merger of felony and felony murder Forum

[leeyatong]

Hi, could you please help me to kick out the confusion of the felony and felony murder? Thanks.

1. I did some MBE questions, and I found in the MBE question for criminal law, when there are felony and felony murder, and Q is what crimes can be convicted? the felony and felony murder, and there is no merger.

2. however, when I did the MBE questions for criminal procedure, there are both felony and felony murder, the Q is with respect to double jeopardy, the answer is the D may not receive the concurrent sentences for rape and felony murder (the felony is rape), however the court could still impose concurrent sentences for rape and felony murder because concurrent sentences are not multiple sentences.

I feel really confused, is there any merger of the felony and felony murder?

Thanks soooo much.

[Nightcrawler]

Hi, could you please help me to kick out the confusion of the felony and felony murder? Thanks.

1. I did some MBE questions, and I found in the MBE question for criminal law, when there are felony and felony murder, and Q is what crimes can be convicted? the felony and felony murder, and there is no merger.

2. however, when I did the MBE questions for criminal procedure, there are both felony and felony murder, the Q is with respect to double jeopardy, the answer is the D may not receive the concurrent sentences for rape and felony murder (the felony is rape), however the court could still impose concurrent sentences for rape and felony murder because concurrent sentences are not multiple sentences.

I feel really confused, is there any merger of the felony and felony murder?

Thanks soooo much.

It's hard to tell without the question but I think I remember which question you are referring to. If I remember correctly, you are talking about one of the double jeopardy questions of the new NCBE Study Aid, correct? If that's the case, after the D was acquitted for rape in case 1, then the victim died, and then he was tried for felony murder in case 2. In that case, trying him in case 2 would violate the double jeopardy clause because to be guilty of felony murder you need to be guilty of the underlying felony (rape in this case). Which means that case 2 would have to put him in jeopardy again for the rape, which would violate the double jeopardy clause.

Did it help? If it didn't, try to post the question and I'm sure it will be easier to understand.

[leeyatong]

Thanks for your reply, and I post the question now, it is Q29 of Kaplan Bar Review MBE Q and A.

Question 29, (CRIMINAL LAW)

one night, a man and his wife were accosted by the D outside their apartment building. D pulled out a gun and told the man and his wife to take him to their apartment. Upon entering the apartment, the D tied up the man and his wife. the D then stole cash and assorted jewelry from the bedroom, After the D exited the apartment, the man and his wife tried to free themselves from their constraints. as the man was struggling, he suffered a heart attack and died. of which crimes can the D property be found guilty.
a) burglary
b) robbery and burglary
c) robbery and murder
d) burglary, robbery and murder.

The answer is d.

THE below two are Qs under criminal procedure part
Q47 (criminal procedure law)
a D was arrested and indicted separately for the crimes of robbery, rape and felony murder with the underling felony being the rape, with respect to double jeopardy, which of the following is right?

The right answer is c) the D may be tried for the two separate offense of robbery and felony murder and may be convicted of both, with the robbery sentence running consecutively with concurrent sentences for the felony murder and rape.

Q48 (criminal procedure)
a man broke into a house at night with the intent to steal a stereo, although he believed that the homeowner not at home, he was in fact asleep in an upstairs bedroom, the homeowner awakened by the noise downstairs, and downstairs. the man attacked the homeowner, tied him up with rope, and departed with the stereo system. after he left, the homeowner choked to death from the ropes while trying to free himself, the man was charged with burglary, but was acquitted, thereafter, the man was prosecuted for felony murder with burglary as the underlying felony. with respect to the man's criminal liability for felony murder, which of the following is right?
The right answer is c) the burglary acquittal precludes prosecution for felony murder under the doctrine of double jeopardy.

so, why Q29 means there is no merger of felony and felony murder, but other 2 implied there are merger of felony and felony murder? Thanks so much.

[Nightcrawler]

Thanks for your reply, and I post the question now, it is Q29 of Kaplan Bar Review MBE Q and A.

Question 29, (CRIMINAL LAW)

one night, a man and his wife were accosted by the D outside their apartment building. D pulled out a gun and told the man and his wife to take him to their apartment. Upon entering the apartment, the D tied up the man and his wife. the D then stole cash and assorted jewelry from the bedroom, After the D exited the apartment, the man and his wife tried to free themselves from their constraints. as the man was struggling, he suffered a heart attack and died. of which crimes can the D property be found guilty.
a) burglary
b) robbery and burglary
c) robbery and murder
d) burglary, robbery and murder.

The answer is d.

THE below two are Qs under criminal procedure part
Q47 (criminal procedure law)
a D was arrested and indicted separately for the crimes of robbery, rape and felony murder with the underling felony being the rape, with respect to double jeopardy, which of the following is right?

The right answer is c) the D may be tried for the two separate offense of robbery and felony murder and may be convicted of both, with the robbery sentence running consecutively with concurrent sentences for the felony murder and rape.

Q48 (criminal procedure)
a man broke into a house at night with the intent to steal a stereo, although he believed that the homeowner not at home, he was in fact asleep in an upstairs bedroom, the homeowner awakened by the noise downstairs, and downstairs. the man attacked the homeowner, tied him up with rope, and departed with the stereo system. after he left, the homeowner choked to death from the ropes while trying to free himself, the man was charged with burglary, but was acquitted, thereafter, the man was prosecuted for felony murder with burglary as the underlying felony. with respect to the man's criminal liability for felony murder, which of the following is right?
The right answer is c) the burglary acquittal precludes prosecution for felony murder under the doctrine of double jeopardy.

so, why Q29 means there is no merger of felony and felony murder, but other 2 implied there are merger of felony and felony murder? Thanks so much.

First of all, Q29 doesn't talk about felony murder but simply murder. The mens rea could be something else rather than felony murder. Also, answer D doesn't specify that the D can be convicted of all three offenses (which means that the D may be found guilty of any of those three offenses.

For Q47 and Q48, I guess that what I said in my previous comment explains the reasoning of the correct answer. Does that make sense now?

[leeyatong]

Thanks for the clear, and I think it really makes sense, so the felony and felony murder merger, am I right? Thanks so much.

[Nightcrawler]

Thanks for the clear, and I think it really makes sense, so the felony and felony murder merger, am I right? Thanks so much.

No, the felony and the underlying felony generally don't merge, if that's what you are asking. I mean, if you commit a robbery and in the meanwhile you shoot and kill someone you will be convicted of both murder and robbery. Two crimes merge only when one crime has all the elements plus more of the other crime. For example, assault would merge into battery because battery is "harmful or offensive contact" and assault is "putting V in reasonable apprehension of immediate harmful or offensive contact". Regarding felony murder, if we consider that it can happen with battery, arson, rape, robbery, and kidnapping, I guess that the murder charge may merge only with the battery. Not sure though honestly lol. I think I confused myself at this point

[leeyatong]

sorry, I feel confused again now.....

[nixy]

The second question isn't about merger. It's just that one element of felony murder is that the underlying felony occurred. If a jury found the def not guilty of burglary, he can't be tried for felony murder when the victim dies, because a trial for felony murder on those facts would require trying him for the burglary over again.

To compare with the first question, in the first question, the def could be tried and convicted of both robbery and felony murder. In the second question, the def *could* be tried for both burglary and felony murder, and *could* be convicted of both if a jury found the def guilty of burglary. But if the prosecution initially only charges the def with burglary and the trial is only for burglary, and the def is acquitted, the prosecution can't go back and try the def for a crime (felony murder) that requires that the def committed another crime (burglary), when the def has already been acquitted of that other crime. (This is why it's a procedure question, because the answer turns on what the def's charged with and when, rather than on the facts of what the def did.)

[scard]

the way these answer choices are presented D is right by process of elimination..

we know a murder occurred for sure

so that leaves only C or D as our two only choices... and we know a burglary occurred for sure so that eliminates C.... so it has to be D. don't even need to know the rules of merger as the only possible answer that has any chance of being correct is D.

[Ohnt]

Thanks for your reply, and I post the question now, it is Q29 of Kaplan Bar Review MBE Q and A.

Question 29, (CRIMINAL LAW)

one night, a man and his wife were accosted by the D outside their apartment building. D pulled out a gun and told the man and his wife to take him to their apartment. Upon entering the apartment, the D tied up the man and his wife. the D then stole cash and assorted jewelry from the bedroom, After the D exited the apartment, the man and his wife tried to free themselves from their constraints. as the man was struggling, he suffered a heart attack and died. of which crimes can the D property be found guilty.
a) burglary
b) robbery and burglary
c) robbery and murder
d) burglary, robbery and murder.

The answer is d.

THE below two are Qs under criminal procedure part
Q47 (criminal procedure law)
a D was arrested and indicted separately for the crimes of robbery, rape and felony murder with the underling felony being the rape, with respect to double jeopardy, which of the following is right?

The right answer is c) the D may be tried for the two separate offense of robbery and felony murder and may be convicted of both, with the robbery sentence running consecutively with concurrent sentences for the felony murder and rape.

Q48 (criminal procedure)
a man broke into a house at night with the intent to steal a stereo, although he believed that the homeowner not at home, he was in fact asleep in an upstairs bedroom, the homeowner awakened by the noise downstairs, and downstairs. the man attacked the homeowner, tied him up with rope, and departed with the stereo system. after he left, the homeowner choked to death from the ropes while trying to free himself, the man was charged with burglary, but was acquitted, thereafter, the man was prosecuted for felony murder with burglary as the underlying felony. with respect to the man's criminal liability for felony murder, which of the following is right?
The right answer is c) the burglary acquittal precludes prosecution for felony murder under the doctrine of double jeopardy.

so, why Q29 means there is no merger of felony and felony murder, but other 2 implied there are merger of felony and felony murder? Thanks so much.

First of all, Q29 doesn't talk about felony murder but simply murder. The mens rea could be something else rather than felony murder. Also, answer D doesn't specify that the D can be convicted of all three offenses (which means that the D may be found guilty of any of those three offenses.

For Q47 and Q48, I guess that what I said in my previous comment explains the reasoning of the correct answer. Does that make sense now?

burglary, robbery, and murder.

robbery and murder only.

burglary and robbery only.

robbery only.

Answer choice A is correct. Common-law burglary is the breaking and entering of the dwelling house of another at nighttime with the specific intent to commit a felony therein. The defendant is guilty of burglary because he used force to gain entry into the apartment (breaking and entering the dwelling of another) at night with the intent to commit a theft crime. Robbery is larceny from the person or presence of another by force or intimidation. Here, the facts actually state that the defendant forced the wife to open the safe, and the defendant clearly had the intent to steal the necklace. The necklace is considered to be taken from the wife's presence even though it was not on her body because it was within her control. Because the husband's death was caused as a result of the defendant's commission of an inherently dangerous felony (robbery or burglary), he is also guilty of murder under the felony murder rule. Accordingly, answer choices B, C, and D are incorrect because they are incomplete.

[b290]

the way these answer choices are presented D is right by process of elimination..

we know a murder occurred for sure

so that leaves only C or D as our two only choices... and we know a burglary occurred for sure so that eliminates C.... so it has to be D. don't even need to know the rules of merger as the only possible answer that has any chance of being correct is D.

You're right, funny enough, I actually got the same answer by eliminating in the reverse (burglary first). Well done

Answer choice A is correct. Common-law burglary is the breaking and entering of the dwelling house of another at nighttime with the specific intent to commit a felony therein. The defendant is guilty of burglary because he used force to gain entry into the apartment (breaking and entering the dwelling of another) at night with the intent to commit a theft crime. Robbery is larceny from the person or presence of another by force or intimidation. Here, the facts actually state that the defendant forced the wife to open the safe, and the defendant clearly had the intent to steal the necklace. The necklace is considered to be taken from the wife's presence even though it was not on her body because it was within her control. Because the husband's death was caused as a result of the defendant's commission of an inherently dangerous felony (robbery or burglary), he is also guilty of murder under the felony murder rule. Accordingly, answer choices B, C, and D are incorrect because they are incomplete.

Nice RACs. Just wanted to note. Keep up the good work.

My $.02