final case in our call this morning is case number one zero seven zero nine one gender number three people in the state of illinois versus jefferson davis and so you me under these facts can be the underlying felony for felony murder and i would submit it cannot because the same acts arose from man or inherent in the murder of the victim there was no independent felonious purpose for the conduct between the mob action and the murder in the first what i can show that i believe is just by looking at the charges the actual charge says that this defendant while committing a forcible felony ever intended set out or ever intended to kill norwood or even the defendant's conduct you pick killed him or it's all those are all issues he did not admit that he killed mr norwood is there any significance  in relation to your argument that the one in the same well the only significance would be if one would take to persist in that intent to kill would take felony murder off the table but i think the issue is i would say this unclear but i guess it depends on the definition vast majority there may have been up to twenty stab wounds and he did four or five who gave his stab wounds killed the person on their own which we don't know that i've read and did he never admit that he intended to kill him that's true but i think we also have to realize that the state filed and pursued intent to kill always through the trial until the very end once the felony  murder charges were not to snuff then they dismissed the attentional murder so all the way through this trial they were arguing that he intended to kill and defense was defending on that issue well i guess my point is it's not a textbook morgan situation isn't it i'm not saying it isn't but if you say that all these cases are tough cases but would you agree that this case seems to involve a less intimate connection between the predicate felony in the murder and it didn't work and will certainly follow a court ruled that way so yes certainly but i think the public court was in firaaq because i think they are the same that and somebody gets killed maybe the guy pulled a gun maybe didn't it didn't matter you can argue self defense because you went in there to rob the place and that's that's the nice fella murder stuff now are good and all these things are prosecutors instead of going with intentional murder in because that's how they charged walker met in a forcible entry forcible felony he stabbed it well that the evidence showed that the stabbing began after patrick de berry began beating norwood with the bench trail in other words the stamping death and arguably here that's tough to decide if the cipher were twenty stab wounds and nor would command four of those how could it quote arise from or be inherent in the act of murder  a chase by a number of people well i think the that is that the mob action no i don't think so your honor i think he threw the bat just so that what he said to show that he didn't want to be involved with this guy and you want to go back to the car i would say that's not mob murder yes i do they charge that they presented evidence of it always through the trial they thought that there was intentional murder and there was evidence of it he stabbed him four or five times there was an independent witness saying he saw three or four people stabbing the stated to prove the defendant together with one or more other persons to serve the public peace through the use of force or violence correct you are saying there was no use of force or violence until they all came together  are with him that may be true but he said he only went that way in through a bad way the show that he didn't way more to do with it he got rid of the thing that was in his hand and went back to the car his intent from his testimony was that you're right he didn't want anything to do with this murder would would you say that if this court looks at these facts and there's an assertion where this court believes that the mob action occurred first not the murder and the mob action together or the other way around that then your position fails because it's not inherent in the murder if this court finds that the mob action occurred perhaps when he fought with them one on one but that's not the way they charge that that's not the they charge and what the jury ended up with was a mob action with with the then die and they could have very well found a mob action which i think they did fine occurred when the stabbing affair that's was more than one person that's the violence that's the public disturbing the public case but that's all the same and again i'd like to get back to that this is it makes it even worse because and going on and they broke for the evening and i think they came back the next day and the state says well we're just missing intentional murder the judge said fine then you're not going to use those journal i mean this is purely advice planned out by the state to avoid any possible jury instructions of unreasonable self defense then they could just argue this is a mob action because they fought together with other guys you know it's a dead person so it doesn't matter if he had an elisa most of that's there you don't get t i think that's the inherent unfairness of this fact situation which is why i understood anyway why the original cases came down was the state can somehow shortcut intentional theory is that same act and as justice kirk said in his does that there wasn't any independent phone as part of the mob action the murder had the same purpose the defendant in their case join with a group in beating the victim to death intent in acting the felony murder statute but it is also the state's position that under the same act dr and family murder was an appropriate charge in this case predicated on the mob action because as in davis it was unclear who struck the blows what is what is your position relative to causing it if the defendant to lose a legitimate self defense defense because you could because if you're charging the felony murder your honor to make a self defense or unreasonable self defense argument a defendant has to concede that they intended to kill the victim they intend to kill the victim because of a belief either correct or incorrect  honor i believe the general assembly has laid out conditions with a separate mens rea of the knowing or intentional murder on which they wish to hold the defendant criminally responsible pursuant to first degree murder for a death that occurs and that's when th commission of a forcible felony if you take the for example the case of an arson which is specifically listed as a forcible felony in the statute defining forcible felony as a defendant could set fire to a home not knowing that someone was inside it and a victim died because of that fire they didn't intend to kill the victim they didn't know that their actions were likely to kill the victim and there was a single form his act there but i think it's clear from the plain language of  family murder statute in the definition of forcible felony is that that is exactly the kind of situation which the general assembly did intend a defendant to be criminally responsible for the death that occurred pursuant to first degree murder  so that's why that's why a separate phone is purpose passed is more gives better effect to the legislative intent in the purpose the separate purpose is not there has to be two different purposes acting in concert the question is was the defendant's purpose in acting something other than killing the victim and here the defendant's purpose by his own testimony there was not to kill the victim there is evidence that his intent was to escape hit him with a bat the victim turned back towards the defendant the fended stabs the victim the victim then continued on and on and was then surrounded by the rest of the group and stabbed to death even taking a very narrow reading and we don't believe there's any reason to read mob action isn't there always the friend it doesn't even speaking a very narrow reading at that point mob actions been proven the victim hasn't been murdered yet to you know draw the distinction with morgan  and use some of the reasoning that the court brought out in morgan when focusing on this question of a separate phoniest act it's a question of cause and effect the defendant didn't commit mob action because he was in the process of committing murder the defendant committed mob action and because he was engaging in this forcible felony somebody died and it wasn't necessary to in addition to th forcible felony was inherent in the rose from committing the murder and in this case the murder arose from committing the forcible felony the acts of forcible felony didn't arise from committing the murder and they certainly weren't inherent in that many of the steps along the way if the  state already had proven mob action occurred well before the victim was dad and in fact the state never had to prove that the defendant delivered the killing blow in order to establish mob action which makes this  further questions on whether or not this was an appropriate charge is the state believes it was under the test that appears to have been a doctor did in davis and morgan health people also as your hon doctrine and focus on separate phoneys purposes and its subsequent cases the court hasn't explicitly adopted a same act doctrine or rejected by his or nevertheless the court has appeared to adopt a rule that focuses on conduct distinct from the actor resulting in their sentence death as opposed to a purpose and this interesting consistent with legislative intent i think the arson example that i already discussed is not perhaps the best example of that the arson example being a perfect example where the legislature's intent to hold someone criminally responsible for a death that occurs in the course of a forcible felony likely would result from two separate phony assassins so the plain language of the statute seem to indicate that the legislature intended felony murder to apply in cases where there is a single a single act what distinguishes felony murder from the other forms of firstly murder knowing intentional murder is the mens rea a component hold the felon responsible for the deadly consequences of his actions in committing a forcible felony and the same act doctrine swards the legislative intent to hold the defendant so responsible family murder acts  deterrent to violent felonies by subjecting defendants to prosecution for first degree murder when someone dies even where the people can't prove the defendant intended to kill the victim and that and that purpose was also recognized by this court and sho t so by by imposing the test that seems to have been adopted in the in the subsequent cases it strips felony murder of its intended purpose is a deterren the defendant's companions informed defendant that their goal was to find norwood and quote get him and he chose to get in the car with them and set out to hunt for norwood when they found him he jumped out of the car he gave chase to norwood  it's disputed what exactly his intent was when he jumped out of the car but based on the fact that he knew what they were setting out to do when he got into the car there was certainly sufficient evidence to establish that his intent was to participate  d in in attacking norwood yet defendant had testified that he did not intend to kill so this is a case where the senate acted with the intent based on the evidence to engage in mob action but disavowed any intent to kill the victim and that's a situation where it fits perfectly into the third form of first degree murder in that he was intentionally participating in a forcible felony and someone died as a result of those actions so to the extent this court has adopted the same act after the prior decisions it should overrule the reasoning in those cases that adopt a separate phone use purpose test that gives effect to the legislatures and ten prove murder in other words the conduct that constituted mob action did not arise from it it was not inherent in the act that resulted in norwood's death nor was murder because defendant committed mob action not the other way around murder may peace accord just a couple of points the stake is talking about mob action being separate from the murder but they never even charged mob action they never said the defendant committed mob action and that he chased this guy with somebody else that he threw a battle somebody else or or anything like that they charge him with mob action and that he struck and stabbed mr nama with these other people and ergo felony murder they set this up to be the same thing they could have easily charge him with mob action and murder and he didn't do it so now to come back on monday morning quarterback it and say well maybe the mob action or heard prior to the death of mr nama that's not the way they approached it they set it up this way so the defendant couldn't use his legitimate defenses that are an issue of fact for the jury decide how maybe the jury would have decided in his favor but we never know that because of the way the state set this up position if the state ultimately dismissed the knowing it intentional with regard to the defense well it would make my position not as strong because what if the mob action was related to the murder as as they d could on davis it was a mob action but davis all he did was swing at this that and that's all the evidence there had against him which is totally different than this case where my client stabbed and possibly four or five  he's number one zero seven zero nine one to be taken under advisement his agenda number three