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N.M. among states limiting application of murder rule

ALBUQUERQUE, N.M. — The story has been virtually everywhere since New Year’s. An 18-year-old widow and mother in Oklahoma shot and killed an intruder as he and an accomplice broke into her home. Sadly, that alone is not national news in today’s world. Nor is it particularly newsworthy that law-enforcement authorities promptly decided she would not be prosecuted for the shooting.

Oklahoma, like New Mexico and more than two dozen other states, follows what is known as the Castle Doctrine, which provides that one’s home is his castle and he (or she) can use deadly force to defend it. In a few states there is a duty to retreat, if possible, before using deadly force but that is not an issue here. This young mom had acted in self-defense under Oklahoma law. I suspect law enforcement’s decision would be the same here in New Mexico under similar facts.

Instead, the airwaves are abuzz with this story because the burglar had an accomplice who ran off when the shooting occurred but turned himself in shortly thereafter. He is now charged with the murder of his partner-in-crime who was shot by the young widow. That has many people confused. After all, there is no question the accomplice did not shoot his partner. How can he be labeled his murderer? The explanation lies in another Common Law doctrine called the Felony Murder Rule.


“Who so diggeth a pit shall fall therein” – Proverbs 26:27

Originating in England in the 1600s, the Felony Murder Rule provides that any time a death occurs in the commission of a felony, all the participants in the underlying felony may be held equally responsible for the death. The clear public policy is to deter people from committing crimes. That’s why you have heard stories of the getaway driver being convicted of the store clerk’s murder even though he never entered the store, and the murder conviction over a robbery victim’s fatal heart attack even though the robber never touched him.

The common-law Felony Murder Rule has been embodied in formal statutes over time. New Mexico’s version of the doctrine is in Section 30-2-1, NMSA: “Murder in the first degree is the killing of one human being by another … in the commission of or attempt to commit any felony …” Note that felony murder is considered “murder in the first degree,” the same as a purposeful, premeditated killing. Though the statute is broadly stated, New Mexico has followed most other states in limiting its application to cases where the death is an actual and foreseeable result of the felony and the felony itself is considered inherently dangerous. Further, the defendant must have known there was considerable risk of great harm, if not an actual intent to kill. Finally, in sharp contrast to the Oklahoma case, the New Mexico Felony Murder Rule does not apply if the victim kills the defendant’s accomplice. In a 2004 decision, the New Mexico Court of Appeals quoted from a California case in which police shot and killed a robber’s accomplice during a shootout initiated by the robbers. The robber was convicted of his accomplice’s death under the Felony Murder Rule. In reversing that conviction, the California Supreme Court said: “When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery.”

New Mexico joined with most other states in making the defendant’s mental state, real or perceived from the facts, an important part of the analysis. Some legal scholars argue the Felony Murder Rule is unfair and outdated. Some states have dropped the rule entirely and England, where the doctrine originated, gave it up in the late 1950s. Is it still appropriate to convict someone of first-degree murder without direct proof of their premeditated intent to kill? Should a burglar be deemed a murderer if his victim has a shotgun and uses it on an accomplice? It appears Oklahoma says “yes” while New Mexico would say “no.” You can “Judge for Yourself.”

Alan M. Malott is a judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified civil trial specialist. If you have questions, send them to Judge Malott, P.O. Box 8305, Albuquerque, NM 87198 or email to: alan@malottlaw.com. Opinions expressed here are solely those of Judge Malott individually and not those of the court.

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