What Is Felony Murder?

Linda Epping, 8, was afflicted with a rare, virulent form of cancer. Specialists said that removal of her left eye and all surrounding tissue was the only way to save her life. After her frightened parents heard that news in Los Angeles in 1961, they were understandably interested, they said, when Chiropractor Marvin Phillips declared: "I can cure your child without surgery, absolutely."

For 23 days, Dr. Phillips plied the child with weird substances, including massive doses of desiccated ox bile and extract of beef eye. Four months later, Linda was dead of cancer. When Dr. Phillips submitted a bill for $739, the Eppings charged him with grand theft by false pretenses. Appalled at what he viewed as the first recorded "murder by words," the prosecutor switched the grand-theft charge to murder on the ground that Phillips caused a death while committing a felony (defrauding the Eppings). After a three-week trial, the jury convicted the doctor of second-degree murder.

With painstaking loyalty to the law, the California Supreme Court has just reversed the doctor's conviction, "solely on the ground that the trial court erred in giving a felony-murder instruction." While the record may have contained sufficient evidence to support a conviction of second-degree murder, the court was unable to tell whether the jury had actually found that Phillips acted "in conscious disregard for life," a necessary element of the crime. Reason: the prosecutor's felony-murder theory.

Applying that theory, the trial judge instructed the jury that a person who commits a felony is automatically liable for any death occurring in the course of that felony. So far, so good. But in California, the felony-murder rule applies only to felonies that are themselves "inherently dangerous to life." And grand theft, the felony charged against Dr. Phillips, is no such inherently dangerous crime. As a result, the high court was duty bound to reverse the conviction.

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