§ 609.015

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II Minn. Stat. § 609.19 (1984) reads in pertinent part as follows: Whoever does either of the following is guilty of murder in the second degree and may be sentenced to imprisonment for not more than 40 years: * * * * * * (2) Causes the death of a human being, without intent to effect the death of any person, while committing or attempting to commit a felony offense other than criminal sexual conduct in the first or second degree with force or violence. Although the language of this felony-murder statute appears on its face to apply to all felonies, this does not prohibit the use of common law rules to aid in statutory construction and interpretation. Minn. Stat. § 609.015, subd. 1 (1984); State v. Cantrell, 220 Minn. 13, 18, 18 N.W.2d 681, 684 (1945). Broadly construed, the common law felony-murder rule holds that any death occurring during the commission of a felony is chargeable against the felon as murder. 4 W. Blackstone, Commentaries on the Laws of England 201 (1769). The common law felonies included homicide, mayhem, rape, arson, robbery, burglary, larceny, prison breach, and rescue of a felon. The basic premises underlying the rule and its various modifications have long been debated by scholars, judges, and legislators. Adlerstein, Felony-Murder in the New Criminal Codes, 4 Am. J. Crim. L. 249 (1975-76). Its critics have protested the absolute liability that results from labeling accidental deaths as murder, and proponents of the rule have argued that its harshness is a deterrent for the use of violence in the commission of crimes. See id. at 249-50. Sir Edward Coke is generally credited with first deriving the felony murder doctrine in Lord Dacres' Case, 73 Eng. Rep. 458 (K.B. 1535), and in Mansell and Herbert's Case, 73 Eng. Rep. 279 (K.B. 1558). See People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980). Under the common law theory of constructive malice, the intent to commit murder was implied from the underlying felonious acts. The rule was strictly applied in a few subsequent cases, because practically all felonies at that time were punishable by death, but was gradually modified and limited in its application until Parliament abolished it in 1957. England's Homicide Act, 5 & 6 Eliz. 2, c. 11, § 1 (1957). Although only Hawaii, Kentucky, and Ohio have followed England's initiative in abolishing the felony-murder rule, many legislatures and courts have attempted to limit the application of the common law doctrine in a variety of ways. See Aaron, 409 Mich. 672, 299 N.W.2d 304. Many states require that the underlying felony be inherently dangerous to life. See People v. Washington, 62 Cal.2d 777, 44 Cal. Rptr. 442, 402 P.2d 130 (1965); People v. Pavlic, 227 Mich. 562, 199 N.W. 373 (1924); State v. Brantley, 236 Kan. 379, 691 P.2d 26 (1984). Some courts have required that the felony be a common law felony (Commonwealth v. Exler, 171 Pa. Super Ct. 527, 89 A. 968 (1914)), or that the felony be malum in se rather than malum prohibitum (Reddick v. Commonwealth, 33 S.W. 416 (Ky.1895)). Other courts impose an additional requirement that the homicide be proximately caused by the felonious act. See State v. Leopold, 110 Conn. 55, 147 A. 118 (1929). Still other courts narrowly construe the time period during which the underlying felony is considered to have taken place. See State v. Montgomery, 191 Neb. 470, 215 N.W.2d 881 (1974). The Minnesota Supreme Court has held that the purpose of the felony-murder rule is "to isolate for special treatment those felonies that involve some special danger to *522 human life." In re Welfare of M.D.S., 345 N.W.2d 723, 729-30 (Minn.1984) (quoting State v. Nunn, 297 N.W.2d 752, 753 (Minn. 1980)). Shortly before a 1981 amendment to the statute,[4] the supreme court explained its rationale for limiting the application of the rule as follows: [T]he statute treats as third-degree murder certain felonious conduct that would otherwise be treated as manslaughter, the rationale being that certain felonious conduct carries with it an especially increased risk that people may be killed as a result and that when a killing occurs as a result of this conduct it is not unfair to punish the person responsible for murder rather than just manslaughter. Nunn, 297 N.W.2d at 754. The supreme court has since stated that a "typical felony-murder * * * probably is an unintentional killing that occurs in the course of robbery or some other crime against the person." State v. Back, 341 N.W.2d 273, 276 (Minn.1983). It is an established rule of common law that penal statutes are to be construed strictly, with any reasonable doubt to be interpreted in favor of the defendant. State v. Corbin, 343 N.W.2d 874 (Minn.Ct. App.1984). It is with this principle in mind that we seek to determine whether the sole act of selling cocaine is a felony that involves some special danger to human life. Courts in other jurisdictions have held that the act of selling heroin does not fall within the scope of a felony-murder statute. See State v. Dixon, 109 Ariz. 441, 511 P.2d 623 (1973) (sole act of selling heroin to a purchaser who voluntarily and out of the presence of the seller injects the quantity and dies as a result does not constitute second degree murder); Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973) (element of malice necessary to support a second-degree murder conviction would not be implied from the defendant's act of injecting the decedent, a fellow drug addict, with heroin because although heroin is a dangerous drug, its reaction does not generally cause death); Sheriff, Clark County v. Morris, 99 Nev. 109, 659 P.2d 852 (1983) (felony-murder rule would not apply to a situation involving a sale only or a sale with a nonlethal dosage injested in the defendant's presence). We conclude that the sole act of selling cocaine does not fall within the scope of the felony-murder statute, Minn. Stat. § 609.19(2). The legislature did not create the felony of sale of cocaine because of any inherent life-threatening qualities. Rather, it was created by the legislature because cocaine has a high potential for abuse and may lead to psychological dependence. See State v. Vernon, 283 N.W.2d 516 (Minn.1979). Thus, although cocaine is admittedly a substance with an adverse effect on a person's health, use of cocaine, even when injected, does not generally cause death. See People v. Pinckney, 65 Misc.2d 265, 317 N.Y.S.2d 416 (1971) (injection of heroin into the body does not generally in itself cause death). Because the sale of cocaine alone does not justify the assumption that the purchaser is incurring a substantial and unjustified risk of death, we hold that sale alone is not a proper felony upon which to predicate a charge of felony murder. To hold otherwise would give the felony-murder statute a broader scope than this court will impute in the absence of clear legislative intent to effectuate that meaning.[5] *523 Furthermore, the State has failed to show a direct causal relationship between the sale of cocaine and the subsequent death of the buyer. See Minn. Stat. § 609.19(2). The Kansas Supreme Court, in State v. Mauldin, 215 Kan. 956, 529 P.2d 124 (1974), addressed this issue in a case in which the defendant's only connection to the victim's death was the act of selling him heroin. The court concluded that because the felony of selling heroin was completed upon consummation of the sale, the resulting death did not fall within the scope of a felony murder. Similarly, in this case, once the exchange of money was complete, the collateral felony of selling cocaine had terminated. Because the death of Craig Schweiger did not occur "while committing or attempting to commit a felony offense," Minn. Stat. § 609.19(2) does not apply.

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