DISSENTING OPINION BY MR. JUSTICE JONES:

I am at a loss to understand how anyone can be found guilty of murder at common law for a killing that, unquestionably, was a justifiable homicide. Yet, that is precisely the eventuality which the court's decision in this case portends.

On the basis of imputed malice, drawn from the defendant's participation in a robbery, he is held to be answerable to a charge of murder for the killing of his confederate by the victim of their robbery. The consequence thus arrived at is a further and, to my mind, wholly unwarranted extension of the felony-murder doctrine. The opinion for the court relies, for its principal authority, on the decision in Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595; it also cites the more recent case of Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464. But, the Bolish case is plainly distinguishable from Almeida, and the instant case is equally distinguishable from both.

The decision in the Almeida case was sui generis. It was a judicial departure from common law criminal jurisprudence. A review of authorities will readily so confirm The ruling in the Almeida case should not, therefore, be extended by still further judicial enlargement. The only constitutional power competent to define crimes and prescribe punishments therefor is the legislature, and courts do well to leave the promulgation of police regulations to the people's chosen legislative representatives. No killing under circumstances such as this case presents has ever heretofore been declared murder in Pennsylvania.

The facts of the instant case are few and undisputed. Without doubt, they would support a criminal charge against the defendant Thomas but not for murder. With his companion, Jackson, Thomas conspired to, and did, rob the grocery store of one Cecchini. Jackson who was armed, kept Cecchini covered with his gun while Thomas rifled the cash register. When they had finished their nefarious plot they rushed from the store and, reaching the street, ran in opposite directions. Cecchini, grabbing a revolver from under the counter, gave chase and engaged in an exchange of gun fire with Jackson with the result that Jackson was mortally wounded by a bullet fired by Cecchini. The record does not show that Thomas was armed at the time of the killing, but whether he was or not is presently immaterial. He was a willing participant in an armed robbery whereof he could be charged and found guilty at common law ( Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085) and more recently under a pertinent statute of this State. But, Thomas is not chargeable, under any known rule of relevant law, with murder for the death of his co-felon. It is the common law alone which defines murder in Pennsylvania. It is obvious, therefore, that in re-examining the felony-murder doctrine, both as to its origin and development and its application in Pennsylvania as well as in other common law jurisdictions, it is to be fixed firmly in mind that there is no statutory crime of murder in Pennsylvania save for one special and presently irrelevant mode of death-dealing.

The so-called murder statute of this State is but a categorizing of common law murder into two degrees — a division still unrecognized in England whence the definition of murder as applied in this State was derived. The fact is that the legislature of Pennsylvania was the first to divide the crime of murder into degrees (see Section 2 of the Act of April 22, 1794, P. L. 186). Since then, most of the other States of the Union have adopted similar statutes. See Keedy, History of the Pennsylvania Statute Creating Degrees of Murder, 97 U. of Pa. L. Rev. 759 (1949); and Keedy, A Problem of First Degree Murder: Fisher v. United States, 99 U. of Pa. L. Rev. 267 (1950). The Act of 1794, supra, was re-enacted practically verbatim as Section 74 of the Act of March 31, 1860, P. L. 382, and, again, as Section 701 of The Penal Code of 1939, P. L. 872, 18 Pa.C.S.A. § 4701.

Although degrees of murder were, and still are, unknown to the common law, three classes of homicide are there recognized. The term "homicide" is, of course, generic and embraces every killing of a human being by another: 1 Warren, Homicide, § 54 (Perm. Ed.); IV Blackstone, Commentaries, *177. The classifications of homicide at common law are (1) justifiable, (2) excusable and (3) felonious. "The first has no share of guilt at all; the second very little; but the third is the highest crime against the law of nature that man is capable of committing": IV Blackstone, Commentaries, *177-178. A justifiable homicide is such as is committed either by command or, at least, with the permission of the law, e.g., execution of a convicted criminal, apprehension of an escaping felon, etc.; an excusable homicide is such as is committed either per infortunium (i.e., accidentally) or se defendendo (i.e., in self defense); IV Blackstone, Commentaries, *178-186; and a felonious homicide (i.e., a murder) occurs when a person of sound memory and discretion unlawfully and feloniously kills any human being in the peace of the sovereign with malice prepense or aforethought, express or implied: see IV Blackstone, Commentaries, *195; I Warren, Homicide, § 63; 1 Wharton, Criminal Law, § 419 (12th Ed.). Such is substantially the definition of murder which this court adopted in Commonwealth v. Drum, 58 Pa. 9, and which has ever since then been uniformly applied by this court in the multitude of murder trials that has followed: see, e.g., Commonwealth v. Buzard, 365 Pa. 511, 76 A.2d 394.

As Blackstone expressed it, malice is the "grand criterion which . . . distinguishes murder from other killing": IV Commentaries, *198. And, yet, in certain circumstances the malice essential to murder need be neither prepense nor express. For instance, at common law an accidental or unintentional homicide committed in the perpetration of or attempt to perpetrate a felony is murder, the malice necessary to make the killing murder being constructively imputed by the malice incident to the perpetration of the initial felony. Thus, "if one intends to do another felony, and undesignedly kills a man, this is also murder": IV Blackstone, Commentaries, *200-201. This type of felonious homicide, known as felony-murder, became firmly imbedded in the common law. Expressions of the doctrine are to be found in many of the common law text writers and commentators, including Lord Coke: see article entitled "The Killer and His Victim in Felony-Murder Cases" by Hitchler, 53 Dick. L. Rev. 3 (1948). The same author further notes that the most widely accepted explanation of the origin of the doctrine is that at early common law practically all felonies were punishable by death and that it was of no particular moment whether a man was hanged for one felony or another. However, the differentiation today in the punishments for the various felonies makes the distinction as to felony-murder vitally important. And, the trend generally has been to restrict rather than to expand application of the felony-murder doctrine. In fact, in enacting the Act of 1794, supra, the Pennsylvania legislature restricted the scope of the murder rule, so far as first degree murder was concerned (i.e., the capital offense which all murder is at common law), to four specifically enumerated felonies, namely, arson, rape, robbery or burglary. The limitation so imposed by the Act of 1794 was carried over into Section 74 of the Act of 1860, supra. And, by Section 1 of the Act of May 22, 1923, P. L. 306, a fifth felony (viz., kidnapping) was added. The statute, as so amended, was later codified in Section 701 of the presently applicable Penal Code of 1939, supra.

All felony-murder other than the types specified in Pennsylvania's degree statute is murder of the second degree by virtue of the express terms of that statute. Neither the Act of 1794, supra, nor any of the subsequent re-enactments made all homicides occurring in the perpetration of felonies murder of the first degree. It was only such murder as was committed in the perpetration of the statutorily specified felonies that was made first degree murder. Logically, therefore, the initial determination of the fact of murder is to be made according to the rules of the common law, including the felony-murder theory of imputed malice, and, upon a finding of guilt, the degree statute automatically intervenes to raise the murder to first degree if it happened to be committed in the perpetration of arson, rape, robbery, burglary or kidnapping: cf. Commonwealth v. Kelly, 333 Pa. 280, 284-285, 4 A.2d 805.

The thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of killing. The mere coincidence of homicide and felony is not enough to satisfy the requirements of the felony-murder doctrine. "It is necessary . . . to show that the conduct causing death was done in furtherance of the design to commit the felony. Death must be a consequence of the felony. The requirement is causation and not merely coincidence": Hitchler, loc. cit. supra, citing Perkins, Malice Aforethought, 43 Yale L. J. 537, 569 (1934).

The legal situation which for years obtained in this State in cases of felony-murder was aptly epitomized by Mr. Justice PARKER in Commonwealth v. Guida, 341 Pa. 305, 308, 19 A.2d 98, as follows, ". . . if a person killed another in doing or attempting to do another act, and if the act done or attempted to be done was a felony, the killing was murder. There was thus supplied the state of mind called malice which was essential to constitute murder. The malice of the initial offense attaches to whatever else the criminal may do in connection therewith" (Emphasis supplied). And so, until the decision of this court in Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595 (1949), the rule which was uniformly followed, whether by express statement or by implication, was that in order to convict for felony-murder, the killing must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious undertaking. See, e.g., Commonwealth v. Major, 198 Pa. 290, 47 A. 741; Commonwealth v. Grether, 204 Pa. 203, 53 A. 753; Commonwealth v. Lessner, 274 Pa. 108, 118 A. 24; Commonwealth v. Carelli, 281 Pa. 602, 127 A. 305; Commonwealth v. McManus, 282 Pa. 25, 127 A. 316; Commonwealth v. Lawrence, 282 Pa. 128, 127 A. 465; Commonwealth v. Doris, 287 Pa. 547, 135 A. 313; Commonwealth v. Tauza, 300 Pa. 375, 150 A. 649; Commonwealth v. Flood, 302 Pa. 190, 153 A. 152; Commonwealth v. Crow, 303 Pa. 91, 154 A. 283; Commonwealth v. Sterling, 314 Pa. 76, 170 A. 258; Commonwealth v. Bruno, 316 Pa. 394, 175 A. 518; Commonwealth v. Shawell and England, 325 Pa. 497, 191 A. 17; Commonwealth v. Stelma, 327 Pa. 317, 192 A. 906; Commonwealth v. Kelly, 333 Pa. 280, 4 A.2d 805; Commonwealth v. Guida, supra; Commonwealth v. Frisbie, 342 Pa. 177, 20 A.2d 285; Commonwealth v. Elliott, 349 Pa. 488, 37 A.2d 582; Commonwealth v. Pepperman, 353 Pa. 373, 45 A.2d 35; Commonwealth v. Wooding, 355 Pa. 555, 50 A.2d 328.

Until the Almeida case there was no reported instance in this State of a jury ever having been instructed on the trial of an indictment for murder for a killing occurring contemporaneously with the perpetration of a felony that the defendant was guilty of murder regardless of the fact that the fatal shot was fired by a third person acting in hostility and resistance to the felon and in deliberate opposition to the success of the criminal undertaking. On the contrary, in Commonwealth v. Thompson, 321 Pa. 327, 330, 184 A. 97, which involved a conviction of first degree murder with penalty of death, the defendant contended that the victim was killed by a bullet fired by a neighbor in an effort to resist the defendant's armed assault, while attempting to burglarize the home of the deceased victim. On appeal to this court, the defendant complained that "the trial judge did not adequately present to the jury the evidence in support of his contention that the bullet which killed [the deceased] was fired from [the neighbor's] pistol, but reviewed at greater length and with emphasis the evidence supporting the opposite theory of the Commonwealth." In affirming the conviction, this court, after noting that no objections had been made at the close of the trial to the court's instruction in the regard indicated, said that "when the statement complained of is read with the preceding portion of his charge, it is clear that the trial judge did not intend to, and in fact, did not convey the impression that the doctor had testified the decedent died from a gunshot wound inflicted by any particular bullet or pistol. An examination of the charge in its entirety discloses very careful instruction that the jury must be satisfied beyond a reasonable doubt that the defendant's shot caused the death" (Emphasis supplied).

Again, in Commonwealth v. Mellor, 294 Pa. 339, 342, 144 A. 534, which likewise involved a first degree murder conviction with the death penalty, the major defense at trial was that the innocent victim of a shooting in connection with an attempted robbery by the defendant (and a confederate) was accidentally killed by a bullet from a revolver of a police officer attempting to repel the robbers' felonious assault. In submitting the case to the jury "the trial judge charged that, if the jurors believed [the deceased] was killed by a shot from [the policeman's] revolver, [the defendant] should be acquitted." And, this court, in an opinion by Mr. Chief Justice MOSCHZISKER, neither criticized nor repudiated the instruction.

The rule thus expressed and followed in Pennsylvania at earlier times was the same in other common-law jurisdictions and still continues so to be.

In Commonwealth v. Campbell, 89 Mass. (7 Allen) 541, on an indictment for murder for a homicide committed near an armory in Boston during a riot which grew out of the enforcement of the Civil War draft, the Commonwealth's evidence showed that the defendant was participating in the riot; that a military force was called out to suppress the riot and was stationed in the armory; and that the mob was fired on by the soldiers and the soldiers were fired on by the mob. The case was tried before Chief Justice BIGELOW and Justices METCALF, MERRICK and HOAR of the Supreme Judicial Court of Massachusetts and was prosecuted by the Attorney General of the State in person. The Attorney General requested the court to instruct the jury as follows: "That whether [the deceased] was killed by a shot from within or without the armory, all the parties unlawfully engaged in the transactions which resulted in the homicide were at common law guilty, at least of manslaughter." The instruction was refused in an opinion for the court by Chief Justice BIGELOW who said in part (pp. 544-545), " No person can be held guilty of homicide unless the act is either actually or constructively his, and it cannot be his act in either sense unless committed by his own hand or by some one acting in concert with him or in furtherance of a common object or purpose. Certainly that cannot be said to be an act of a party in any just sense, or on any sound legal principle, which is not only not done by him, or by any one with whom he is associated or connected in a common enterprise, or in attempting to accomplish the same end, but is committed by a person who is his direct and immediate adversary, and who is, at the moment when the alleged criminal act is done, actually engaged in opposing and resisting him and his confederates and abettors in the accomplishment of the unlawful object for which they are united. Suppose, for example, a burglar attempts to break into a dwelling-house, and the owner or occupant, while striving to resist and prevent the unlawful entrance, by misadventure kills his own servant. Can the burglar in such case be deemed guilty of criminal homicide? Certainly not" (Emphasis supplied). Coming to the facts of the particular case, Chief Justice BIGELOW said (pp. 547-548) that, "If the homicide was the result of a shot fired by the soldiers or other persons in the armory, acting together in defence against the riotous assembly, the defendant cannot be held guilty of either murder or manslaughter. The jury will accordingly be instructed that, unless they are satisfied beyond a reasonable doubt that the deceased was killed by means of a gun or other deadly weapon in the hands of the prisoner, or of one of the rioters with whom he was associated and acting, he is entitled to an acquittal" (Emphasis supplied).

In Butler v. People, 125 Ill. 641, 18 N.E. 338, William and Franklin Butler, with two other persons, were charged with murder for the killing of an innocent bystander by a shot fired by the town marshall in his effort to suppress the rowdy conduct of the Butlers and their companions. Citing Commonwealth v. Campbell, supra, as a case in point, Chief Justice CRAIG, speaking for the Supreme Court of Illinois, said that ". . . we know of no well-settled rule of law which would hold the defendants liable for the acts of [the town marshall]. They would be responsible for what they did themselves, and such consequences as might naturally flow from their acts and conduct; but they never advised, encouraged, or assented to the acts of [the town marshall], nor did they combine with him to do any unlawful act, nor did they in any manner assent to anything he did, and hence they could not be responsible for his conduct toward the deceased." The rowdyism of the Butlers and their companions was a misdemeanor and not a felony. But, the principle involved is the same so far as the defendants' criminal responsibility for the marshal's unintentional killing of an innocent third person was concerned. At common law, a homicide committed by one acting in furtherance of a misdemeanor (at least one malum in se) is, by like token, voluntary manslaughter (see I Warren, Homicide, § 74), malice not being imputable, the offense not being a felony. And, voluntary manslaughter was the crime whereof the Butlers were convicted. However, the Supreme Court of Illinois reversed the judgments for the reasons above quoted, viz., that criminal responsibility is not imputable to a wrongdoer for the homicidal effect of a resisting officer's accidental or unintentional killing of an innocent bystander.

In Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085, the defendants, Moore and Kelly, assaulted John Young with the intent to rob him. Young drew a gun with which to defend himself, discharged it and accidentally killed Anderson Young, an innocent bystander. Just as here, the indictment for murder was dismissed by the trial court and the Commonwealth appealed. The Kentucky Court of Appeals cited approvingly the cases of Commonwealth v. Campbell and Butler v. People, supra, quoting from what it termed the "learned opinion of the Supreme Court of Massachusetts" in the Campbell case, and affirmed the dismissal of the indictment, saying in support of its action, "Here the homicide was not committed by the conspirators, either in the pursuance of the conspiracy or at all; but it was the result of action on the part of John Young, the proprietor of the house, in opposition to the conspiracy, and entirely contrary to the wishes and hopes of the conspirators. In order that one may be guilty of homicide, the act must be done by him actually or constructively, and that cannot be, unless the crime be committed by his own hand, or by the hands of some one acting in concert with him, or in furtherance of a common object or purpose. The defendants can in no sense be said to have aided or abetted John Young, for he was firing at them; and to hold them responsible criminally for the accidental death of a bystander, growing out of his bad aim, would be carrying the rule of criminal responsibility for the acts of others beyond all reason. Suppose, instead of killing an innocent bystander, Young [the victim of the robbery] had killed Moore, one of the robbers; would the survivor have been guilty of murder? And yet, if the principle sought to be maintained by the Commonwealth be sound, the survivor would necessarily be guilty of murder, because the owner of the house to be robbed had killed his companion; for he could just as truly be said to have aided and abetted the owner of the house in that case as in this" (Emphasis supplied).

In State v. Oxendine, 187 N.C. 658, 122 S.E. 568, on an indictment for murder, the deceased, a bystander, was accidentally shot by a man defending himself against an attack by the defendants. A general verdict of guilty of manslaughter was returned as to all defendants. On appeal by one of them (Oxendine), the Supreme Court of North Carolina, in reliance upon the Campbell, Butler and Moore cases, supra, reversed the conviction on the ground that "Walter Oxendine [the appellant] and Proctor Locklear [the man who fired the fatal shot] were not acting in concert; they were adversaries, and it is the general rule of law that a person may not be held criminally responsible for killing unless the homicide were either actually or constructively committed by him; and, in order to be his act, it must be committed by his own hand, or by someone acting in concert with him, or in furtherance of a common design or purpose."

In People v. Udwin, 254 N.Y. 255, 172 N.E. 489, some escaped convicts were indicted for the murder of one of their number who was shot and killed in attempting to escape. In New York, escape from prison is a felony and any killing committed during the perpetration of a felony is first degree murder. Evidence as to who fired the fatal shot was circumstantial. The defendants were convicted of murder in the first degree. On appeal, the defendant, Udwin, contended that the evidence did not exclude all reasonable possibilities that the fatal shot was fired by someone other than one of the conspirators. The Court of Appeals approved "the law of the case as stated by the trial justice" who had charged that it was the burden of the prosecution to establish "beyond a reasonable doubt that the shot which killed [the deceased] was fired by one of the convicts engaged with the defendants, or some of them, in a common purpose or design to unlawfully and feloniously escape." The defendants were convicted; and, the question on the appeal was whether the evidence was sufficient to justify the verdict. By a process of elimination, the Court of Appeals found conclusively from the evidence that the shot which killed the deceased could have been fired only by one of the escaping convicts. It is implicit in the opinion that a contrary finding would have required a reversal of the convictions.

A case such as the supposititious illustration of the Moore case, supra, did actually arise, viz., where surviving robbers were charged with the murder of an accomplice who had met his death, during the course of the robbery, at the hands of a person unknown: see People v. Garippo, 292 Ill. 293, 127 N.E. 75. In that case, one Scalzitti, along with the defendants, had engaged in a highway robbery. During the progress of the robbery, Scalzitti, the leader, was shot and killed. The trial judge submitted the case to the jury on the basis that a death having occurred in the course of the robbery, all of the robbers were alike guilty of the homicide. The defendants were found guilty of manslaughter. On the defendants' appeals, the Supreme Court of Illinois, after discussing and quoting with approval from the Campbell, Butler and Moore cases, supra, reversed the convictions, holding that "Under the reasoning of the above authorities, instructions 16 and 19 given on behalf of the State and complained of by counsel for plaintiffs in error must be held erroneous. Under those instructions, plaintiffs in error might be held responsible for shooting done by another person when there was no concert of action between him and them."

The rule long recognized and sedulously applied by the courts of this country, of which the Campbell, Butler and Moore cases, supra, are notable illustrations, is aptly stated in 13 Ruling Case Law at pp. 753-754 as follows: "Thus, where persons conspire together to commit robbery, and while carrying out such conspiracy, their victim, in self-defense, discharges a firearm at his assailants, and accidentally kills a bystander, the conspirators are not guilty of a homicide." To say, as has been suggested, that the cases above cited and discussed are the only decisions so holding affords only a specious implication. The fact is that there is no decision in any State of the Union, or in England, holding to opposite effect, so far as my research has disclosed, except for this court's decision in Commonwealth v. Almeida. Certainly, no such case has been brought to our attention.

It would seem to be clear beyond cavil that the ruling in the Almeida case was a judicial extension of the felony-murder doctrine. Such being its status, application of the ruling should be restricted to facts similar to those to which it was applied, viz., the killing of an innocent person by another innocent person as a result of indiscriminate gun fire on a busy public thoroughfare incidental to the attempted frustration and apprehension of armed robbers seeking to flee the scene of their felony. A consonant limitation of the Almeida decision is especially indicated in view of the tenuous grounds upon which it was based.

At the trial of the Almeida case, the court charged the jury that it was immaterial to a conviction for first degree murder (the defendant having been engaged in a robbery at the time of the killing) that neither the defendant nor an accomplice had fired the fatal shot. This instruction relied for its authority on a dictum in Commonwealth v. Moyer and Byron, 357 Pa. 181, 53 A.2d 736. Thereafter, this court, in affirming Almeida's conviction of first degree murder, declared that an accidental or unintentional killing occurring during the perpetration of a robbery rendered those feloniously engaged in the robbery guilty of murder in the first degree even though the fatal wound was not inflicted by any one of the felons or any one acting in their behalf or in furtherance of the felonious undertaking. The rationale of this pronouncement lay in an adaptation of the doctrine of proximate cause (as known to the law of torts) to the common-law requirement of causation in its relation to responsibility for a felony-murder. Thus, the opinion for the court specifically avowed that "Our decision in the Moyer-Byron case was an application of the long established principle that he whose felonious act is the proximate cause of another's death is criminally responsible for that death and must answer to society for it exactly as he who is negligently the proximate cause of another's death is civilly responsible for that death and must answer in damages for it." As we have already seen, the "causation" requirement for responsibility in a felony-murder is that the homicide stem from the commission of the felony. Obviously, the assumed analogy between that concept and the tort concept of proximate cause is not conclusive. If it were, then the doctrine of superseding cause, which, for centuries, courts have recognized and rendered operative on questions of proximate cause, would have to be considered and passed upon by the jury. But, that qualification, the Almeida case entirely disregarded.

Beyond that, the statement in the opinion for the court in the Almeida case that "Our decision in Commonwealth v. Moyer and Byron, supra, is authority for our decision in this case" was without justification. The expression in the Moyer and Byron opinion to which the Almeida opinion thus alluded was that "A man or men engaged in the commission of such a felony as robbery can be convicted of murder in the first degree if the bullet which causes death was fired not by the felon but by the intended victim in repelling the aggressions of the felon or felons." That statement was a palpable dictum as an examination of the record in the Moyer and Byron case will at once disclose.

At the trial of Moyer and his confederate, Byron, the court, in its general charge, submitted the case to the jury on the basis that, in order to convict, the jury would have to find, beyond a reasonable doubt, that either one or the other of the defendants fired the bullet which killed Zerbe, the innocent gasoline station attendant, whose felonious killing was the subject-matter of the indictment. More than that, the court affirmed the defendants' second point for charge which was as follows: "The defendant is entitled to an acquittal unless the commonwealth has produced evidence of such a quality as to prove beyond a reasonable doubt that the bullet causing the death of the deceased was fired from the gun of either of the defendants." And, at the conclusion of the charge and the reading of the affirmed points to the jury, the trial judge, at the insistence of counsel for the defendants, reiterated verbatim this requested instruction to the jury. Not one of the twenty-two reasons filed by Moyer and Byron in support of their identic motions for a new trial charged the trial judge with any error in regard to his instructions to the jury concerning what was necessary for the jury to find as to the firing of the fatal shot before the defendants could be convicted of murder. And, the district attorney nowhere argued or even intimated that the learned trial judge had charged the jury more favorably to the defendants than he should have. The actual fact is the contention that it was immaterial who fired the fatal shot was never raised by the Commonwealth in the court below nor could the defendants have charged error in such regard in view of the trial judge's cognate instructions. Consequently, the point required no discussion by this court. What was said in the Moyer and Byron opinion in such connection was, therefore, no more than an expression of the writer's individual view concerning a matter coram non judice. The jury's verdict in the light of the trial court's charge can be taken to mean only that the fatal bullet was fired by one of the felons.

The decision in the Moyer and Byron case was in no sense authority for the ruling in Almeida. And, the same can be said for the decisions in Commonwealth v. Guida, Commonwealth v. Doris and Commonwealth v. Sterling, cit. supra. In each of those cases the death-dealing act was committed by one participating in the incidental felony. The cases of Commonwealth v. Phillips, 372 Pa. 223, 93 A.2d 455, and Commonwealth v. Lowry, 374 Pa. 594, 98 A.2d 733, which have lately been advanced as having reaffirmed the ruling in Almeida are not presently germane. Neither of those cases was in any way related to or dependent upon the decision in the Almeida case. In the Phillips case, the defendant pleaded guilty to a charge of murder, actually admitting that he himself had fired the fatal bullet, while in the Lowry case the evidence supported a finding by the jury that the defendant was the co-conspirator of the felon who fired the fatal shot. Patently, neither of these cases involved the rationale of the Almeida case.

The out-of-State cases cited and relied on in the Almeida opinion were equally not in point. For example, in the so-called "shield" cases, i.e., where a felon uses the interposition of the body of an innocent person to escape harm in flight from the scene of his crime, the malice is express. In not one of those cases was malice imputed. Consequently, they did not involve the felony-murder theory. Indeed, the courts which decided those cases expressly recognized the validity of the principles enunciated in the Campbell, Butler and Moore cases, supra, but found such principles not pertinent because the factual situations then involved (viz., the use of an innocent person as a shield or breastwork against the hostile bullets of an adversary) supported findings of express malice. And, that was so regardless of whether the motive of the felons, in placing the innocent victim in a position of danger, was to protect themselves from shots fired at them or to induce their adversaries not to shoot at all.

Nor does Commonwealth v. Bolish, supra, justify the majority's present decision. In that case, Flynn, for whose death Bolish was indicted for murder, died from severe burns received while committing arson with the use of an inflammable liquid and an electric hot plate furnished by Bolish for the purpose of setting the fire. According to the evidence, Flynn was either (1) an accomplice of Bolish who allegedly had planned the arson or (2) he was Bolish's pliant dupe acting directly under Bolish's influence and domination. Thus, malice essential to charging Bolish with murder was present either, by imputation (i. e., felony-murder), because the death occurred as a result of an act of the defendant's confederate (Flynn) while furthering the conspiracy or, expressly, because Bolish ordered his dupe to perform an act of known great danger threatening grievous bodily harm.

Acceptance of the decision in the Almeida case as being declaratory of the law applicable to the facts of that case need not require that every death occurring concurrently with the commission of a felony makes the felons guilty of murder even though none of them inflicted the fatal wound. So to limit the Almeida ruling is necessary for the protection of the liberties of the people generally by insuring that no one can be convicted of crime and punished other than as the competently established law ordains and not merely by judicial ipse-dixitism. If it should be deemed essential to the public safety and security that felons be made chargeable with murder for all deaths occurring in and about the perpetration of a felony — regardless, of who inflicted the fatality — the legislature should be looked to for appropriate exercise of the State's sovereign police power to an end never yet legislatively enacted.

The ruling of the majority in the instant case goes far beyond the holding in the Almeida case. Here, Jackson, the deceased, forfeited any right to the law's protection when he entered upon his armed aggression against a peaceful citizen who, in killing Jackson, acted throughout with the permission, if not at the command, of the law. Observe the absurd situation brought about by constructively making Thomas the killer. If such he be, then he performed a justifiable act. He cut down in his tracks a felon who, at the very moment of his death, was murderously assaulting a blameless citizen who was protecting his life and property. On the basis of the majority's constructive-killer theory, Thomas should be commended, and not condemned, for the lawful dispatch of the armed robber, Jackson, by way of a justifiable homicide.

I would affirm the order of the court below sustaining the defendant's demurrer.

Mr. Justice CHIDSEY joins in this dissent.

DISSENTING OPINION BY MR. JUSTICE MUSMANNO:

On April 1, 1954, Henry Thomas, Jr., and Henry Jackson, Jr., invaded the grocery store of Frederick Cecchini in Philadelphia for the purpose of committing a robbery. Jackson held a revolver while Thomas rifled the cash register and then they both fled. The proprietor Cecchini seized a pistol from behind a counter and shot at Jackson who returned the fire. In the ensuing running gun battle Cecchini killed Jackson. The surviving robber Thomas was later apprehended and indicted for murder under the Act of June 24, 1939, P. L. 872, § 701; 18 P.S. 4701, which provides, inter alia, that "(a) All murder . . . which shall be committed in the perpetration of . . . any . . . robbery . . . shall be murder in the first degree."

After the Commonwealth had presented its evidence at the trial, the defendant demurred by contending that the facts did not make out first degree murder under the cited statute. The Court sustained the demurrer and the Commonwealth appealed. The Majority of this Court has reversed the judgment and ordered a new trial on the charge of murder.

There can be but little doubt, of course, that Henry Thomas committed robbery, but I do not see how he can be charged with murder. The statute under which Thomas has been indicted specifically states that "all murder which shall be committed in the perpetration of any robbery shall be murder in the first degree." The killing of Jackson was not in the remotest degree murder. It was justifiable homicide. Cecchini not only had the right but he was compelled to kill Jackson on two counts: (1) in self defense; (2) to prevent the escape of a fleeing felon. How can such a legal act be the basis of a charge of murder?

If Jackson had actually taken his own life at the scene of the robbery, or immediately thereafter, could Thomas be indicted for murder? According to the agreed statement of facts, Thomas and Jackson separated after leaving Cecchini's store. Jackson ran west and Thomas ran east. While fleeing in the opposite direction from his accomplice, Jackson on his own engaged Cecchini in a battle and lost his life as the result of his own homicidal aggressiveness. To hold Thomas then for the act of Jackson who brought about his own death as much as if he had shot himself, is, as I view the matter, absolutely insupportable in the law books or in any classroom of serious discussion.

The obvious intent of the Act of 1939 was to punish with the severest possible penalty all those engaged in robbery if, during the unfolding of the robbery or escape therefrom, some innocent person was killed. The individual killed here was not an innocent person, he was not a victim; he was one of the perpetrators of the robbery. He was killed not during the furtherance of the robbery, but while the victim himself was trying to prevent the robbery.

One could conclude from the Majority Opinion that since Thomas was a robber, society is justified in killing him. But any penalty which goes beyond what the law specifically prescribes for a certain offense is an assault on the majesty and the dignity of the law itself. Society is not benefited when the norms of established procedure are exceeded by those charged with upholding them. If the sovereign power of the Commonwealth believes that robbers should be put to death, the Legislature should enact a statute to that effect. But until the General Assembly so speaks, this Court or any other Court has no right to read into the statute what is not there. As the Superior Court well said it in the case of Com. ex rel. Green v. Keenan, 176 Pa. Super. 103, 106: "The legislature has exclusive power to determine the penological system of the Commonwealth, and it alone can prescribe the punishments to be meted out for crime."

With all the will in the world to wish otherwise, I can only see in the Majority's Opinion an arbitrary exercise of power arising out of a zeal to combat criminals, which zeal does not surpass that of this writer's. However, zeal must be channeled into the ways of the law as written. Although the Majority Opinion covers some 1200 words it never succeeds in explaining how the word "murder" in the Act of 1939 can be made to mean anything else. In fact at the end it practically concedes its arbitrariness when it says that Jackson's death "was a killing in the perpetration of a robbery." I repeat that the statute says: " Murder which shall be committed in the perpetration of any robbery shall be murder in the first degree." It does not say "killing." If the Majority can torture the word "murder" into the word "killing," then why may not manslaughter be read as assault and battery, why may burglary not become larceny and what is to hinder the interpretation of arson as malicious mischief? The Court has the power to do this, but with such abandonment to legalistic malapropism, it is inevitable that the whole criminal code will soon be awash in a verbal Sargasso Sea.

The defendant Thomas as an individual may be of little importance in the forum of intellectual argumentation which this case has created. It is to be regretted that there should not be a more worthy subject to save, but robber and criminal as Thomas undoubtedly is, he still may not be used as a target for illegal punishment. I do not want to see this highest court in our Commonwealth use processes of reasoning which do not respond to the demands of fair play which is part of the American way of life. I make a plea in this Dissenting Opinion for legal common sense. It is gratifying to note that the lower Court was not thrown into a panic by the problem which the situation presented. Its powers of reflection were not routed by the forces of emotion. It courageously held the line of reason at the Thermopylae of logic and did not retreat at the Gettysburg of fact.

But the Majority here retreats from logic, abandons precedent, and treats the words of a very clear statute as empty vessels into which any meaning may be poured. But such a procedure is to martyrize the dictionary and to make of the science of language a haphazard aggregation of loose-jointed syllables.

I protested against the decision in the case of Commonwealth v. Bolish, 381 Pa. 500 where this Court only several months ago decided that the defendant there could be tried for murder in the first degree because his confederate was killed in an accidental explosion at the locale of the crime of arson even though Bolish was nowhere near the incendiary fire. I regarded that decision as a most unwise one and I still think so, but the hole in the dike of the law on this subject made by the pronouncement in that case is now widening into a full break, and blind vengeance pours through the break, indifferent to reason and justice.

Nor does the Almeida case, which the Majority quotes, justify what is being done here. In that famed case a policeman who was engaged in the endeavor to restrain and capture some robbers was shot accidentally by another policeman. Almeida, one of the robbers, was properly tried and convicted of murder on the felony-murder doctrine because his participation in the robbery encompassed the possibility of injuring or even killing innocent persons. Pointing out that the proximate cause of the policeman's death was the robbery, this Court said: "The principle of proximate cause in criminal cases was applied by one of the ablest of Pennsylvania nisi prius judges 105 years ago, to wit, President Judge KING, in the case of Commonwealth v. Hare, 2 Pa. L. J. 467 (1844). Two separate bodies of men were fighting each other with firearms in a public street and as a result a citizen was killed. Judge KING held that the members of both bodies of men were guilty of felonious homicide . . . . President Judge KING instructed the jury, inter alia, as follows: `If during such a scene of unlawful violence an innocent third person is slain, . . . such a homicide would be murder at common law . . . and all participants in such an act are alike responsible for its consequences. . . . Shall the violators of the public peace, whose unlawful acts have produced the death of the unoffending, escape, because from the manner and time of the fire it is impossible to tell from what quarter the implement of death was propelled? Certainly not . . .' " Commonwealth v. Almeida, 362 Pa. 596, 606.

It will be noted that the Court speaks of the victim as an "innocent third person" or an "unoffending" person. But in the instant case Jackson was not an innocent third person, nor was he an unoffending person. He was one of the robbers! And he was killed. If it were possible to try a dead man, Jackson himself, under the theory announced by the Majority, should he be tried for his own murder!

In the case of Commonwealth v. Moyer, 357 Pa. 181, this Court quoted from Bishop on Criminal Law as follows: " `A man may be guilty of a wrong which he did not specifically intend, if it came naturally or even accidentally through some other specific or a general evil purpose . . . "One is responsible for what wrong flows directly from his corrupt intentions . . ." ' " (p. 194).

But there was no wrong in Jackson's death. Shooting Jackson was right, and therefore that killing, without assuming the most farcical position, cannot possibly form the basis of a murder charge.

This Court said also in the Almeida case: "If Mrs. Ingling [the widow of the deceased policeman] should bring an action . . . for causing the death of her husband there is no doubt of her ability to recover a judgment against them."

That observation, of course, is logical and just, but could anything be more absurd than Mrs. Jackson in the case at bar bringing a tort action against Thomas for the death of her husband who was not only tainted with the robbery he had committed but whose hands were stained with the murder he was attempting? That is the difference between the Almeida case and the present case.

The State of California recently passed on the very question we are here considering. In the case of People v. Ferlin, 265 P.2d 230, 234-5, one Fisher and one Skala conspired to commit arson. In the perpetration of their crime, Skala was accidentally killed. Ferlin was then tried for murder on the felony-murder theory and was convicted. But the Supreme Court of California reversed the verdict saying: "It cannot be said from the record in the instant case that defendant and deceased had a common design that deceased should accidentally kill himself. Such an event was not in furtherance of the conspiracy, but entirely opposed to it. It follows that the verdict of the jury finding the defendant guilty (of murder) . . . was against the law." What the California Supreme Court said above applies to the facts in the case before us. As I have already stated, the killing in this case was not in furtherance of the robbery, "but entirely opposed to it."

The crime situation in the United States is admittedly a grave one and all forces of the law, including the judiciary, have a duty to exert every effort to vanquish criminals. But what the Majority is doing here is grotesque. It is investing the dead Jackson with virtues of good citizenship. It completely ignores that Jackson was a robber, a felon, a would-be murderer, an armed member of the criminal forces the nation is combatting. He was seeking to destroy Cecchini, an admittedly good citizen. But Cecchini turned the tables on him and Jackson made his exit in true bandit fashion, shooting it out with the law. To use this felon's death as the basis for the charge of constructive murder is to turn the drama of a murder trial into a legalistic vaudevillian performance.

The whole theory of the criminal law is to punish for what should not have happened. In every prosecution for murder the controlling principle of the Commonwealth's case is that the dead victim should be alive. The rationalization behind criminal jurisprudence is that if society could turn back time, it would prevent the happening of the event which it now condemns. But if that chronological miracle could be achieved in this case, society would not desire to prevent the killing of Jackson, who received his just deserts as he was engaged in trying to kill an innocent person.

There has never so far as I have been able to discover until this case a prosecution for murder that was not based on the proposition that the victim had the right to live and therefore the defendant is to be punished for having untimely cut off the days of that victim. The killing which is the subject of every murder trial represents evil. But in this case we have the startling situation of the law seeking to punish not evil but good. The killing of Jackson was not evil, it was not even excusable homicide; it was a killing which the law demanded. How can anyone be punished for what the law required? If the reasoning adopted by the Majority in the disposition of this case were to be carried to its ultimate development, it would mean that everyone connected with a robbery should be executed if one of the robbers went to the electric chair, because that in itself is a killing.

Should the Courts be placed in the preposterous situation of trying a murder case where no murder was committed?

I dissent.