King v. Commonwealth
In King v. Commonwealth, 6 Va. App. 351, 354, 368 S.E.2d 704, 705 (1988), the Court reversed a conviction for felony murder "because the death was not caused by an act of the felons in furtherance of the felony." 6 Va. App. at 353, 368 S.E.2d at 705.
There, the defendant was a pilot of an airplane carrying marijuana into Virginia.
Due to heavy fog, the defendant's companion took control of the airplane while the defendant attempted to navigate.
However, the airplane crashed into a mountain, killing the companion.
The defendant was convicted of felony murder based upon the felony of possession of marijuana with intent to distribute. See King, 6 Va. App. at 353-54, 368 S.E.2d at 705.
In King, the Court held that the accidental death did not stem from the possession or distribution of drugs, but from "fog, low cloud cover, pilot error, and inexperience," id. at 358, 368 S.E.2d at 708, which was insufficient to sustain the conviction.
If the accidental death, in the absence of imputed malice, would not have been a criminal homicide, then the statute does not elevate it to second degree murder and impute culpability for the death to a cofelon.
Moreover, . . . a death which results not from actions of the felons nor from acts directly calculated to further the felony or necessitated by the felony, but from circumstances coincident to the felony, is not a death for which a felony-murder conviction will obtain.
To punish as a murderer, every man who, while committing a heinous offense, causes death by pure misadventure, is a course which evidently adds nothing to the security of human life. Id. at 359, 368 S.E.2d at 708.
Because the death was not caused by an act of the defendant in furtherance of or necessitated by the felony, we reversed his conviction for felony murder. See id.