existing record.
[7] We have dealt with the record problem at some
length as a part of our responsibilities for judicial
administration. The Justices at nisi prius are entitled
to some protection from public assertion of error
based upon actions they never took or words they
never uttered and if we do not see fit to remand for
correction, we can at least by our opinion make
abundantly clear our awareness that this is what has
occurred. We could, of course, rather summarily
dismiss this Point of Appeal as not saved below
under Rule 30(b), that being the case. We have,
however, reviewed the instructions to ascertain
whether, even upon the erroneous record before us,
there is manifest or obvious error as defined by
Bennett, supra. The careful and painstaking legal
definitions and explanations as shown on this record
which relate to the recorded language, ’malice or
(of) forethought either (even) expressed or implied’
gave to those words for the purposes of this trial the
same meaning required to be given to ‘malice
FOR EDUCATIONAL USE ONLY Page 5
aforethought either express or implied.’ The jury
was instructed that they must accept the law as given
to them by the Court, they being the sole arbiters of
the facts. Thus the law of the case given to them for
application to the facts was correct law, even on this
record, and would not lead to an erroneous verdict.
Point 8 is without merit.
[8] Lastly, the defendant contends that we should
adopt and apply to this case the so-called ’felony-
merger’ doctrine which has found favor in some
jurisdictions. The doctrine has never been adopted
or even considered in this State. We decline to
consider such an abrupt departure from our prior
decisional law in a case in which the proposed
change was not presented or considered below and is
of doubtful application to the facts of this case. Rule
30(b) controls.
The entry will be
Appeal denied.
All Justices concurring.
ARCHIBALD, J., did not sit.
289 A.2d 414
END OF DOCUMENT
Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works.
4110440 - POWELL, JEFFREY
* END* END* END* END* END* END* END* END* END*
Westlaw.
What Became of Conservatives? - by Paul Craig Roberts Page 1 of 4
ANTI -
WAR G@2s PRINTTHIS
a
November 26, 2004
What Became of Conservatives?
by Paul Craig Roberts
I remember when friends would excitedly telephone to report that Rush
Limbaugh or G. Gordon Liddy had just read one of my syndicated columns
over the air. That was before I became a critic of the U.S. invasion of Iraq,
the Bush administration, and the neoconservative ideologues who have
seized control of the U.S. government.
America has blundered into a needless and dangerous war, and fully half of
the country's population is enthusiastic. Many Christians think that war in
the Middle East signals "end times" and that they are about to be wafted
up to heaven. Many patriots think that, finally, America is standing up for
itself and demonstrating its righteous might. Conservatives are taking out
their Vietnam frustrations on Iraqis. Karl Rove is wrapping Bush in the
protective cloak of war leader. The military-industrial complex is drooling
over the profits of war. And neoconservatives are laying the groundwork for
Israeli territorial expansion.
The evening before Thanksgiving, Rush Limbaugh was on C-Span TV
explaining that these glorious developments would have been impossible if
talk radio and the conservative movement had not combined to break the
power of the liberal media.
In the Thanksgiving issue of National Review, editor Richard Lowry and
former editor John O'Sullivan celebrate Bush's reelection triumph over "a
hostile press corps." "Try as they might," crowed O'Sullivan, "they couldn't
put Kerry over the top."
There was a time when I could rant about the "liberal media" with the best
of them. But in recent years I have puzzled over the precise location of the
"liberal media."
Not so long ago, I would have identified the liberal media as the New York
http:// antiwar.printthis.clickability.com/pt/cpt?action=cpt&title=What+Became+of+Cons... 11/26/2004
What Became of Conservatives? - by Paul Craig Roberts Page 2 of 4
Times and Washington Post, CNN and the three TV networks, and National
Public Radio. But both the Times and the Post fell for the Bush
administration's lies about WMD and supported the U.S. invasion of Iraq.
On balance, CNN, the networks, and NPR have not made an issue of the
Bush administration's changing explanations for the invasion.
Apparently, Rush Limbaugh and National Review think there is a liberal
media because the prison torture scandal could not be suppressed and a
cameraman filmed the execution of a wounded Iraqi prisoner by a U.S.
Marine.
Do the Village Voice and The Nation comprise the "liberal media"? The
Village Voice is known for Nat Hentoff and his columns on civil liberties.
Every good conservative believes that civil liberties are liberal because they
interfere with the police and let criminals go free. The Nation favors
spending on the poor and disfavors gun rights, but I don't see the "liberal
hate" in The Nation's feeble pages that Rush Limbaugh was denouncing on
C-Span.
In the ranks of the new conservatives, however, I see and experience much
hate. It comes to me in violently worded, ignorant, and irrational e-mails
from self-professed conservatives who literally worship George Bush. Even
Christians have fallen into idolatry. There appears to be a large number of
Americans who are prepared to kill anyone for George Bush.
The Iraqi War is serving as a great catharsis for multiple conservative
frustrations: job loss, drugs, crime, homosexuals, pornography, female
promiscuity, abortion, restrictions on prayer in public places, Darwinism,
and attacks on religion. Liberals are the cause. Liberals are against America.
Anyone against the war is against America and is a liberal. "You are with
us or against us.”
This is the mindset of delusion, and delusion permits of no facts or
analysis. Blind emotion rules. Americans are right and everyone else 1s
wrong. End of the debate.
That, gentle reader, is the full extent of talk radio, Fox News, the Wall
Street Journal editorial page, National Review, the Weekly Standard, and,
indeed, of the entire concentrated corporate media, where non-controversy
in the interest of advertising revenue rules.
Once upon a time there was a liberal media. It developed out of the Great
Depression and the New Deal. Liberals believed that the private sector was
the source of greed that must be restrained by government acting 1n the
“
http:// antiwar. printthis.clickability.com/pt/ cpt?action=cpt&title=What+B ecame+of+Cons... 11/26/2004
What Became of Conservatives? - by Paul Craig Roberts Page 3 of 4
public interest. The liberals' mistake was to identify morality with
government. Liberals had great suspicion of private power and insufficient
suspicion of the power and inclination of government to do good.
Liberals became Benthamites (after Jeremy Bentham). They believed that as
the people controlled government through democracy, there was no reason
to fear government power, which should be increased in order to
accomplish more good.
The conservative movement that I grew up in did not share the liberals’
abiding faith in government. "Power corrupts, and absolute power corrupts
absolutely."
Today it is liberals, not conservatives, who endeavor to defend civil liberties
from the state. Conservatives have been won around to the old liberal view
that as long as government power is in their hands, there is no reason to
fear it or to limit it. Thus, the PATRIOT Act, which permits government to
suspend a person's civil liberties by calling him a terrorist with or without
proof. Thus, preemptive war, which permits the president to invade other
countries based on unverified assertions.
There is nothing conservative about these positions. To label them
conservative is to make the same error as labeling the 1930s German
Brownshirts conservative.
American liberals called the Brownshirts "conservative," because the
Brownshirts were obviously not liberal. They were ignorant, violent,
delusional, and they worshipped a man of no known distinction.
Brownshirts' delusions were protected by an emotional force field. Adulation
of power and force prevented Brownshirts from recognizing the implications
for their country of their reckless doctrines.
Like Brownshirts, the new conservatives take personally any criticism of
their leader and his policies. To be a critic is to be an enemy. I went
overnight from being an object of conservative adulation to one of derision
when I wrote that the U.S. invasion of Iraq was a "strategic blunder."
It is amazing that only a short time ago the Bush administration and its
supporters believed that all the U.S. had to do was to appear in Iraq and
we would be greeted with flowers. Has there ever been a greater example of
delusion? Isn't this on a par with the Children's Crusade against the
Saracens in the Middle Ages?
Delusion is still the defining characteristic of the Bush administration. We
http:// antiwar. printthis.clickability.com/pt/ cpt?action=cpt&title=What+Became+of+Cons... 11/26/2004
What Became of Conservatives? - by Paul Craig Roberts Page 4 of 4
have smashed Fallujah, a city of 300,000, only to discover that the 10,000
U.S. Marines are bogged down in the ruins of the city. If the Marines leave,
the "defeated" insurgents will return. Meanwhile, the insurgents have moved
on to destabilize Mosul, a city five times as large. Thus, the call for more
U.S. troops.
There are no more troops. Our former allies are not going to send troops.
The only way the Bush administration can continue with its Iraq policy is
to reinstate the draft.
When the draft is reinstated, conservatives will loudly proclaim their pride
that their sons, fathers, husbands, and brothers are going to die for “our
freedom." Not a single one of them will be able to explain why destroying
Iraqi cities and occupying the ruins are necessary for "our freedom." But
this inability will not lessen the enthusiasm for the project. To protect their
delusions from "reality-based" critics, they will demand that the critics be
arrested for treason and silenced. Many encouraged by talk radio already
speak this way.
Because of the triumph of delusional "new conservatives" and the demise of
the liberal media, this war is different from the Vietnam war. As more
Americans are killed and maimed in the pointless carnage, more Americans
have a powerful emotional stake that the war not be lost and not be in
vain. Trapped in violence and unable to admit mistakes, a reckless
administration will escalate.
The rapidly collapsing U.S. dollar is hard evidence that the world sees the
U.S. as bankrupt. Flight from the dollar as the reserve currency will
adversely impact American living standards, which are already falling. The
U.S. cannot afford a costly and interminable war.
Falling living standards and an inability to impose our will on the Middle
East will result in great frustrations that will diminish our country.
Find this article at:
http://www.antiwar.com/roberts
—-
| Check the box to include the list of links referenced in the article.
http:// antiwar printthis.clickability.com/pt/cpt?action=cpt&title=What+Became+of+Cons. .. 11/26/2004
ReadingGroupGuides.com - Under the Banner of Heaven by Jon Krakauer Page 1 of 4
lees = : 9 | e's cache of http:/www.readinggroupguides.com/guides3/under_banner_heavent.asp as retrie
Goog!e's cache is the snapshot that we took of the page as we crawled the web.
The page may have changed since that time. Click here for the current page without highlighting.
This cached page may reference images which are no longer available. Click here for the cached text only.
To link to or bookmark this page, use the following url: http: //www.google.com/search?
q=cache: 68fJUe8JuyQJ: www. readinggroupguides.com/guides3/under banner heavenl.asp+book+reviews+under+thetbanne
Google is not affiliated with the authors of this page nor responsible for its content.
These search terms have been highlighted: book under banner heaven krakauer
These terms only appear in links pointing to this page: reviews
Home Find a Guide §
Roundtable Advice & Ideas §
Newsletter Feedback
About This Book
: Under the Banner of Heaven STENT ETPTTET
Jiscussion Questions by Jon Krakauer
Critical Praise
List Price: $14.95
_ Author Biography Pages: 432 “es ives Alan
r - Format: Paperback INUDEK i
excerpt ISBN: 1400032806 : BANNER‘:
Publisher: Anchor - 1h 268en i
OF HEAVEN
: Buy this book trem Amazon.com daxa: oe pace Snwepae rant oe
q Canadian Readers: Buy this book from Amazon.ca |
Random House
About this Book
Jon Krakauer's literary reputation rests on insightful chronicles of
lives conducted at the outer limits. He now shifts his focus from
extremes of physical adventure to extremes of religious belief
within our own borders, taking readers inside isolated American
communities where some 40,000 Mormon Fundamentaiists still
practice polygamy. Defying both civil authorities and the Mormon
establishment in Salt Lake City, the renegade leaders of these
Taliban-like theocracies are zealots who answer only to God.
At the core of Krakauer’s book are brothers Ron and Dan
Lafferty, who insist they received a commandment from God to
kill a blameless woman and her baby girl. Beginning with a
meticulously researched account of this appalling double murder,
Krakauer constructs a multi-layered, bone-chilling narrative of
messianic delusion, polygamy, savage violence, and unyielding
faith. Along the way he uncovers a shadowy offshoot of America's
fastest growing religion, and raises provocative questions about
http://64.233.161.104/ search?q=cache:68fJUe8JuyQJ -www.readinggroupguides.com/gui... 11/26/2004
ReadingGroupGuides.com - Under the Banner of Heaven by Jon Krakauer Page 2 of 4
the nature of religious belief.
top of the page
Discussion Questions
e- = -
1. In his prologue, Jon Krakauer writes that the aim of his book
is to "cast some light on Lafferty and his ilk," which he concedes is
a daunting but useful task for what it may tell us "about the roots
of brutality, perhaps, but even more for what might be learned
about the nature of faith" [p. XXIII]. What does the book reveal
about fanatics such as Ron and Dan Lafferty? What does it reveal
about brutality and faith and the connections between them?
2. Why does Krakauer move back and forth between Mormon
history and contemporary events? What are the connections
between the beliefs and practices of Joseph Smith and his
followers in the nineteenth century and the behavior of people like
Dan and Ron Lafferty, Brian David Mitchell, and others in the
twentieth?
3. Prosecutor David Leavitt argued that "People in the state of
Utah simply do not understand, and have not understood for fifty
years, the devastating effect that the practice of polygamy has on
young girls in our society" [p. 24]. How does polygamy affect
young girls? Is it, as Leavitt claims, pedophilia plain and simple?
4. Joseph Smith claimed that the doctrine of polygamy was
divinely inspired. What earthly reasons might also explain Smith's
attraction to having plural wives?
5. When Krakauer asks Dan Lafferty if he has considered the
parallels between himself and Osama bin Laden, Dan asserts that
bin Laden is a "child of the Devil" and that the hijackers were
"following a false prophet," whereas he is following a true prophet
[p. 321]. No doubt, bin Laden would say much the same of
Lafferty. How are Dan Lafferty and Osama bin Laden alike? In
what ways are all religious fundamentalists alike?
6. Krakauer asks: "if Ron Lafferty were deemed mentally ill
because he obeyed the voice of God, isn't everyone who believes
in God and seeks guidance through prayer mentally ill as
well?" [p. 297] Given the nature of, and motive for, the murders
of Brenda Lafferty and her child, should Ron Lafferty be
considered mentally ill? If so, should all others who "talk to God"
or receive revelations—a central tenant of Mormonism—also be
considered mentally ill? What would the legal ramifications be of
such a shift in thought?
7. Krakauer begins part III with a quote from Bertrand Russell,
who asserts that "every single bit of progress in humane feeling,
every improvement in the criminal law, every step toward the
diminution of war, every step toward better treatment of the
colored races, or every mitigation of slavery, every moral progress
http://64.233.161.104/ search?q=cache:68fJUe8JuyQJ -www.readinggroupguides.com/gui... 11/26/2004
ReadingGroupGuides.com - Under the Banner of Heaven by Jon Krakauer Page 3 of 4
that there has been in the world, has been consistently opposed
by the organized churches of the world" [p. 191]. Is this a fair and
accurate statement? What historical examples support it? What
improvements in humane feeling and social justice has the
Mormon church opposed?
8%. How are mainstream and fundamentalist Mormons likely to
react to Krakauer's book?
9. Much of Under the Banner of Heaven explores the tensions
between freedom of religion and governmental authority. How
should these tensions be resolved? How can the state allow
religious freedom to those who place obedience to God's will
above obedience to secular laws?
10. Joseph Smith called himself "a second Mohammed," and
Krakauer quotes George Arbaugh who suggests that
Mormonism's "aggressive theocratic claims, political aspirations,
and use of force, make it akin to Islam" [p. 102]. What other
similarities exist between the Mormon and Islamic faiths?
11. How should Joseph Smith be understood: as a delusional
narcissist, a con man, or "an authentic religious genius" [p. 55],
as Harold Bloom claims?
i2. Krakauer suggests that much of John Wesley Powell's book,
The Exploration of the Colorado River and Its Canyons,
particularly his account of his dealings with the Shivwit Indians,
Should be regarded with a "healthy dose of skepticism," and that
it embellishes and omits important facts [p. 245]. Is Krakauer
himself a trustworthy guide to the events he describes in Under
the Banner of Heaven? Are his writing and his judgments fair
and reasonable? What makes them so?
13. What patterns emerge from looking at Mormon history? What
do events like the Mountain Meadow massacre and the violence
between Mormons and gentiles in Missouri and Illinois suggest
about the nature of Mormonism? Have Mormons been more often
the perpetrators or the victims of violence?
14. At the very end of the book, former Mormon fundamentalist
DeLoy Bateman says that while the Mormon fundamentalists who
live within Colorado City may be happier than those who live
outside it, he believes that "some things in life are more important
than being happy. Like being free to think for yourself" [p. 334].
Why does Krakauer end the book this way? In what ways are
Mormons not free to think for themselves? Is such freedom more
important than happiness?
top of the page
Critical Praise a
"Powerfully illuminating. . . . Almost every section of
the book is fascinating in its own right, and together
the chapters make a rich picture. .. . An arresting
http://64.233.161.104/search?q=cache:68fJUe8JuyQJ -www.readinggroupguides.com/gul... 11/26/2004
ReadingGroupGuides.com - Under the Banner of Heaven by Jon Krakauer Page 4 of 4
portrait of depravity."
~The New York Times Book Review
“Well-researched and evenhanded. . . . Thought-
provoking."
—USA Today
"Illuminating .. . provocative... . Krakauer is an
adept chronicler of extremists [and] the tour guide of
choice for secular quests."
—Los Angeles Times Book Review
“"Scrupulously reported and written with Krakauer's
usual exacting flair, Under the Banner of Heaven is
both illuminating and thrilling. It is also the creepiest
book anyone has written in a long time—and that's
meant as the highest possible praise."
— Newsweek
top of the page
Courtesy of Anchor
Privacy Policy | Contact Us | Advertising | About Us
http://64.233.161.104/search?q=cache:68fJUe8JuyQJ -www.readinggroupguides.com/gui... 11/26/2004
Question 1- felony murder
Defendant Eileen gave birth to a son, Randell, on March 10, 1983. He was released from
the hospital into his mother's care five days later, weighing five pounds and in good
health. On April 21, Eileen brought Randell to the hospital where he was pronounced
dead. The child was emaciated and had bruises on his head, abdomen and buttocks.
Randell weighed only four pounds and three ounces on April 21, although according to
expert testimony he should have weighed around seven pounds, five ounces. The
pathologist who performed an autopsy on the child concluded Randell exhibited weight
loss and fat atrophy along with evidence of abuse, including fracture of the left clavicle
and a skull fracture.
On the day Randell died Eileen gave a written statement to the police in which she
admitted jerking the child by the neck because he wouldn't stop crying, shaking him, and
hitting him on his face and chest; she also spoke of being under tremendous pressure
living alone and trying to raise two children. Four days later she gave the police another
written statement in which she admitted feeling a great deal of anger and stress, hitting
Randell on the right side of his head with her fist, and later hitting him in the chest.
Following a preliminary hearing, defendant was bound over on charges of first-degree
murder, abuse of a child, and aggravated battery. Prior to trial the State dismissed the
charge of aggravated battery.
At the time, the state statute read:
Murder in the first degree is the killing of a human being committed maliciously,
willfully, deliberately and with premeditation or committed in the perpetration or attempt
to perpetrate any felony."
Should Eileen be convicted of First degree murder?
Model Answer: To invoke the felony murder rule there must be proof a homicide was
committed 1) in the perpetration of or an attempt to perpetrate a felony and 2) that the
»
collateral felony was one inherently dangerous to human life. In this case, Eileen admits
to committing felony of abuse of a child. It is logical that any assault on a child
Randell’s age would be inherently dangerous.
However, the felony murder doctrine is not applicable when the other felony is an
integral part of the homicide. In such a case the collateral felony is said to have merged
with the homicide and results in only one offense. In order to make this determination,
most courts have tried to answer two questions: 1) whether all the elements of the felony
are present in the homicide and 2) whether the felony is a lesser included offense of the
homicide.
In this case, it could be argued that a charge of abuse of a child is not a lesser included
offense of the homicide, and therefore the underlying felony does not merge. However,
the defense should argue that since most states have adopted a more liberal merger
doctrine that the Eileen’s actions are more consistent with assault that inadvertently led to
the death of the victim, something more consistent with a charge of manslaughter or
second degree murder.
Held: The charge of abuse of a child did not merge into the homicide.
Problem and answer from State v. Brown, 696 P.2d 954, Supreme Court of
Kansas,]985. (Overruled three years later in favor of felony-merger rule)
.
*START*START*START*START*START*START*START*START*START*START*START*
4110440-POWELL, JEFFREY
NUMBER OF REQUESTS IN GROUP:
APPROXIMATE NUMBER OF LINES:
APPROXIMATE NUMBER OF PAGES:
NUMBER OF DOCUMENTS TO BE DELIVERED:
DATE AND TIME PRINTING STARTED:
270
10/13/2004
10:53:10 am (Central)
CLIENT IDENTIFIER: JEFFREYPOWELL
DATE OF REQUEST: 10/13/2004
THE CURRENT DATABASE IS. KS-CS
696 P.2d 954
236 Kan. 800, 696 P.2d 954
(Cite as: 236 Kan. 800, 696 P.2d 954)
< KeyCite Red Flag >
Supreme Court of Kansas.
STATE of Kansas, Plaintiff-Appellant,
V.
Eileen M. BROWN, Defendant-Appellee.
STATE of Kansas, Plaintiff-Appellee,
V.
Eileen M. BROWN, Defendant-Appellant.
Nos. 56525, 56997.
March 2, 1985.
Defendant was convicted in the Barton District
Court, William J. Laughlin, J., of involuntary
manslaughter and child abuse, and she appealed.
The Supreme Court, Holmes, J., held that: (1) State
was not entitled to appeal from denial of its motion
in limine to exclude certain testimony; (2) charge of
child abuse did not merge into charge of felony-
murder; and (3) defendant’s confession was
adequately corroborated.
Order accordingly.
West Headnotes
[1] Criminal Law €= 1024(10)
110k1024(10) Most Cited Cases
(Formerly 110k1010)
Appeals on questions reserved by prosecution will
not be entertained merely to demonstrate whether
errors have been committed by trial court; such
questions must be of statewide interest and answers
Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works.
FOR EDUCATIONAL USE ONLY
Page 1
thereto must be vital to correct and uniform
administration of criminal law.
[2] Criminal Law @= 1134(3)
110k1134(3) Most Cited Cases
Prosecution’s challenge to trial court’s ruling
denying prosecution’s motion in limine, in trial of
mother arising out of death of infant child,
requesting exclusion of evidence of violent acts of
victim’s father against other persons would not be
entertained on appeal, since prosecution was merely
attacking adverse trial court decision on evidentiary
question that was adequately covered by evidentiary
statutes and myriad of cases annotated thereunder.
Rules of Evid., K.S.A. 60-445 to 60-448, 60-455.
[3] Homicide @€= 587
203k587 Most Cited Cases
(Formerly 203k18(1))
[3] Homicide €= 588
203k588 Most Cited Cases
(Formerly 203k18(1))
To invoke felony-murder rule there must be proof
that homicide was committed in perpetration of or in
attempt to perpetrate felony and that collateral
felony was one inherently dangerous to human life.
En
- een een at
[4] Criminal Law €= 30
110k30 Most Cited Cases
[4] Homicide €= 590
203k590 Most Cited Cases
Westlaw.
696 P.2d 954
(Cite as: 236 Kan. 800, 696 P.2d 954)
(Formerly 203k18(1))
Felony-murder doctrine is not applicable when other
felony is integral part of homicide; in such case,
collateral felony is said to have merged with
homicide and results in only one offense.
[5] Criminal Law @= 30
110k30 Most Cited Cases
With respect to felony-murder doctrine, proper test
for determining whether underlying felony merges
into homicide is whether all elements of felony are
present in homicide and whether felony is lesser
included offense of the homicide.
[6] Criminal Law @= 30
110k30 Most Cited Cases
Charge of child abuse did not merge into charge of
felony-murder. K.S.A. 21-3401, 21-3609.
[7] Criminal Law @= 534(1)
110k534(1) Most Cited Cases
[7] Criminal Law @= 535(2)
110k535(2) Most Cited Cases
Uncorroborated extrajudicial confession _is
insufficient to sustain conviction; however, any
material facts, including corpus delicti itself, may be
proved by direct testimony or by indirect or
circumstantial evidence or combination of both; no
exclusive mode of proof of corpus delicti is
prescribed by law.
[8] Criminal Law @= 534(2)
110k534(2) Most Cited Cases
In prosecution for involuntary manslaughter and
child abuse, defendant’s confession was
corroborated by adequate circumstantial evidence
showing excessive neglect and abuse of victim,
including testimony of pathologist, pathologist’s
report, and photographs of victim’s body.
*800 **955 Syllabus by the Court
1. Appeals on questions reserved by the prosecution
will not be entertained merely to demonstrate
whether or not errors have been committed by the
trial court. Such questions must be of statewide
interest and answers thereto must be vital to a
FOR EDUCATIONAL USE ONLY Page 2
correct and uniform administration of the criminal
law.
2. To invoke the felony murder rule there must be
proof a homicide was committed in the perpetration
of or an attempt to perpetrate a felony and that the
collateral felony was one inherently dangerous to
human life.
3. The felony murder doctrine is not applicable
when the other felony is an integral part of the
homicide. In such a case the collateral felony is
said to have merged with the homicide and results in
only one offense.
4. The proper test for determining whether an
underlying felony merges into a homicide is whether
all the elements of the felony are present in the
homicide and whether the felony is a lesser included
offense of the homicide. Following State v.
Rueckert, 221 Kan. 727, Syl. § 6, 561 P.2d 850
(1977).
5. An uncorroborated extrajudicial confession is
insufficient to sustain a conviction. However, any
material facts, including the corpus delicti itself,
may be proved by direct testimony or by indirect or
circumstantial evidence or a combination of both.
No exclusive mode of proof of the corpus delicti is
prescribed by the law.
' Joel B. Jackson, Great Bend, argued the cause and
was on the briefs, for defendant.
Deborah Wilkinson, Asst. Co. Atty., argued the
cause and Robert T. Stephan, Atty. Gen., was with
her on the briefs, for plaintiff.
*801 HOLMES, Justice:
These consolidated appeals arise from defendant’s
conviction of involuntary manslaughter (K.S.A.
1984 Supp. 21-3404) and child abuse (K.S.A. 21-
3609). The State appeals in Case No. 56,525 on a
question reserved pursuant to K.S.A. 22-3602(b)(3)
and the defendant appeals in Case No. 56,997 from
alleged erroneous trial court rulings.
The facts giving rise to the charges are not seriously
disputed. Defendant Eileen Brown gave birth to a
son, Randell Brown, on March 10, 1983. He was
released from the hospital into his mother’s care five
Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works.
696 P.2d 954
(Cite as: 236 Kan. 800, *801, 696 P.2d 954, **955)
days later, weighing five pounds and in good health.
On April 21, 1983, defendant brought Randell
Brown to the hospital where he was pronounced
dead. The child was emaciated and had bruises on
his head, abdomen and buttocks. Randell weighed
only four pounds and three ounces on April 21,
although according to expert testimony he should
have weighed around seven pounds, five ounces.
The pathologist who performed an autopsy on the
child concluded Randell exhibited:
"1. Neglect with weight loss and fat atrophy.
"2. Evidence of abuse with healing fracture of left
clavicle [shoulder], abdominal bruise and right
parietal skull fracture with scalp hematoma.
"3. Cerebral hematomas...."
On the day Randell died Eileen Brown gave a
written statement to the police in which she admitted
jerking the child by the neck because he wouldn’t
stop crying, shaking him, and hitting him on his
face and chest; she also spoke of being under
tremendous pressure living alone and trying to raise
two children. Four days later she gave the police
another written statement in which she admitted
feeling a great deal of anger and stress, hitting
Randell on the right side of his head with her fist,
and **956 later hitting him in the chest. Following a
preliminary hearing, defendant was bound over on
charges of first-degree murder, abuse of a child, and
aggravated battery. Prior to trial the State
dismissed the charge of aggravated battery. We
will consider each appeal separately.
Case No. 56,525
Prior to trial the State filed a motion in limine
requesting exclusion of any and all evidence tending
to show that an individual other than defendant
committed the crimes charged. The State sought to
prohibit defendant and her attorney from eliciting
testimony concerning the character or reputation of
*802 Randell’s father, Jack Broce, or acts of
physical violence by Broce against persons other
than Randell Brown. The court denied the motion
on the grounds defendant pled not guilty and the
medical reports did not foreclose the possibility
someone other than defendant committed the crimes.
The motion was later renewed and again denied.
At trial defendant presented testimony of prior
assaults by Jack Broce on individuals other than
Randall Brown. The jury heard evidence of
specific incidents in which Broce slapped or struck
FOR EDUCATIONAL USE ONLY Page 3
defendant; incidents during which Broce slapped or
struck Gilbert Brown, Randell’s two-year-old
brother; and an incident in which Broce hurt his
sister by slamming her against some _ kitchen
cabinets. However, no witness, including the
defendant, testified that Broce had ever hit or
otherwise abused Randell Brown. There was no
evidence that Broce had a general reputation for
violence. There was no evidence of any kind that
the victim’s death might have been caused or
contributed to by anyone other than the defendant.
The State argues evidence of specific acts of
violence by Broce was inadmissible and was used by
the defense solely to raise the inference in the minds
of the jurors that Broce, rather than defendant, was
responsible for the abuse and ultimate death of
Randell Brown.
[1][2] In State v. Martin, 232 Kan. 778, 780, 658
P.2d 1024 (1983), we stated:
"[A]ppeals on questions reserved by the
prosecution will not be entertained merely to
demonstrate whether or not errors have been
committed by the trial court. Such questions must
be of statewide interest and answers thereto must be
vital to a correct and uniform administration of the
criminal law."
The appeal by the State merely attacks an adverse
trial court decision on an evidentiary question which
is adequately covered by our evidentiary statutes
K.S.A. 60-445 through 60-448 and 60-455 and the
myriad of cases annotated thereunder. It does not
meet the standard of Martin. See also State v.
Lamkin, 229 Kan. 104, Syl. § 2, 621 P.2d 995
(1981).
The appeal in Case No. 56,525 is dismissed.
Case No. 56,997
Defendant, Eileen M. Brown, was tried on one
count of first-degree felony murder and one count of
abuse of a child. The court gave the full range of
instructions on lesser included offenses of murder
and the jury found defendant guilty of involuntary
*803 manslaughter and abuse of a child. For her
first point on appeal defendant contends that the trial
court erred in denying her motion to dismiss on
grounds there was no independent collateral felony
to support the felony murder charge. It is
defendant’s contention that the child abuse charge
merged in the charge of felony murder and, having
done so, no collateral felony remained to support the
Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works.
Westlaw.
696 P.2d 954
felony murder charge. We agree with the trial
court’s ruling.
K.S.A. 21-3609, abuse of a child, was amended in
1984 but the amendment only changed the
classification of the crime from a class E felony to a
class D felony. The elements of the offense, which
were not affected by the 1984 amendment, read:
"Abuse of a child is willfully torturing, cruelly
beating or inflicting cruel and inhuman corporal
punishment upon any child under the age of
eighteen (18) years."
**Q57 K.S.A. 21-3401, first-degree murder, reads:
"Murder in the first degree is the killing of a
human being committed maliciously, willfully,
deliberately and with premeditation or committed
in the perpetration or attempt to perpetrate any
felony."
[3][4][5][6] To invoke the felony murder rule there
must be proof a homicide was committed in the
perpetration of or an attempt to perpetrate a felony
and that the collateral felony was one inherently
dangerous to human life. State v. Lashley, 233
Kan. 620, 631, 664 P.2d 1358 (1983). However,
the felony murder doctrine is not applicable when
the other felony is an integral part of the homicide.
State v. Clark, 204 Kan. 38, Syl. § 1, 460 P.2d 586
(1969). In such a case the collateral felony is said
to have merged with the homicide and results in
only one offense. In order to make this
determination, we have held:
"The proper test for determining whether an
underlying felony merges into a homicide is
whether all the elements of the felony are present in
the homicide and whether the felony is a lesser
included offense of the homicide." State v.
Rueckert, 221 Kan. 727, Syl. § 6, 561 P.2d 850
(1977).
It is obvious from even a cursory reading of the
statutes that a charge of abuse of a child does not
meet the Rueckert test for merger into a charge of
felony first-degree murder.
We are not called upon, and do not here decide,
whether a single instance of assaultive conduct, as
opposed to a series of incidents evidencing extensive
and continuing abuse or neglect, *804 would
support a charge of felony murder. See People v.
Smith, 35 Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d
886 (1984), and Massie v. State, 553 P.2d 186
FOR EDUCATIONAL USE ONLY Page 4
(Cite as: 236 Kan. 800, *803, 696 P.2d 954, **956)
(Okla.Crim.1976). | Cases supporting the doctrine
that child abuse constitutes a collateral felony that
will support a charge of felony murder include
People v. Northrop, 132 Cal.App.3d 1027, 182
Cal.Rptr. 197 (1982); People v. Roark, 643 P.2d
756 (Colo.1982); Holt v. State, 247 Ga. 648, 278
S.E.2d 390 (1981); Miller v. State, 379 So.2d 421
(Fla.Dist.App.1980); State v. O’Blasney, 297
N.W.2d 797 (S.D.1980).
We hold that the charge of abuse of a child did not
merge into the homicide and the trial court did not
err in denying defendant’s motions for dismissal.
Defendant’s last point on appeal is that the trial
court erred in denying her motion for judgment of
acquittal. That motion was made on the grounds
the State had failed to corroborate defendant’s
confession with adequate evidence, and _ the
uncorroborated confession was inadequate to support
the charges. Defendant had made similar motions at
various other stages of the proceedings, all of which
were denied.
[7] In support of her claim, defendant relies entirely
on State v. Tillery, 227 Kan. 342, 606 P.2d 1031
(1980), where we held:
"An uncorroborated extrajudicial confession is
insufficient to sustain a conviction." Syl. § 2.
However, in Jillery we also held:
"Any material facts, including the corpus delicti
itself, may be proved by direct testimony or by
indirect or circumstantial evidence or a
combination of both. No exclusive mode of proof
of the corpus delicti is prescribed by the law."
Syl. { 3.
[8] In the instant case we need not dwell at length
upon the sordid circumstantial evidence showing
excessive neglect and abuse of the victim. The
testimony of the pathologist, his report and
photographs of the small victim’s body adequately
corroborate the defendant’s various statements and
admissions. The point is totally without merit.
The appeal of the State in Case No. 56,525 is
dismissed and the judgment in Case No. 56,997 is
affirmed.
236 Kan. 800, 696 P.2d 954
END OF DOCUMENT
Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works.
4110440 - POWELL, JEFFREY
* END * END * END* END* END * END * END* END* END *
