## Facts

- Four defendants and a fifth participant agreed to take marijuana by force from Robert and Kathy Fitzgerald.
- Three participants armed themselves with loaded sawed-off shotguns; two defendants acted as getaway drivers.
- One armed participant entered the Fitzgerald home, produced a shotgun, and forced Robert Fitzgerald into a rear room while another armed participant trained a shotgun on him from outside.
- Kathy Fitzgerald obtained a .30-30 rifle and shot the fifth participant as he broke through the kitchen door.
- The defendants fled with the wounded participant, who later died from the gunshot wound.
- After a stipulated-facts, nonjury trial, the defendants were convicted of second-degree murder under Delaware’s felony-murder provision and second-degree conspiracy; they received life imprisonment for murder and probation for conspiracy.

## Issues

1. Whether Delaware’s second-degree felony-murder statute applies when the only death during an attempted felony is a co-felon killed by the intended victim resisting the crime.
2. Whether a second-degree conspiracy conviction may stand when the charging instrument fails to allege an overt act.

## Decision

- The Delaware Supreme Court reversed the second-degree murder convictions and remanded.
- The court held the felony-murder statute did not reach a killing of a co-felon committed by the victim of the felony because the death was not “in furtherance of” the felony.
- The court reversed the second-degree conspiracy convictions because an overt act is an element of the offense and the information did not allege one.

## Legal Principles

- Felony-murder liability under 11 Del. C. § 635(2) requires that the homicide occur “during the course of and in furtherance of” the predicate felony; a killing by the intended victim resisting the felony is not “in furtherance of” the felony.
- Delaware applies an agency-based limitation to felony murder under this statute: the required “in furtherance” element is not satisfied by killings attributable to victims or other non-agents of the felons.
- Second-degree conspiracy under 11 Del. C. § 512 requires allegation and proof of an overt act in pursuance of the agreement; omission of an overt act from the charging instrument is a material defect requiring reversal.

## Conclusion

The court set aside the defendants’ felony-murder convictions because the victim’s defensive shooting of a co-felon was not a killing “in furtherance of” the felony, and it set aside the conspiracy convictions because the State failed to allege the required overt act.


Weick v. State, 420 A.2d 159 (Del. 1980)