Murder is the unlawful killing of another human being under certain circumstances.  Malice murder is the killing of another with malice aforethought.  It is what most people think of when they think about murder.  Georgia law allows for a conviction for murder in two other circumstances without proof of malice: (1) when the person's commission of a felony causes the death of another or (2) when the commission of cruelty to children in the second degree causes the death of another human being.  These are two kinds of felony murder.  Malice murder and felony murder are punishable the same except that felony murder is not eligible for the death penalty.

Setting aside the special case of cruelty to children second degree, there are a number of rules associated with felony murder in Georgia.

Underlying Felony Must be Inherently Dangerous

Not all felonies will qualify to support a finding of felony murder.  The underlying felony must be inherently dangerous to human life.  This is because criminal laws must have a rational purpose or function, and the only rational function of the felony murder statute would be to deter the commission of a dangerous or life-threatening felony.  

Some felonies like aggravated assault are dangerous per se.  By their very circumstances they create a foreseeable risk of death.  Armed robbery, felony fleeing are other examples of dangerous per se felonies.

Other felonies may create a foreseeable risk of death depending on how they were committed.  Certain weapons and drug charges will fall into that category.  

There is no definitive listing of the underlying felonies that will qualify.  Presumably, an offense like false statement or forgery or computer theft would not qualify.  But, on a case by case basis, a prosecutor may try to make out a case that a particular felony is inherently dangerous because of the way it was committed.

Proximate Cause Must Be Shown

When the statutory and the case law says that the underlying felony caused the death of another, it always means that the felony must be the proximate cause of that death.  Put another way, the death must be a probable and natural consequence of the criminal conduct.  The death must also happen in a way that was a reasonably foreseeable result of the crime. An intervening cause may break the chain of causation set in motion by the initial crime.  Intervening causes which are a reasonably foreseeable consequence of the initial crime will not break the chain.

In the Commission of the Crime

There is a third requirement.  The death must be caused in the commission of the underlying felony. This looks to whether the cause of death was close enough in time and circumstances to the underlying felony.  It is slightly different from proximate cause. Courts will say that the predicate felony must be at least concurrent with the death and be a part of it in an actual or material sense. The technical completion of the crime does not always close the window of liability for the death.  

These are very fact-specific determinations which often require a trial to determine.  One example would be that a burglar fleeing the scene of that crime who then strikes another car and causes the death of a person in that other car may be prosecuted for felony murder. On the other hand, where the defendant engaged in a fight with the victim inside a nightclub, the fighting stopped, the victim went outside and was there and then shot by a fellow gang member of the defendant, that death did not occur in the commission of the original aggravated assault inside the nightclub.  

Drug Possession and Distribution as Predicate Felonies

There are a number of circumstances where prosecutors and law enforcement may pursue deaths caused by a drug or substance overdose as felony murders.  Not all of these efforts will be successful, but it will very much be on a case-by-case basis.  Some of these cases may be where the defendant distributed the substance to the defendant on which the  recipient overdosed.  Others have involved where children or vulnerable people in the household of the defendant have come in contact with the substance.

Conclusion

If you or someone you care about is charged with felony murder, an experienced criminal defense attorney who can break down the facts and the law applicable to their specific case is an absolute necessity.  At that time, Black Law Offices stands ready to be that criminal defense lawyer.