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State v. Oimen | 516 N.W.2d 399, 184 Wis. 2d 423 (1994)
If a person accidentally kills someone, the lack of malice aforethought generally precludes murder liability. But in State versus Oimen, we explore the felony-murder rule as a means of imputing malice aforethought to persons who unintentionally kill someone while engaged in certain other felonious activities.
James Oimen, Shawn McGinnis, and David Hall planned to rob local bookie Tom Stoker. Oimen, the only one having previous contact with Stoker, provided a diagram of Stoker’s house and showed where Stoker’s money was likely located. He also assured McGinnis and Hall that Stoker was a mild man who would concede when confronted.
On the scheduled night, McGinnis and Hall approached Stoker’s house while Oimen stayed with the getaway truck. From outside Stoker’s kitchen door, McGinnis, armed with a BB gun, shouted that they wanted Stoker’s money. Stoker ran to his bedroom and grabbed his rifle. From there, Stoker saw McGinnis standing in the hallway, pointing what Stoker believed to be a real gun at him. Stoker took aim at McGinnis. McGinnis and Hall immediately retreated. Stoker followed. When he reached the kitchen, he thought McGinnis was re-entering the house. Stoker consequently shot McGinnis, who died from his injuries. Upon hearing the shot, Oimen drove away.
Oimen was subsequently charged with, among other things, felony murder for McGinnis’s death during the attempted armed robbery. Oimen moved to dismiss, arguing that he couldn’t be liable because the intended victim, rather than one of Oimen’s accomplices, shot McGinnis.
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