Tennessee does not allow felony murder when a co-perpetrator is killed
TENNESSEE — Not allowing a felony murder charge when a co-perpetrator is killed is established in case law.
39-13-202. First degree murder.
(a) First degree murder is:
(1) A premeditated and intentional killing of another;
(2) A killing of another committed in the perpetration of or attempt to perpetrate any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child neglect, rape of a child, aggravated rape of a child or aircraft piracy; or
CASE LAW — State v. Severs
The statute provides that the murder be in the “perpetration” or “attempted perpetration” of, among other things, “a larceny.” In this instance, the death resulted from the effort to thwart rather than to perpetrate the felony. The same conclusion was reached in People v. Washington, 62 Cal.2d 777, 44 Cal. Rptr. 442, 402 P.2d 130 (1965), in the interpretation of an identical statute to that enacted by this state.
Any extension of the meaning of the statute to the current facts would be in derogation of the common law definition of felony-murder.
Similarly, the theory of proximate cause in relation to felony-murder is limited to acts committed by the accused or his accomplices which actually produce the death. This interpretation is not only consistent with the traditional concepts of felony-murder but constitutes the only explanation for this state’s lack of historical precedent for the proposition suggested by the state. The death of Moore was collateral to, not in furtherance of, the unlawful act of the defendants.
In conclusion, it appears that extension of the felony-murder rule beyond its common law limitation to acts by the felon and his accomplice, to include the lethal actions of those not acting in pursuance of the felonious scheme, is an appropriate action for the legislature … not the courts. The “language of the statute does not compel it and … is entirely compatible with the traditional limitations of the rule.” Canola 374 A.2d at 30.
The death of the co-perpetrator, when a justifiable homicide, is not within the purview of the statute.
Link to the Law — HERE
Link to the Case Law — HERE