## Facts

- Nelson James King and Mark Lee Bailey participated as couriers in a marijuana-smuggling operation involving an aircraft carrying a large quantity of marijuana intended for distribution.
- Bailey piloted the aircraft, and King assisted with navigation using maps.
- During flight in poor weather conditions, the plane crashed into Fancy Gap Mountain in Virginia.
- Bailey was killed in the crash; King survived.
- The Commonwealth prosecuted King for second-degree felony murder predicated on possession of marijuana with intent to distribute, asserting Bailey’s death occurred “in the prosecution of” the felony.

## Issues

1. Whether second-degree felony murder under Va. Code § 18.2-33 applies when a co-felon dies accidentally during the commission of the underlying felony.
2. Whether the felony-murder rule requires a direct causal connection between the underlying felony and the death, including that the death result from an act in furtherance of the felony rather than a coincidental event.

## Decision

- The Court of Appeals of Virginia reversed King’s second-degree felony-murder conviction.
- The court held that Bailey’s death, caused by an accidental aircraft crash in adverse weather, was not the consequence of an act in furtherance of the drug-distribution felony.
- The court remanded for further proceedings consistent with its opinion.

## Legal Principles

- Va. Code § 18.2-33 requires more than temporal overlap between a felony and a death; felony-murder liability requires a direct causal connection between the felony and the killing.
- An accidental death is within the felony-murder rule only if it results from an act done in furtherance of the felony, not from a merely coincidental mishap occurring while the felony is ongoing.
- The felony-murder rule may supply malice for an accidental killing that meets the statutory conditions, but it does not eliminate the need for a qualifying killing act that can be attributed to the defendant under the statute.

## Conclusion

The court limited felony-murder liability by requiring that an accidental death during a felony be directly caused by an act furthering the felony; because the co-felon’s death resulted from an aviation accident rather than a felonious act advancing the drug offense, the felony-murder conviction could not stand.


King v. Commonwealth, 6 Va. App. 351, 368 S.E.2d 704 (Va. Ct. App. 1988)