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Whittlesey v. State5/13/1992
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III.
Our determination whether the judge below erred in denying Whittlesey's motion to dismiss the murder indictment begins with a consideration of what that indictment encompassed. It presented that Whittlesey
feloniously, willfully and of deliberately premeditated malice aforethought did kill and murder one James Rowan Griffin . . . .
We discussed the crime of murder in Hook v. State, 315 Md. 25, 27-28, 553 A.2d 233 (1989) (footnotes omitted):
Homicide is the killing of a human being by a human being. It is culpable when it is felonious. It is felonious when it is not legally justifiable or excusable. Felonious homicide is either murder or manslaughter. Murder is in the first degree or in the second degree. In Maryland, all murder perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing or committed in the perpetration of, or attempt to perpetrate certain felonies (of which robbery is one) is murder in the first degree. All other kinds of murder are murder in the second degree.
The Maryland statutes designating murder in the first degree and murder in the second degree do not create new crimes but rather divide the common law crime of murder into degrees for the purpose of punishment. Bruce v. State, 317 Md. 642, 645, 566 A.2d 103 (1989). On the other hand, we pointed out in State v. Ward, 284 Md. 189, 195, 396 A.2d 1041 (1978):
In Maryland, murder and manslaughter are not considered as degrees of felonious homicide, but are regarded as distinct offenses, distinguished by the presence of malice aforethought in murder and the absence of malice in manslaughter.
See Hook v. State, 315 Md. at 28, n. 2, 553 A.2d 233; State v. Faulkner, 301 Md. 482, 485, 483 A.2d 759 (1984).
Under the murder indictment, Whittlesey could be convicted of murder in the first degree or murder in the second degree or manslaughter. Two of the instances in which he could be convicted of murder in the first degree are upon a determination by the trier of fact that the homicide (1) was wilful, deliberate and premeditated or (2) was committed in the perpetration of a felony (felony murder). In felony murder an intent to kill is not a necessary
element. Veney v. State, 251 Md. 159, 174, 246 A.2d 608 (1968), cert. denied, 394 U.S. 948, 89 S.Ct. 1284, 22 L.Ed.2d 482 (1969).
To secure a conviction for first degree murder under the felony murder doctrine, the State is required to prove a specific intent to commit the underlying felony and that death occurred in the perpetration or attempt to perpetrate the felony; it is not necessary to prove a specific intent to kill or to demonstrate the existence of wilfulness, deliberation, or premeditation.
Bruce v. State, 317 Md. at 645, 566 A.2d 103, and cases therein cited. As we said in Jackson v. State, 286 Md. 430, 435, 408 A.2d 711 (1979):
omicide arising in the perpetration of, or in the attempt to perpetrate, a felony is murder whether death was intended or not, the fact that the person was engaged in such perpetration or attempt being sufficient to supply the element of malice.
It is patent that there can be no felony murder when there has been no death. " bsent death the applicability of the felony murder rule is never triggered
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