The Lookout Who Said No Guns
Dana and Luis agree to burglarize a closed pharmacy at 2 a.m. to take cash and pills. Beforehand Luis says, "No guns - if you bring a gun, I'm out." Dana answers, "Fine, no gun," but secretly brings a pistol. Luis waits in the driver's seat as lookout. Inside, a pharmacist working late confronts Dana with a baseball bat, and Dana shoots and kills him. Luis hears the shot, panics, and drives away without Dana. Luis never knew about the gun and never touched it. The jurisdiction applies the common law. Luis is charged with the pharmacist's murder; his attorney argues that Luis neither intended nor foresaw a killing.
1. Is Luis guilty of the pharmacist's murder?
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Yes, on a felony-murder theory, and possibly on an accomplice theory as well.
Felony murder. Burglary is a felony that is inherently dangerous, and the killing occurred during its commission. Under the common law, every participant in the underlying felony is liable for a killing committed in the course of that felony, even without intent or knowledge. Luis's ignorance of the pistol is irrelevant to this theory - that is the whole point of felony murder, and it is why his attorney's foreseeability argument misses.
Accomplice liability. An accomplice is liable for crimes that are the natural and probable consequence of the enterprise. An armed confrontation during a night burglary of a pharmacy is a foreseeable risk. This theory is weaker for Luis because he expressly conditioned his participation on there being no gun, which is evidence that a shooting was not within his contemplation. The felony-murder theory does not care.
The agency wrinkle. Because the shooter was a co-felon rather than police or a bystander, Luis is liable under both the agency and proximate-cause formulations. That is worth stating - it is a place where the theories happen to converge.
2. Does Luis's "I'm out" statement, or his driving away, amount to withdrawal?
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No on both counts.
The statement. A conditional warning issued before the crime, which the speaker then ignores by participating anyway, is not withdrawal. Withdrawal requires repudiation plus neutralization: the accomplice must communicate his withdrawal to the others and must do all he can to deprive his prior assistance of effectiveness - here, take back the car, or at least refuse to drive. Luis did neither. He also had no actual knowledge triggering withdrawal in fact, since Dana told him there was no gun.
Driving away. A withdrawal attempted after the felony has begun is ineffective unless the accomplice neutralizes his assistance. Luis's assistance was the getaway car and the lookout position. Fleeing the scene does not undo the role he already played, and the felony was still in progress when he left - the pharmacist was already dead or dying.
A useful contrast: if Luis had taken the car keys and walked away before entry, or had gone to the police, the analysis would be different. Timing and neutralization are the test.
3. Suppose Luis had learned about the gun two hours before the break-in, said "I'm out," gone home, and taken the car. What would his liability be?
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He would escape felony murder, but not everything.
The felony. An effective withdrawal before the felony begins - communicated and with his assistance neutralized (the car gone) - cuts off liability for the burglary and for the killing that followed. He is not an accomplice to a crime he genuinely abandoned.
The conspiracy. Conspiracy is complete on the agreement plus the overt act. Withdrawal from a conspiracy after it is formed does not erase the conspiracy itself; it only limits liability for subsequent substantive crimes committed by co-conspirators. So Luis remains liable for conspiracy to commit burglary. That is a point students routinely get backwards: withdrawal is not a defense to conspiracy, it is a limit on future liability.
The attempt problem. If the group had already taken a substantial step - casing the pharmacy, acquiring tools - Luis may also face attempted burglary. His withdrawal must come early enough to be meaningful.
This hypothetical shows why the original facts matter: Luis did none of these things, and so remains exposed on every theory.