Can Aggravated Battery Be the Underlying Felony In a Felony-Murder Charge ?
In People v. Viser, 62 Ill. 2d 568, 343 N.E.2d 903 (1975), our supreme court addressed whether aggravated battery could be the underlying felony in a felony-murder charge where the aggravated battery was alleged to have been committed against the person who eventually died.
The defendants in Viser had claimed that the indictments against them failed to properly charge murder where they alleged that the defendants had each caused the death of the victim, Hector Jordan, as they were attempting to commit or were committing a forcible felony upon Hector Jordan, namely, aggravated battery. Viser, 62 Ill. 2d at 577.
The defendants argued that the indictments would have been proper only if the indictments had charged that the defendants killed Hector Jordan while committing an aggravated battery upon the surviving victim, Harold Smith. Viser, 62 Ill. 2d at 578.
The supreme court noted that, at common law, any unlawful killing occurring during the commission of any felony was murder. Viser, 62 Ill. 2d at 578.
The court also noted that the Illinois Criminal Code of 1961 (Code) limited the predicate offenses underlying felony murder to "'a forcible felony other than voluntary manslaughter now second degree murder,'" and further noted that aggravated battery was a forcible felony. Viser, 62 Ill. 2d at 578-79, quoting Ill. Rev. Stat. 1973, ch. 38, par. 9-1(a)(3).
The supreme court then noted:
"The merger doctrine relied upon by the defendants appears to have been thought necessary in some jurisdictions in which the offense of murder is divided into degrees:
'As previously shown, at common law, homicide resulting from an assault committed with intent to inflict serious bodily harm was classified as murder.
Consequently there was no confusion between degrees of murder if the same act were punishable as felony-murder as well.
But with the advent of the codified degrees of homicide it became necessary to devise methods of preserving the distinctions between those degrees.' Note, the Doctrine of Merger in Felony-Murder and Misdemeanor-Manslaughter, 35 St. John's L. Rev. 109, 117 (1960)." Viser, 62 Ill. 2d at 579.
The court noted that as a result of the classification of degrees of murder, "it has been held that an assault upon the person killed cannot be made the basis of a felony murder charge." Viser, 62 Ill. 2d at 579.
The supreme court then explained that the defendants' argument was based "in part upon a theory of merger, designed, as has been indicated, to support or accommodate a classification of degrees of murder, and in part upon assumptions about the particular kind of criminal conduct that the offense of felony murder was intended to deter." Viser, 62 Ill. 2d at 579-80.
In rejecting the defendants' argument, the supreme court noted "our Criminal Code does not establish degrees of murder" and that what the legislature intended in establishing the offense of felony murder "was to deter the commission of any of the enumerated forcible felonies, including aggravated battery, by holding the perpetrator responsible for murder if death results." Viser, 62 Ill. 2d at 580.
Consequently, the court held that the indictment charging the defendants with felony murder based upon the aggravated battery of the deceased victim was not improper. Viser, 62 Ill. 2d at 580.