Criminal Law, Pages 329–331

State v. Sophophone

Supreme Court of Kansas, 2001


Defendant and three co-felons were burglarizing a house, and the resident called the police. The police arrived, saw them fleeing the house, ordered them to stop. The individuals started to run away, but defendant was caught and arrested. One of his co-felons ran at first but then, stopped, laid down, and shot at an officer when he approached closer. The officer then returned fire and killed him.


Is defendant guilty of felony murder when his co-felon was killed by police?


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"Murder in the first degree is the killing of a human being committed:

. . . .

  1. in the commission of, attempt to commit, or flight from an inherently dangerous felony . . . ."


Aggravated burglary is an enumerated inherently dangerous felony. The minority of states that adopt proximate cause theory state that any felon or accomplice who kills someone is responsible if the death was proximate. However, neither defendant nor his accomplices directly killed anyone. The officer acted lawfully in shooting the decedent, which falls outside of the statute, which must be construed in favor of the defendant. It does not appear that either position would deter the commission of further felonies, so policy considerations are not relevant.


A felon is not guilty of felony murder when his co-felon is lawfully killed by an officer.

Dissenting Opinion:

Abbott: The statute is unambiguous and does not establish the adoption of the majority's agency theory. It does not address it at all. It simply requires a killing in furtherance of an inherently dangerous felony, which flight is included in. Defendant set in motion acts which would have led to the officer's death if he did not kill the decedent first, which is exactly the situation the legislature intended. The majority's opinion will prevent the accused from being charged with felony murder in several situations where they should. If the law is to be changed, the legislature should do it, not the court.