I was recently working on an indictment for felony murder and came across the statutory language, "commits or 'attempts to commit' an act clearly dangerous to human life that causes the death of an individual." Aside from some next-to-impossible law school hypothetical, can anyone see how you could attempt to commit (but not actually commit) some act the mere attempt of which causes death?
I think this language is designed to apply where there is no conscious disregard of the risk of death and the primary motivation of the defendant’s acts is some offense such as robbery, sexual assault, burglary, arson, kidnapping, or felony escape that nevertheless too often results in a death. Thus, the felony murder doctrine has often been limited to those offenses that are “inherently dangerous” or by their circumstances objectively create a foreseeable risk of death. It would apply primarily where in the course of such underlying offense something foreseeable or natural takes place that brings about death (e.g., the victim dies of a heart attack or takes an evasive, but lethal, action—say the store clerk draws a gun to fire at the robber but instead kills someone else). The defendant’s conduct needs only be a substantial cause of the death. See People v. Stamp, 82 Cal Rptr. 598 and People v. Lowery, 687 N.E.2d 973.
I do not know whether the language chosen by the Texas legislature, “an act . . . that causes . . . death” is the best to convey this principle, but “causes” or causation can certainly be given the meaning described above.
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