Commonwealth v. Redline ( 1958 )

Opinion by

Mr. Chief Justice Jones,

The defendant was convicted of murder in the first degree with penalty fixed a.t life imprisonment for the death of his co-felon from a gunshot wound inflicted by a police officer endeavoring to apprehend the two culprits who were attempting to flee the scene of their armed robbery. From the judgment of sentence entered on .the jury’s..verdict, the.defendant has appealed contending that he cannot, under any rational legal theory, be charged with murder for his accomplice’s death since the killing was done by an officer of the law engaged in the performance of his duty and was, therefore, a justifiable homicide. Opposed to this, the Commonwealth maintains that the defendant is not only chargeable with murder for his confederate’s death under the rationale of Commonwealth v. Thomas, 382 Pa. 639, 117 A. 2d 204, but, also, on the ruling in Commonwealth v. Almeida, 362 Pa. 596, 68 A. 2d 595, the proofs being that the defendant initiated and provoked the fusillade of shots one of which, admittedly from a policeman’s gun, mortally wounded the co-felon.¹

In the Thomas case, the defendant was held answerable to an indictment for murder for the killing of his accomplice by the victim of their robbery, the malice requisite being imputed because of the defendant’s contemporaneous participation in the initial felony. The conclusion reached in the Thomas case was a further extension of the felony-murder doctrine as applied in Commonwealth v. Almeida. The opinion for the court in the Thomas case relied for its principal authority on the decision in Almeida and also cited the more recent case of Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464. But, Bolish is plainly distinguishable from Almeida, while the instant case, whose operative evidential elements are basically similar to those of the Thomas case, is distinguishable from both Almeida and Bolish. The decision in the Almeida case was a radical departure from common law criminal jurisprudence; and the ruling should not be extended by still further judicial enlargement. A review of relevant authorities will so confirm.

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 the instant case presents had ever before been declared murder in this State prior to the ruling in Commonwealth v. Thomas, supra. If predominant present-day thinking should deem it necessary to the public’s safety and security that felons be made chargeable with murder for all deaths occurring in and about the perpetration of their felonies — regardless of how or by whom such fatalities came — the legislature should be looked to for competent exercise of the State’s sovereign police power to that end which has never yet been legislatively ordained.²

The material facts of the instant case may be briefly stated. And, inasmuch as the jury’s verdict rejected the defendant’s self-exculpatory testimony, we shall accept the facts and circumstances of the robbery and killing as recited in the Commonwealth’s counter history of the case.

Around midnight of April 11, 1956, Redline, the present defendant, and his companion, Erbor Worseck, perpetrated at gun point a robbery of certain persons in the Midway Restaurant in Reading. During the course of the crime, two police officers were disarmed and held captive in the establishment. The defendant and his accomplice Worseck, fleeing the scene, compelled one Raymond R. Herschman to accompany them. Redline was the first to leave the building, behind him was Herschman and behind Herschman was Worseck. As they were departing, uniformed police officers outside bore down upon them. Redline, seeing one of the officers, shouted to him, “The man you want is in there [apparently meaning the building he had just left].” With that, Redline aimed a 45-caliber revolver at the policeman, wlio was then approximately fifteen to twenty feet distant, and fired point-blank but failed to hit his intended victim. Prior to this shot by Redline, there had been no shooting whatever. The policeman immediately returned the fire, and there then ensued a gun battle involving several policemen and the defendant and Worseck. During the course of the shooting, two policemen were seriously wounded, the defendant himself was wounded and so was Worseck. The latter’s wound, which admittedly was inflicted by a bullet from a policeman’s gun, proved fatal. It was Worseck’s death for which Redline was indicted, tried and convicted for murder. As stipulated of record at trial, no bullet from the defendant’s gun ever touched Worseck.

The above recited circumstances would, of course, support a serious criminal charge against Redline but not for murder. He was a willing participant in an armed robbery for which he could be indicted and found guilty at common law and, more lately in this State, under a pertinent statute. But, he is not chargeable under any known relevant rule of law, save for the decision' in the Thomas case, Supfa, with'murder for the death of his co-felon. The question here involved calls for a complete review of the felony-murder theory.

The definition of murder at English common law, which ivas carried for Avar d by our Act of January 28, 1777, 1 Sm. L. 429, alone defines the crime in this State. Consequently, in re-examining the felony-murder doctrine, both as to its origin and deA'elopment generally and its application in Pennsylvania, it is to be kept in mind that, except for one special and presently irrelevant mode of death-dealing by means of intentional train-wrecking,³ there is no statutory crime of murder in Pennsylvania. The so-called murder statute of this State is but a categorizing of common law murder into tAVO degrees — a dichotomy still unrecognized in England whence the definition of murder as knoAvn and applied in Pennsylvania was derived. In fact, the General Assembly of this State was the first legislative body in America to divide the crime of murder into degrees (see Section 2 of the Act of 1794, supra). Since then, more of the other States of the Union have adopted similar statutes. See Needy, A Problem of First Degree Murder: Fisher v. United States, 99 U. of Pa. L. Rev. 267 (1950).

Although degrees of murder were, and still are, unknown to the common law, three classes of homicide are there recognized, the term “homicide” being generic and embracing 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, *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 escapmg felon, etc.; an excusable homicide is such as is committed either per infortunium (i.e., accidentally) or se defendiendo (i.e., in self defense) : IV Blackstone, Commentaries, *178-186; and a felonious homicide (i.e., 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; 1 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 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. The proof requirements necessary to establish a case of murder, as defined in the Busard case, are no different than they were at the time of Commonwealth v. Drum, supra. The “reasonable creature in being” specified in the common law definition of murder, as stated in the Drum case, was none other than the human being whose death at the hands of another is still necessary to constitute a homicide. “The distinguishing criterion of murder”, as recognized in the Drum case, “is malice aforethought.” And, that continues to be true today. Malice is the “grand criterion which now distinguishes murder from other killing”: IV Blackstone, Commentaries, *198.

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. It had its origin in antiquity. According to Morris, op. cit. supra, “There is, indeed, more than a hint of the existence of such a rule in Braeton’s De Legibus et Consuetudinibus Angliae”, circa 1256, and was developed “in its formulations through Coke, Hale, Foster, Blackstone-and East ...” A widely accepted and quite plausible explanation of the origin of the doctrine is that at early common law many crimes, including practically all, if not all, felonies were punishable by death so that it was of no particular moment whether the condemned was hanged for the initial felony or for the death accidentally resulting from the felony: see The Killer and His Victim in Felony-Murder Cases by Hitchler, 53 Dick. L. Kev. 3 (1948). But, the fact that murder continues to be the only capital offense in Pennsylvania makés the distinction as to felony-murder vitally significant. And, - the trend generally has been to restrict rather ' than to expand application of the- felony-murder doctrine: Indeed, in enacting the murder degree statute of 1794, supra, the Pennsylvania legislature constricted the penalty for felony-murder by imposing capital punishment only for such felony-murders as occurred in the-perpetration of arson, rape, robbery or burglary.⁴

All felony-murder in Pennsylvania other than such as is committed in the perpetration of one of the common law felonies specified in our degree statute is murder of the second degree by virtue of the express terms of that statute respecting “All other kinds of murder”. It is plain enough that neither the Act of 1794, supra, nor any of its subsequent re-enactments •made all homicides occurring in the perpetration of felonies murder of the first degree. Logically, therefore, the basic 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 raises the murder to first degree if it happened, inter alia, to have been committed in the perpetration of arson, rape, robbery, burglary or kidnapping: cf. Commonwealth v. Kelly, 333 Pa. 280, 284-285, 4 A. 2d 805.

In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of hilling. The mere coincidence of homicide and felony is not enough to satisfy the requirements of. the felony-murder doctrine. “It is necessary . . . to shoAv that the conduct causing death was done in furtherance of the design to commit the felony. Death must be a consequence of the felony . . . and not merely coincidence”: Hitchler, op. cit. supra, citing Perkins, Malice Aforethought, 43 Yale L. J. 537 (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, supra, in 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; Commonicealth v. Frisbie, 342 Pa. 177, 20 A. 2d 285; Commonivealth 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 felon’s 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 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 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, impliedly approved the instruction.

The rule thus expressed and followed in Pennsylvania prior to the Almeida, case was the same in other common-law jurisdictions and still continues so to be.

' In Commomoealbh 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.” 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.”

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 marshal in Ms effort to suppress the rowdy conduct of the Butlers and théir companions. Citing Commonwealth v. Campbell, supra, as-a-casé in pói-Ut, Chief Justice Ckaig, 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 marshal]. 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 marshal], 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 1 Warren, Homicide, §74), malice not being imputed since the initial offense was not a felony. And so, the jury convicted the Butlers of voluntary manslaughter. But, 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 k gun with which to defend himself, discharged it and accidentally killed Anderson Young, an innocent bystander. The indictment for murder was dismissed by the trial court and the Commonwealth appealed. The Kentucky Court of Appeals cited approvingly the eases of Commonwealth v. Campbell and Sutler 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 ivas the result of action on the part of John Young, the proprietor of the house, in opposition of 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 proprietor of the house] had killed Moore, one of the robbers, would the [surviving robber] have been guilty of murder?” This query posed the very question present in the instant case, but the Kentucky Court of Appeals rhetorically answered it in the negative as follows: “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.”

In State v. Oxendine, 187 N. C. 658, 122 S.E. 568, a bystander was accidentally shot and killed by a man defending himself against an attack by the defendants who were indicted, and tried for murder for the killing. A general verdict of guilty of manslaughter ivas 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 a 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 what it termed “the law of the ease 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 possible contrary finding would have required a reversal of the convictions.

In People v. Garippo, 292 Ill. 293, 127 N.E. 75, 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. 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 examples, is aptly stated in 13 Ruling Case Law at pp. 753-751 as follows: “Thus, where persons conspire together to commit robbery, and while carrying out such conspiracy their victim, in self-defense, discharges a fire arm at his assailants, and accidentally kills a bystander, the conspirators are not guilty of the homicide.” To say, as has been suggested, that the cases above cited and discussed are the only decisions so holding affords only an unwarranted and specious implication. There has not been cited to us, nor has our research disclosed, a decision in any State of the Union, or in England, that holds to opposite effect except for this court’s decisions in Commonwealth v. Almeida and Commonwealth v. Thomas.

There was testimony in the Almeida case that the lethal bullet was fired by one of the robbers. This was disputed by the defendant who claimed that it was from a policeman’s revolver. It was in that situation that the court charged the jury that, the defendant having been engaged in a robbery at the time of the killing, it was immaterial to a conviction of first degree murder that the fatal bullet was fired by someone other than the defendant or an accomplice. As authority for this instruction, the trial judge relied upon a dictum in Commonwealth v. Moyer and Byron, 357 Pa. 181, 53 A. 2d 736. The jury convicted Almeida of first degree murder. In affirming the judgment of sentence, this court 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 of ,the felons or some one acting in their behalf. 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 felony-causation as a prerequisite to the applicability of the felony-murder rule. Thus, this court’s opinion 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-liability requirement of proximate cause is not conclusive. If it were, then the doctrine of supervening 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 gratuity as an examination of the trial record in the Moyer and Byron, case will at once disclose.

In its general charge, the court submitted the Moyer and Byron case 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 the innocent gasoline station attendant whose death was the subject-matter of the indictment. And, in addition, the court affirmed without qualification the defendants’ second, point for charge 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.” Furthermore, at the conclusion of the charge and after reading to the jury the above-mentioned point as affirmed, the trial judge, at the insistence of counsel for the defendants, repeated to the jury verbatim this same requested instruction. Naturally, neither Moyer nor Byron charged the trial judge with any error in regard to his instructions on the law concerning what was necessary for the jury to find, relative to who fired the fatal shot, before the defendants could be convicted of murder. Nor did the district attorney at any time argue or even intimate that the trial judge had charged the jury more favorably to the defendants than he should have. The indisputable fact is that the contention that it was immaterial who fired the fatal shot was never raised in the court below in the Moyer and Byron case. 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 opinion writer’s individual view concerning a matter coram non judice. In the light of the trial court’s charge, the jury’s verdict in that case cannot be taken to mean otherwise than that the fatal bullet was fired by one of the felons in furtherance of their criminal conspiracy.

It follows that 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 initial 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. 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, 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. See, e.g., Keaton v. State, 41 Tex. Cr. R. 621, 57 S.W. 1125; Taylor v. State, 41 Tex. Cr. R. 564, 55 S.W. 961; and Wilson v. State, 68 S.W. 2d 100 (Ark.). In not one of those cases was the malice imputed by the defendant’s participation in the initial felony. Obviously, they were not based on 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 before them (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 felons’ motive in placing an innocent victim in a position of mortal danger was to protect themselves from shots fired at them or to induce their adversaries not to shoot at all. The malice would be no less than express in either event.

Nor did Commonwealth v. Bolish, supra, justify the decision in the Thomas case. Bolish was indicted for murder of his confederate, Flynn, who died from severe burns received while committing arson with the use of an inflammable liquid and an electric hot plate furnished by Bolish for use in setting the fire of the criminal undertaking. Under the evidence, Flynn was either (1) an accomplice of Bolish who allegedly had planned the arson or (2) he was Bolish’s weak-minded tool who acted under the impulse of Bolish’s influence and domination. Thus, the malice essential to charging Bolish with murder Avas present either (1) by imputation under the felony-murder theory, if the death Avas found by the jury to haAe occurred as a result of confederate Flynn’s act in furtherance of the criminal conspiracy or (2) expressly, if Flynn was found to be merely a pliant dupe who acted on Bolish’s order in performing the criminal act Avith highly dangerous means which threatened grievous bodily harm to the actor.

The instant appeal affords an appropriate occasion for the repudiation of Commonwealth v. Thomas, supra, which we uoav expressly overrule as an unAvarranted judicial extension of the felony-murder rule. Fortunately, no one has suffered any penalty as a result of the holding in that case. Following our remand of the record in the Thomas case, the district attorney moved the trial court for leave to nol pros the murder indictment. The court approved the motion, and a nolle prosequi was duly entered. At the same time, the court accepted the defendant’s plea of guilty to an indictment charging him Avith armed robbery of which he was unquestionably guilty and for which he was immediately sentenced and committed to the penitentiary where he is now serving his sentence. Since we herewith overrule Commonwealth v. Thomas, it follows that the present appellant’s conviction of murder cannot be sustained on the basis of the decision in that case.

The Commonwealth contends, however, that, entirely apart from the Thomas case, the appellant’s conviction of murder can be upheld on the rationale of Commonwealth v. Almeida. As already indicated, Almeida was, itself an extension of the felony-murder doctrine by judicial decision and is not to be extended in its application beyond facts such as those to which it was applied. In short, the Almeida case was concerned with the killing, during the perpetration of a felony, of an innocent and law-abiding person by someone other than the felons or ones acting in aid of their criminal conspiracy. The evidence warranted a finding that it was an accidental killing by an officer of the law, but the felons were held accountable nonetheless on the basis of proximate causation regardless of who fired the fatal shot. In the present instance, the victim of the homicide was one of the robbers who, while resisting apprehension in his effort to escape, was shot and killed by a policeman in the performance of his duty. Thus, the homicide was justifiable and, obviously, could not be availed of, on any rational legal theory, to support a charge of murder. How can anyone, no matter how much of an outlaw he may be, have a criminal charge lodged against him for the consequences of the lawful conduct of another person? The mere statement of the question carries with it its own answer.

It is, of course, true that the distinction thus drawn between Almeida and the instant case on the basis of the difference in the character of the victims of the homicide is more incidental than legally significant so far as relevancy to the felony-murder rule is concerned: cf. Morris, op. oit. supra? at p. 56. In other words, if a felon can be held for murder for a killing occurring during the course of a felony, even though the death was not inflicted by one of the felons but by someone acting in hostility to them, it should make no difference to the crime of murder who the victim of the homicide happened to be. However, the factual difference, so noted, admits of a recognizable distinction with respect to a felon’s responsibility for an incidental killing (which another has committed), depending upon whether the homicide was justifiable or excusable, and such distinction serves the useful purpose of thwarting further extension of the rule enunciated in Commonwealth v. Almeida that it is immaterial who fires the fatal shot so long as the accused was engaged in a felony.

The limitation which we thus place on the decision in the Almeida case renders unnecessary any present reconsideration of the extended holding in that case. It will be time enough for action in such regard if and when a conviction for murder based on facts similar to those presented by the Almeida case (both as to the performer of the lethal act and the status of its victim) should again come before this court. |

Judgment of sentence reversed and record remanded with directions that the defendant’s motion in arrest of judgment be reinstated and thereupon granted.

1 Both the Almeida and the Thomas cases have provoked a large amount of critical law review comment and discussion. For a particularly well-considered and cogent criticism, see The Felon’s Responsibility for the Lethal Acts of Others by Norval Morris, Associate Professor of Criminology at the University of Melbourne, in Vol. 105, U. óf Pa. L. Kev., p. 50'.

2 It is not inappropriate to recall, that the General Assembly of Pennsylvania, in prescribing by the Act of April 22, 1794, P.Ii. 186, punishment less than capital for certain types of murder, expressly recognized that “Whereas the design of punishment is to prevent the commission of crimes, and to repair the injury that hath been done thereby to society or to the individual, and it hath been found by experience, that these objects are better obtained by moderate but certain penalties, than by severe, and excessive punishments . . .”

3 Section 919, Of The Penal. Code of 1939, P.L. 872, 18 PS. §4919; see Commonwealth v. Johnson, 368 Pa. 139, 81 A. 2d 569.

4 The limitation So imposed by thé Act Of 1794 was carried over. into Section 74 of the. Act pf. 186Q, .P.L, 382. And, by Section.!, of'the Act of May 22, 1923, P.L. 3Ó6, a fifth'felony (viz., kidnapping)' was added. As so amended, the statute was later codified in Section 701 of the presently applicable Penal Code of 1939, supra.