The allegation that the homicide occurred in the perpetration of a felony, does not charge the accused with the commission of the felony referred to, nor make it an offense included in the murder charge; it merely characterizes the murder as to degree. People v. Lytton, 257 N.Y. 310, 178 N.E. 290, 292, 79 A.L.R. 503; People ex rel. Santangelo v. Tutuska, 19 Misc.2d 308, 192 N.Y.S.2d 350, 355, affirmed 11 A.D.2d 906, 205 N.Y.S.2d 1006. Robbery is defined by I.C. ยง 18-6501 as follows:
However, other jurisdictions have held that the felony murder and the underlying felony do not merge, and that successive trials or multiple punishment for both are permissible. State v. Clayton, 109 Ariz. 587, 514 P.2d 720 (1973); Turner v. State, 248 Ark. 367, 452 S.W.2d 317 (1970), reversed on other grounds, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972); Slater v. State, 316 So.2d 539 (Fla. 1975); State v. Hall, 86 Idaho 63, 383 P.2d 602 (1963); State v. Chambers, 524 S.W.2d 826 (Mo. 1975), cert. denied, 423 U.S. 1058, 96 S.Ct. 794, 46 L.Ed.2d 649 (1976); Carmody v. Seventh Judicial District Court, 81 Nev. 83, 398 P.2d 706 (1965); People v. Tutuska, 19 Misc.2d 308, 192 N.Y.S.2d 350 (1959); Harris v. State, 555 P.2d 76 (Okla. Crim. 1976); Commonwealth v. Smith, 452 Pa. 1, 304 A.2d 456, cert. denied, 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d 483 (1973); State v. Briggs, 533 S.W.2d 290 (Tenn. 1976); State v. Barton, 5 Wn.2d 234, 105 P.2d 63 (1940).
Nor is the felony "necessarily included" in the homicide within the meaning of the applicable (permissible-verdict) statute (Code Crim. Pro. ยง 445) the crimes being "substantively and generically separate and distinct offenses" ( People v. Nichols, 230 N.Y. 221, 225-226). Upon a trial for the murder then, the accused is not deemed to have been put in jeopardy of conviction of the collateral felony ( People ex rel. Santangelo v. Tutuska, 19 Misc.2d 308, 313, affd. 11 A.D.2d 906) notwithstanding legitimate bases in the evidence ( People v. Mussenden, 308 N.Y. 558, 563) for findings that while all of a number of criminal actors were guilty of the felony, the supposedly fatal violence was not shown to have been the cause of the death (Code Crim. Pro., ยง 444) and in any event, only one of the felons was concerned, as principal (Penal Law, ยง 2), in the assault designed to kill the felony victim ( People ex rel. Di Lapo v. Tutuska, 27 Misc.2d 544, affd. 11 A.D.2d 906, affd. 9 N.Y.2d 910, upon the opinion at Special Term), the actual assailant's violence being only "incidentally coincident with the felony" and not in its furtherance ( People v. Wood, 8 N.Y.2d 48, 51, supra). It may also be, that a murder defendant is not deemed to have been in danger of conviction of the felony where his counsel, at the trial, renounces any right to have the jury consider the client's guilt of the lesser, predicate crime ( People ex rel. Di Lapo v. Tutuska, 27
It is interesting to note that the same view was taken by the Supreme Court of Erie County, New York. In the case of People v. Tutuska, 192 N.Y.S.2d 350, (affirmed by the New York Court of Appeals) the court said: "The purpose of proving participation in the commission of another felony which leads up to and results in the homicide is entirely different than the one suggested by the defendant.
Some courts have held that the predicate felony is not an "essential element" of felony murder, but is only representative of malice or intent. See State v. Chambers, 524 S.W.2d 826 (Mo. 1975) (underlying felony serves to prove the necessary intent for the murder charge); People v. Tutuska, 19 Misc.2d 308, 192 N.Y.S.2d 350, 357 (1959), aff'd, 11 N.Y.A.D.2d 906, 205 N.Y.S.2d 1006 (1960); see also People v. Lytton, 257 N.Y. 310, 178 N.E. 290 (1931) (Cardozo, J.) (proof of predicate crime is only evidence of felonious intent, it does not displace the intent element itself, and while it characterizes the degree of culpability, it does not change the identity of the crime); cf. People v. Hickam, supra (the element of causing a death during the commission of a felony supplies the mental culpability element for first degree murder). It is also worthy of consideration in this analysis that the first degree assault statute is unlike the first degree murder statute in that a defendant who is convicted of "felony" first degree assault under ยง 18-3-201(1)(d) which he or she has caused during the commission of certain predicate felonies must, according to ยง 18-3-201(2)(d), C.R.S. (1986 Repl. Vol. 8B), be sentenced pursuant to ยง 16-11-309, the crime of violence statute.
The defendant made a motion to dismiss upon the basis that the indictment had not specifically charged the felony underlying the murder, i.e., robbery. The court, citing with approval several cases including Santangelo v. Tutuska . . . [ 19 Misc.2d 308, 192 N.Y.S.2d 350, affirmed 11 A.D.2d 906, 205 N.Y.S.2d 1006] held that in a felony murder case the underlying felony is a substantial and generically separate and disconnected offense. The robbery is a distinct offense and is not part of the crime of homicide nor is it an included crime.
The theory of law is that the intent to commit the underlying felony is transferred to the homicide even though the felon does not intend to cause the death of anyone. See, State v. Briggs, 533 S.W.2d 290 (Tenn. 1976); State v. Hicks, 530 S.W.2d 396 (Mo. App. 1976); People v. Green, 62 Ill.2d 146, 340 N.E.2d 9 (1975, rehearing denied Jan. 22, 1976); and People ex rel. Santangelo v. Tutuska, 19 Misc.2d 308, 192 N.Y.S.2d 350, affirmed 11 A.D.2d 906, 205 N.Y.S.2d 1006. Compare 21 O.S. 1971 ยง 701[ 21-701] and New York Penal Laws of 1909 ยง 1044, repealed by Penal Law ยง 500.05, effective September 1, 1967; now Penal Law ยงยง 125.25, 125.27.
The decision in this State hold that in a felony murder case an underlying felony such as robbery is a substantial and generically separate and disconnected offense. ( People v. Nichols, 230 N.Y. 221, 226; People v. Lytton, 257 N.Y. 310, 314-315; People v. Huter, 184 N.Y. 237, 244; People ex rel. Santangelo v. Tutuska, 19 Misc.2d 308, 316, affd. 11 A.D.2d 906. ) It makes no difference in what county the felony was committed.
The jeopardy is tested accordingly (cf. Green v. United States, 355 U.S. 184, with People v. Ercole, 4 N.Y.2d 617; People ex rel. Di Lapo v. Tutuska, 27 Misc.2d 544, affd. 11 A.D.2d 906, affd. 9 N.Y.2d 910 and People ex rel. Santangelo v. Tutuska, 19 Misc.2d 308, affd. 11 A.D.2d 906 with State v. Cooper, 13 N.J.L. 361, 372, 373, 375). The perspective afforded by these cases does not, of course, facilitate the task but may serve to avoid complicating it further.
on of the offense charged (Code Crim. Pro., ยงยง 700, 332) claiming that he may not be twice tried for the one act of speeding and citing section 6 of article I of the New York State Constitution and section 1938 of the Penal Law in support of his position. Were the defendant here forced to rely solely upon section 6 of article I of the New York Constitution, it would seem that his plea of former judgment of conviction should not be sustained for the elements of proof required to support a conviction under section 1180 (subd. 2, par. [b]) of the Vehicle and Traffic Law differ from the proof required under subdivision 3 of section 1180 ( People v. Skarczewski, 178 Misc. 160, 162-163, affd. 287 N.Y. 826). But the protection afforded a defendant under section 1938 of the Penal Law seems to me to be far broader than the simple double jeopardy protection granted by the Constitution ( People v. Snyder, 241 N.Y. 81; People v. Repola, 280 App. Div. 735, 281 App. Div. 679, affd. 305 N.Y. 740; People ex rel. Santangelo v. Tutuska, 19 Misc.2d 308, affd. 11 A.D.2d 906). The Court of Appeals in a recent case interpretive of section 1938 of the Penal Law stated that "if there were an act which itself violated one statute and was a material element of the violation of another, there would have to be single punishment." ( People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 264; emphasis the court's.)