On October 4, 1975 a man and a woman went inside a boutique. The woman tried on dresses but did not buy any. While the woman was trying on dresses, her boyfriend asked the boutique owner if he could use her bathroom. The man observed that there was a big window in the bathroom that faced a back alley.
Three days later, the lovers parked their car in the back alley with the trunk of their car facing the back window of the bathroom. The woman stayed near their car while her boyfriend entered the store and took clothing items and gave them to his girlfriend who stashed the clothes in the trunk.
A police officer on routine patrol passed through on his cruiser down the back alley and saw the woman; he saw clothes being pushed out of the widow, and the woman stashing the clothes in the trunk. He called for back-up and he saw the woman hide behind the car. The police officer approached and talked to the woman and asked her what she was doing. The police officer did not immediately place her under arrest.
Another police officer arrived because of the call for back-up made by the first police officer. He went to cover the store front. At that time, the woman’s boyfriend came out of the front door. The police officer tried to stop the woman’s boyfriend from escaping but the man shot the police officer with the gun he had in his possession (gun crime). The police officer later died.
The lovers were charged with felony murder, that is, that during the commission of a felony, the crime of murder was also committed. During the trial, the woman asked the trial judge to instruct the jury that if the police officer had already arrested the woman then there could be no felony murder as the burglary had already terminated at the time that the police officer was shot. She also moved that the trial judge instruct the jury to find her not guilty of felony murder if they find that she was already in custody of the police at the time that the police officer was shot.
The woman was convicted of felony murder. There was a finding that she willingly participated and fully involved herself in the burglary. She appealed her conviction but the Appellate Division affirmed the conviction finding that the trial court did not commit any error when it refused to instruct the jury as desired by the defendant.
On further appeal to the Supreme Court, the Court held that a felonious homicide is considered a felony murder by operation of law. This happens when the law transfers the malicious intent for the robbery as also malicious intent for the homicide. Applied to the specific facts of this case, the Court held that when the lady shared the felonious venture with her boyfriend who shot someone with the gun in his possession, she will also share in his liability for felony murder especially when it occurred during the felonious act or immediately while her boyfriend was fleeing from the scene.
The question then of whether or not the woman was already arrested at the time that her boyfriend shot the police officer is relevant and necessary to find if the woman really committed felony murder. The trial judge did not commit any error when it refused to instruct the jury as requested by the defendant such that she should be acquitted for the trial court judge did charge jury to find as a fact if the murder of the police officer was in furtherance of the burglary or of the immediate flight. The trial court judge did not decide that the homicide occurred during the course of the burglary as a matter of law. This matter was left for the jury to decide.
Thus, the case was remanded by the Supreme Court to the trial court for a new trial with the specific mandate that the issue of whether or not the killing of the police officer was committed in furtherance of the burglary or in furtherance of flight from the scene of the burglary.
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