Commonwealth v. Redline

speaking Judge Court, for the contention. Chief Soper, said: corpora- private a

“The could have donor formed permissive Mary- general statutes of tion under the power property and to man- both to own the land with independent Library age the of the the business seek aid the He chose instead to the state State. public support- to institution to be owned found operated city by self-perpetuating ed but political safeguard manip- of trustees it from board accomplished by special and this was act ulation; legislature powers the result obligations city were not conferred trustees inception very Mr. Pratt but state at enterprise although ... It is our view Pratt inspiration initially, furnished funds authority the state was invoked to create the insti- power ownership tution and to vest the in- power strumentality management and the in another, injunction upon with the the former to see to it that performed faithfully latter its trust. We know why separate of no the state cannot reason create agencies carry on its work in this and when manner, they subject it does become to the so, constitutional upon restraints the state itself.” I would admit William Ashe Foust and Robert College. Felder to Girard Appellant. Commonwealth v. Redline, Bell, Jones O. J., Before 1957. May 28, Argued JJ. and Cohen, Jones Arnold, Musmanno, Chidsey, M. Hoffman, E. with him Bernard Joseph DeSantis, for appellant. Assistant District with Attorney, F. Gianci,

Peter District Attorney, 0. Brubaker, him Frederick appellee.

Opinion 10, Mr. Justice January Chief Jones, 1958: of murder in first defendant was convicted

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

In held the Thomas the defendant was answer case, killing of his able to an indictment for murder for the accomplice robbery, by the victim of their the malice requisite being imputed because of the defendant’s contemporaneous participation felony. in the initial in the Thomas The conclusion reached case was felony-murder further extension of the doctrine as applied opinion v. Almeida. principal for the court in the Thomas case relied for its authority on the decision Almeida and also cited the more recent case of Commonwealth v. Bolish, plainly A. Pa. 2d 464. Bolish is But, dis tinguishable from while the Almeida, instant case, operative basically whose evidential elements are simi distinguishable Thomas lar to those of the case, from Almeida and Bolish. The decision in both the Almeida provoked Almeida Both the and the Thomas cases have large amount of critical law review comment and discussion. For cogent particularly criticism, well-considered and see The Felon’s by Responsibility Morris, the Lethal Acts Others Norval Criminology University Melbourne, Professor of at the Associate Kev., p. U. óf Pa. L. 50'. in Vol. departure from common law criminal a radical case was ruling jurisprudence; extended should not be judicial enlargement. A review still further confirm. relevant authorities will so competent power only define constitutional to legis- prescribe punishments is the crimes and therefor promulgation of leave the and courts do well to lature, people’s legislative police regulations chosen to the representatives. such No under circumstances presents been de- as the instant case had ever before prior ruling State to the clared murder this supra. predominant Commonwealth v. If Thomas, thinking present-day necessary should deem it charge- public’s safety security made that felons be occurring murder for all deaths in and about able with perpetration regardless of how of their felonies— legislature byor such fatalities came—the should whom competent be looked to for exercise of the State’s police power sovereign yet to that end which has never legislatively been ordained.2 may briefly The material facts of the instant case rejected jury’s stated. inasmuch as the verdict And, self-exculpatory testimony, defendant’s we shall accept robbery the facts and circumstances of the killing as recited in the Commonwealth’s counter his- tory of the case. midnight April

Around 11, 1956, Redline, present companion, and his defendant, Erbor Worseck, recall, inappropriate Assembly It is not that the General Pennsylvania, prescribing April 22, 1794, the Act of P.Ii. punishment capital types murder, expressly less than for certain recognized design punishment prevent that “Whereas is to crimes, repair injury the commission of and to hath been thereby society individual, done or to the and it hath been by experience, objects found these are better obtained penalties, by severe, moderate but certain than and excessive punishments . .” . perpetrated point persons at of certain gun robbery Restaurant Reading. Midway During course of the two police officers were disarmed crime, and held captive the establishment. The defendant and his accomplice Worseck, fleeing com- scene, pelled one R. Herschman to Raymond them. accompany Redline was the first to leave the behind him building, was Herschman and behind Herschman was Worseck. As were uniformed they departing, police officers out- side bore upon them. down one of the Redline, seeing shouted to “The man officers, want is in there him, you [apparently meaning just he had building left].” With Redline aimed a that, 45-caliber revolver at the wlio was then policeman, fifteen to approximately feet twenty fired distant, point-blank but failed to hit his intended victim. Prior to this shot by there had been no Redline, whatever. shooting policeman immеdiately returned the fire, there then ensued a gun battle involving several policemen and the defendant and Worseck. During course of the shooting, policemen two were seriously wounded, the defendant himself was wounded and so was Wor- seck. The latter’s wound, which in- admittedly was flicted a bullet from a policeman’s gun, proved fatal. It was Worseck’s death for which Redline was indicted, tried convicted for murder. As stipulated of record at no bullet from trial, the defendant’s ever gun touched Worseck.

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

The definition of murder common English at 28, ivas carried Avard our Act of January 1 this Sm. L. crime in 1777, alone defines the 429, State. re-examining felony-mur- Consequently, der deA'elopment both as to its and doctrine, origin is to and its generally application Pennsylvania, in mind kept special pres- for one that, except in- irrelevant mode of means of ently death-dealing by crime tentional there is no train-wrecking,3 statutory of murder in stat- The so-called murder Pennsylvania. ute this State is but a of common law categorizing murder into tAVO still degrees unrecog- dichotomy —a as nized whence the England definition murder In applied knoAvn and was derived. Pennsylvania first the General State was the fact, Assembly this in America to divide the crime of legislative body 2 (see murder into Section of the Act of degrees 1794, Since of the supra). then, more of other States A have similar statutes. adopted Union See Needy, Degree Problem First Murder: Fisher v. United L. 99 U. of Pa. 267 (1950). Rev. States, of murder and still Although degrees are, were, unknown to the common three classes of law, homicide are there the term “homicide” recognized, being generic of a human an- embrаcing every killing being by IV Warren, (Perm. Ed.) ; other: Homicide, §54 *177. The classifications Blackstone, Commentaries, at common law are (1) (2) of homicide justifiable, felonious. (3) excusable “The first has no share is, at the second but the third all; very little; of guilt crime the law of nature that man highest against IV Commen- capable committing”: Blackstone, 919, 3 Section Of The Penal. Code of P.L. 18 PS. Johnson, §4919; Commonwealth v. see 81 A. 2d 569. is com- such as homicide is A justifiable *178. taries, least, at command or, mitted either of a convicted execution law, e.g., permission an felon, etc.; an escapmg apprehension criminal, either as is committed is such excusable homicide or se accidentally) (i.e., per defendiendo infortunium Commentaries, : IV defense) Blackstone, in self (i.e., murder) (i.e., a felonious homicide *178-186; and discretion of sound person memory occurs when kills human being and feloniously unlawfully with malice prepense sovereign peace Blackstone, IV see implied: express aforethought, §63; Homicide, *195; Warren, Commentaries, (12th Ed). Criminal Wharton, Law, §419 murder definition of which is the substantially Such v. Drum, in Commonwealth adopted court this applied been uniformly has ever since and which of murder trials in the multitude this court v. Buzard, Commonwealth e.g., has followed: see, neces- requirements The proof 76 A. 2d 394. Pa. 511, in as defined case of murder, establish a sary than were at no different they Busard are case, The “rea- supra. Drum, time common law in the specified in being” creature sonable in the Drum was case, as stated murder, definition at whose death being the human other than none a to constitute necessary is still another hands of of murder”, criterion distinguishing “The homicide. afore- “is malice Drum case, recognized as true Malice to be today. that continues And, thought.” murder now distinguishes criterion is “grand IV Commentaries, Blackstone, killing”: other from *198. malice essential circumstances

In certain For express. nor prepense be neither need murder or unintentional law an accidental common at instance, perpetration attempt homicide committed perpetrate necessary felony the malice murder, being constructively to make the murdеr im- puted by perpetration the malice incident to felony. “if one another initial intends to do Thus, felony, undesignedly kills this is also man, IV murder”: *200-201. Blackstone, Commentaries, type felony- This of felonious as known homicide, firmly became imbedded the common law. murder, origin antiquity. According It had its to Morris, op. supra, cit. “There more than a hint is, indeed, Legibus of such the existence a rule Braeton’s De et Angliae”, Consuetudinibus circa and was de- veloped through “in its formulations Coke, Hale, accepted widely Blackstone-and East ...” A Foster, quite plausible explanation origin early many doctrine is that at common law crimes, including practically pun- if not felonies were all, all, particular ishable death so that was of no moment hanged whether the condemned for the initial accidentally resulting death from the felony: Felony- see The Killer and His Victim in (1948). Hitchler, Murder Cases Dick. L. Kev. 3 only But, the fact that murder continues to be the capital Pennsylvania offense makés the distinction - felony-murder vitally significant. as to the And, ' generally trend has to been restrict rather than to expand application felony-murder of the- doctrine: enacting degree the murder Indeed, statute of 1794, Pennsylvania legislature supra, the constricted the felony-murder penalty capital imposing punish- for only felony-murders ment for such as occurred in the- perpetration rape, robbery of burglary.4 arson, or 4 imposed by The limitation So thé Act Of was carried over. pf. 186Q, .P.L, And, by of into Section 74 Act Section.!, 382. the. May 22, 1923, 3Ó6, fifth'felony (viz., of'the Act of P.L. a kidnapping)' Pennsylvania felony-murder such than All other perpetration the as is of one of committed specified degree is statute common our law felonies express degree by murder of the virtue of second respecting of kinds terms of that “All other statute plain enough of murder”. It is neither the Act supra, subsequent nor of its re-enactments occurring perpetration (cid:127)made all homicides degree. Logically, felonies murder of the first there is the basic determination the fact murder fore, according to made the rules of the common law, felony-murder including imputed theory malice, upon finding guilt, degree a auto and, statute matically degree hap raises the murder to first if it pened, perpe inter to have been committed in alia, rape, robbery, burglary kidnapping: tration of arson, Kelly, cf. Commonwealth v. 333 Pa. 280, 284-285, A. 2d 805. adjudging felony-murder,

In a it is to be remembered thing imputed all at times which is to felon a felony incidental his malice and not hilling. the act The mere coincidence of homicide felony enough satisfy requirements is not felony-murder necessary doctrine. “It is . . . of. causing to shoAvthat the conduct death was done in design felony. furtherance of to commit the Death consequence must abe . . . and not merely op. coincidence”: supra, citing cit. Hitchler, Aforethought, Malice (1934). Perkins, Yale L. J. 537 legal years situation which for obtained in this felony-murder epitomized State in aptly cases of by Mr. Justice in Commonwealth v. Guida, Parker 19 A. 305, 308, 2d as “. . . if follows, person doing killed attempting another in to do amended, was added. As so the statute was later codified applicable presently Section 701 of supra. Penal Code 496 attempted done or if the act

another act, was murder. There was felony, done was a malice which mind called state of supplied thus malice murder. constitute essential was the initial offense else criminal attaches whatever (Emphasis supplied). therewith” do in connection may Common- this court And until the decision of .so, v. Almeida, supra, wealth was the rule which 1949, express statement or whether by uniformly followed, for felony- that in order to convict implication, by killing must have been done the de- murder, accomplice or an confederate fendant undertaking. acting in See, furtherance of felonious Major, 198 Pa. v. Commonwealth 47 A. 741; 290, e.g., v. Grether, Commonwealth 204 Pa. 53 A. 753; 203, v. Lessner, Commonwealth 274 Pa. 118 24; A. 108, v. Carelli, Commonwealth Pa. 127 A. 305; 281 602, v. McManus, Commonwealth 316; 282 Pa. 127 A. 25, v. Lawrence, Commonwealth 282 Pa. 127 A. 465; 128, v. Doris, Commonwealth 313; 287 Pa. 135 A. 547, v. Tauza, Commonwealth 300 649; Pa. 150 A. 375, v. Flood, Commonwealth 302 Pa. 153 A. 152; 190, v. Crow, Commonwealth 303 Pa. 154 A. 283; 91, Sterling, v. Commonwealth 258; 314 Pa. A. 76, v. Bruno, Commonwealth 316 Pa. 518; 175 A. 394, England, v. Shawell and Commonwealth 325 Pa. 497, v. Stelma, Commonwealth A. 327 Pa. 17; 317, 192 Kelly, v. Commonwealth 333 Pa. 4 A. A. 906; 280, v. Guida, supra; Commonwealth Common- 2d 805; v. Frisbie, icealth Common- 342 Pa. 20 A. 2d 177, 285; v. Elliott, ivealth Com- 349 Pa. 37 A. 2d 582; Pepperman, v. monwealth 45 A. 35; 2d Wooding, Pa. 50 A. 2d 328. Almeida case there was reported Until no in- in this State of a ever jury been having stance in- the trial of an indictment for on murder structed killing occurring contemporaneously perpe- a with the tration of a the defendant was regardless murder of the fact that the fatal shot was by person acting hostility fired a third and resistance opposition to the felon and in deliberate to the success undertaking. felon’s criminal contrary, Thompson, On the in Commonwealth v. 184 A. which involved a conviction 327, 330, degree penalty of first murder with the de- death, by fendant contended that the victim a was killed by neighbor bullet fired a in an effort to resist the attempting burglar- defendant’s armed while assault, appeal ize the home of the deceased victim. On this complained judge the defendant that “the trial court, present adequately jury did not to the the evidence support of his contention that the bullet which killed neighbor’s] pistol, [the [the fired from deceased] was greater length emphasis but reviewed at and with opposite supporting theory evidence of the Com- affirming In monwealth.” this court conviction, complained “. . . said that when the statement portion preceding charge, read with the of his it is judge impres- convey ... clear that the trial did not had sion that the doctor testified the decedent died gunshot particular from a wound inflicted pistol. charge An bullet or examination of the in its very entirety jury instruction discloses that the careful beyond must be a reasonable doubt that the satisfied (Emphasis sup- shot caused the death” defendant’s plied).

Again, in Commonwealth Pa. Mellor, 339, 342, degree 144 A. which likewise involved a first major penalty, with the death murder conviction trial the innocent defense at was victim of a attempted shooting robbery by in connection with an (and confederate) accidentally the defendant was police revolver of a officer killed a bullet from a attempting repel In assault. the robbers’ felonious charged jury judge submitting “the trial the case to the jurors deceased] killed [the if believed that, policeman’s] de- [the [the shot from revolver, acquitted.” an this fendant] should And, court, opinion impliedly by Mr. Justice Chief Moschzisker, apрroved the instruction. expressed Pennsyl-

The rule thus followed Almeida, prior case in other vania to the was the same jurisdictions and still so to be. common-law continues ' (7 Allen) Campbell, In 89 Mass. Commomoealbh on an indictment for murder for a homicide armory during near an in Boston a riot committed grew which out enforcement the Civil War the Commonwealth’s evidence showed that draft, participating military in the a riot; defendant was suppress force was called out to the riot and was armory; in and that stationed the mob was fired by by on the soldiers and the soldiers were fired on The case tried the mob. before Chief Justice Justices and and Hoar Bigelow Merrick Metcalf, Supreme Judicial Court of Massachusetts and was prosecuted by Attorney in General of the State requested person. Attorney General The the court jury as follows: [the instruct “That whether de by killed a shot from ceased] was within or without the parties armory, unlawfully engaged all in which resulted the homicide at transactions were guilty, manslaughter.” at least of common law The opinion by in was refused an for the instruction court part (pp. 544-545), said in Justice who Bigelow Chief guilty person can be held “No homicide unless the actually constructively is either or act and it his, by in be his act either sense unless cannot ‍​​​‌‌‌​​‌‌​‌​​‌‌‌​​‌‌‌​​‌​‌​‌​​‌​‌​‌​​‌​‌​‌‌‌‌‌‌‍committed acting in hand or some one his own concert with object purpose. him or of a common or in furtherance party Certainly an act of a that cannot be said to be principle, just legal any on sound or sense, by any only is not not done or him, a enter or connected in common whom he associated accomplish prise, attempting but end, the same or person im is his direct and is committed who adversary, when and at the moment mediate who is, engaged actually alleged act is done, criminal opposing resisting him and his confederates object accomplishment of the unlawful abettors Suppose, example, they for which are united. attempts dwelling-house, burglar to break into a striving occupant, to resist while the owner prevent by misadventure entrance, the unlawful kills burglar in such case his own servant. Can the Cеrtainly guilty not.” criminal homicide? deemed particular Coming Chief Justice case, facts of the to the 547-548) (pp. “If the homicide was said that, Bigelow per by the soldiers or other of a shot fired the result against together acting armory, in defence sons assembly, defendant cannot be held the riotous manslaughter. jury of either murder they accordingly instructed unless are that, be will beyond doubt that the deceased a reasonable satisfied weapon gun deadly by of a or other killed means prisoner, or of one of the rioters hands of acting, he is entitled associated and he was with whom acquittal.” an to People, Ill. 18 N.E. 338, Butler v.

In persons, with two other Butler, Franklin William and killing charged of an innocent murder for the with were by by Ms the town marshal in bystander a shot fired rowdy suppress conduct of the Butlers to effort . Camp Citing companions Commonwealth v. and théir pói-Ut, supra, Chief as-a-casé Justice bell, Ckaig, Supreme speaking for said Illinois, Court “. . no rule law which . know of well-settled we [the hold for the would the defendants liable acts responsible They for what marshal]. town would be consequences might they as themselves, did such naturally they but conduct; flow from their acts encouraged, never assented the acts of advised, they nor him [the town did combine with marshal], they any to do unlawful nor did manner act, anything they he assent and hence could did, not responsible for his toward conduct the deceased.” rowdyism companions of the Butlers and their prin- felony. was a misdemeanor not a But, ciple involved is same far so as the defendants’ responsibility criminal for the marshal’s unintention- killing person al of an innocent third was concerned. acting At common a homicide committed law, (at in furtherance of a misdemeanor one malum least se) voluntary manslaughter (see is, token, like §74), imputed being malice Warren, Homicide, felony. initial since the offense was anot And so, jury voluntary manslaughter. Butlers convicted the Supreme judg- Court of Illinois But, reversed the quoted, for the ments reasons above that criminal viz., responsibility imputable wrongdoer is not to a for the resisting effect homicidal officer’s accidental or bystander. unintentional of an innocent n Ky. In Commonwealth v. Moore, 88 S.W. Kelly, the defendants, Moore and assaulted John Young Young gun with the intent rob him. drew k discharged to defend himself, it and acci dentally Young, bystand killed Anderson an innocent er. The indictment murder was dismissed appealed. trial court the Commonwealth The Ken tucky Appeals approvingly cited Court the eases of Campbell People, Sutler v. su “learned opinion termed the from what it quoting pra, in the Camp Massachusetts” Court of Supreme indictment, dismissal of the bell and affirmed the case, “Here the homicide of its support action, saying in the pur either conspirators, committed by re at but it ivas the all; or conspiracy suance of propri John Young, on the part sult of action of the opposition conspiracy, etor of the house, the con hopes to the wishes entirely contrary homi be In order that one may guilty spirators. done him or con by actually the act must be cide, crime be cannot unless the be, and that structively, some the hands of his own or hand, committed by of a in furtherance him, concert with acting no can in The defendants object purpose. common John Young, to have aided or abetted sense be said hold them responsi at and to them; for he was firing of a accidental death bystander, for the ble criminally the rule would be carrying of his bad aim, out growing of others for the acts beyond responsibility of criminal by an innocent instead of reason. Suppose, all had of the proprietor Young stander, house] [the the [surviving would robbers, one of Moore, killed This query posed of murder?” been guilty have robber] the instant but the case, present question the very answered rhetorically Appeals Court of Kentucky principle “And if the follows: yet, as in the negative be the Commonwealth maintained to be sought of mur necessarily survivor would sound, house be robbed had the owner because der, just could as be said truly he companion, his killed the owner of the house abetted aided and have in this.” as that case N. 122 S.E. 568, C. 658, v. Oxendine,

In State and killed a man shot was accidentally a bystander the defendants an attack by himself against defending indicted, killing. for murder for the were and tried who mаnslaughter general A ivas re- verdict of appeal by to all On one of them turned as defendants. Supreme (Oxendine), North Carolina, the Court of upon Campbell, cases, Butler and Moore reliance the ground supra, “Wal- the conviction on the that reversed appellant] Locklear and Proctor [the ter Oxendine acting in shot] man who fired the fatal were not [the general they adversaries; and it is the concert; were person may criminally held rule of law that a not be responsible killing for a unless the homicide were either actually constructively by him; or committed and, by his it must be committed his own order to be act, acting in concert with or someone hand, him, design purpose.” furtherance of a common People In v. 254 N. Y. 489, N.E. Udwin, escaped some convicts were indicted for the murder who was shot and killed in at- one of their number escape. escape tempting prison In from New York, during per- felony committed the is a petration degree is first murder. Evidence fired fatal shot was circumstantial. The as to who convicted of murder in the first de- defendants were gree. appeal, contended Udwin, On defendant, possi- did not exclude all evidence reasonable fatal shot was fired someone that the other bilities conspirators. Appeals of the The Court of than one approved “the law of the ease as what it termed stated justice” charged who had that it was the trial prosecution “beyond to establish a rea- burden [the deceased] shot which killed doubt that the sonable engaged by one of the convicts with the de- fired purpose a common them, or some or de- fendants, escape.” feloniously unlawfully sign The de- question ap- on convicted; and, were fendants justify peal was sufficient the evidence was whether process By Court elimination, verdict. Appeals conclusively from the evidence found have fired killed deceased could been shot which implicit only by escaping convicts. It is one of the finding opinion possible contrary that a would required a have reversal of the convictions. People Garippo,

In 292 Ill. 127 N.E. sur- viving charged murder of an robbers were with- the accomplice during had met his who the course death, person robbery, In at the hands of a unknown. along that defendants, with the case, Scalzitti, engaged highway robbery. During prog- had in a robbery, ress of the and was shot Scalzitti, leader, judge jury killed. The trial submitted the case having on the basis a death occurred in that, the course robbery, guilty all of the robbers were alike guilty homicide. The defendants were found manslaughter. appeals, On the defendants’ the Su- preme discussing quoting Court of after Illinois, and approval Campbell, from the Butler and Moore supra, holding reversed cases, the convictions, reasoning “Under the of the above instruc- authorities, given tions and 19 on behalf of the State and com- plained by plaintiffs counsel for in error must be held plaintiffs erroneous. Under those instructions, might responsible in error shooting be held for done person by another when there was no concert of action him between and them.” long recognized sedulously applied

The rule and country, the courts of this Campbell, of which the But- supra, ler and examples, Moore, cases, are notable aptly Ruling pp. stated in 13 Case Law at 753-751as persons conspire follows: together where “Thus, robbery, carrying commit conspir- while out such acy discharges their victim, self-defense, a fire arm at his accidentally bystander, assailants, kills a conspirators To are not the homicide.” suggested,

say, above cited as has been that the cases only holding affords are the decisions so and discussed specious implication. only There an unwarranted has disclosed, been cited to nor our research us, has not England, State of the Union, a decision except opposite de- for this court’s that holds to effect v. Almeida and Common- in Commonwealth cisions v. Thomas. wealth testimony in the Almeida case that

There was This fired one of the robbers. lethal bullet was disputed by it was the defendant who claimed that policeman’s It was in that situation from revolver. jury charged the defendant that, court engaged robbery having in a at the time of the been killing, first de- to a conviction of it was immaterial gree bullet was fired some- the fatal murder that accomplice. As or an than the one other defendant judge authority the trial relied instruction, this Moyer Byron, upon in Commonwealth a dictum jury Almeida 2d convicted A. 736. Pa. affirming judgment degree of In murder. of first an or un- declared that accidental court this sentence, perpetration occurring during intentional feloniously engaged robbery in the those rendered of a degree even robbery guilty murder the first of by any inflicted though not fatal wound was acting ,the The in their behalf. or some felons adaptation lay pronouncement in an of this rationale (as proximate cause known to the doctrine of the requirement felony- torts) common-law to the law applicability prerequisite of the to the as a causation opinion spe- this court’s felony-murder Thus, rule. Moyer-Byron in the “Our decision cifically that avowed long prin- application established anwas case proximate act is the cause felonious ciple he whose responsible criminally another’s death is for that society exactly he death and must answer to for it as negligently proximate who is cause of another’s responsible civilly must death is for that death and damages already seen, for it.” As have answer we requirement responsibility in a the “causation” for felony-murder is com- that the homicide stem from the analogy felony. Obviously, mission of the the assumed requirement concept tort-liability between that and the proximate cause is conclusive. If it then were, supervening for centuries, the doctrine of cause, which, operative ques- recognized and rendered on courts have proximate tions would have be considered cause, passed upon by jury. qualification, and But, entirely disregarded. the Almeida case Beyond opinion the statement in the for the that, court in the Almeida case that “Our decision in Com- Moyer Byron, supra, authority monwealth justification. our in this case” was decision without expression Moyer Byron opinion in the opinion which the Almeida thus alluded “A was that engaged man in the or men commission of such a robbery as can be cоnvicted of murder in the de- first gree causes if the bullet which death was fired not repelling intended the felon but victim in aggressions of the felon or felons.” That statement palpable gratuity as an was a examination of the trial Moyer Byron, case will record at once dis- close. general charge,

In its the court submitted Moyer Byron case on the basis in order to that, jury beyond would have convict, find, a reason- that either one or the able other of the doubt, defend- gaso- fired the bullet which killed the ants innocent subject- attendant whose death was line station the indictment. in matter of the the court And, addition, qualification second, affirmed without the defendants’ point charge for as follows: “The defendant is entitled acquittal produced the to an unless commonwealth has prove quality beyond as a reason- evidence of such causing doubt that the bullet the death of the de- able gun the the defend- ceased was fired from of either of charge at the conclusion of the ants.” Furthermore, reading jury to the the above-mentioned and after point judge, trial at the insistence as the affirmed, repeated jury to the ver- for the defendants, counsel requested Naturally, nei- instruction. batim this same judge any charged Moyer Byron trial the ther nor regard law concern- to his instructions on the error in necessary jury ing relative find, what the defendants could the fatal before shot, fired to who attorney did the district murder. Nor be convicted judge argue that the trial or even intimate at time favorably jury charged to the defendants more had indisputable that fact is have. should than he was immaterial who fired that it the contention in court below the raised never shot was fatal point Consequently, Byron re- Moyer case. was said quired this court. What discussion no opinion Byron in such connection Moyer was, opinion expression an more than no therefore, concerning a matter coram view individual writer’s charge, light the trial court’s judice. In the non be taken jury’s that case cannot to mean verdict by fatal bullet was fired than otherwise conspir- of their criminal in furtherance felons acy. Byron Moyer the deсision

It follows ruling authority in Al- for the no sense case was be said for the decisions can same And, meida. v. Doris and v. Commonwealth Guida, Commonwealth supra. Sterling, In each of those cit.

507 par- death-dealing cases the act committed was ticipating felony. in the initial The cases of Common- Phillips, wealth v. Pa. 372 93 A. 2d Com- 223, 455, Lowry, monwealth v. 374 A. 2d Pa. 733, lately having the have been advanced as reaffirmed ruling germane. presently in Neither are not Almeida, dependent any way in those cases was related to or upon Phillips the in the Almeida In decision case. the pleaded charge defendant of mur- the case, actually admitting that he himself had fired der, sup- Lowry fatal case the evidence while bullet, ported finding by jury that the defendant was co-conspirator of the felon who fired the fatal shot. Al- Neither of these cases involved the rationale of the meida case.

The out-of-State cases cited and relied on in the opinion equally point. For ex- Almeida were not ample, “shield” in the so-called where a felon cases, per- interposition body of an innocent uses the escape flight from his harm the scene of son to express. e.g., Keaton State, the malice See, crime, Taylor v. R. 57 S.W. 1125; 41 Tex. Cr. State, 55 S.W. and Wilson v. 961; R. State, Tex. Cr. (Ark.). In one of those cases 2d 100 not was S.W. imputed by participation the defendant’s malice Obviously, they felony. were not based initial theory. felony-murder the courts which Indeed, on recognized validity expressly cases those decided Campbell, principles in the Butler enunciated principles supra, such but found Moore cases, then before factual situations pertinent because person innocent as a shield (viz., of an the use them against of an ad- the hostile bullets breastwork express findings supported malice. And, versary) regardless felons’ motive of whether the sowas position of mortal in a victim placing innocent an fired at shots from themselves protect was to danger all. shoot at not to their adversaries to induce them or in either express than be no less would The malice event. justify v. Bolish, supra,

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

The occasion of Commonwealth v. repudiation for the su- Thomas, we uoav overrule as an expressly which pra, unAvar- extension of the judicial ranted rule. felony-murder no one has suffered as Fortunately, any penalty a re- case. holding sult our Following re- the record the Thomas mand of the case, district the trial court moved for leave to nol attorney pros indictment. The approved the murder court mo- prosequi and a nolle was duly entered. tion, At accepted the court same defendant’s time, plea to an indictment him charging Avith rob- armed bery unquestionably guilty of which he was immediately committed he was sentenced and serving penitentiary his sen- to he is now where v. tence. Since we overrule Commonwealth herewith present appellant’s con- it follows that Thomas, basis viction of murder be sustained on cannot the decision in that case. entire- that,

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

It is, instant case on the basis of Almeida between the victims of the in the character of difference legally significant homicide is more incidental than is con- so far as to the rule relevancy felony-murder at 56. In other op. p. cerned: cf. oit. Morris, supra? if can be for for killing a felon held murder words, during though course of a even occurring felony, the death of the felons but was inflicted someone it should make acting hostility them, no the crime who difference to of murder the victim happened the homicide to be. the factual However, so admits noted, recognizable of a distinc- difference, tion to a felon’s respect for an in- responsibility has de- (which cidental another committed), justifiable was pending whether homicide upon and such distinction serves the useful excusable, pur- further pose thwarting extension of the rule enun- ciated in Commonwealth v. Almeida that it is imma- the fatal terial who fires shot so as long the accused engaged felony. limitation we thus on the place decision case the Almeida renders unnecessary any present reconsideration extended holding that case. for enough It will be time in such action regard if and when a conviction murder based on facts similar to those presented by Almeida case (both as to the performer the lethal act and the status its vic- | tim) should come again before this court. of sentence Judgment reversed and record remand- ed with directions the defendant’s motion in ar- judgment rest of reinstated and thereupon granted. Concurring Opinion Mr. Justice Cohen: I concur in the reasoning result of the majority opinion- in the reversing judgment in conviction Commonwealth v. Redline and in the overruling prin- in established Commonwealth v. ciple Thomas, 117 A. 2d 204 I (1955). believe However, did not far I majority go would enough. also over- rule our in decisions Commonwealth v. Almeida, Pa. 68 A. 2d 595 (1949) Commonwealth v. Bolish, Pa. 113 A. 2d 464 (1955).

To me a conviction of murder in the first degree upon the theory felony-murder depends upon combination of the following elements —all of which are essential.

1. There must be a homicide.

2. The homicide must have been committed an act of the defendant or, by applying “co-conspira- tor’s one rule”, by concert him in the acting furtherance of the criminal conspiracy.

3. The criminal undertaking during which death resulted must have been a common felony (a law felony).

In such circumstances rule felony-murder op- erates to supply element of malice aforethought to the homicide so as to make the homicide murder. Where the murder was committed course arson, rape, burglary, robbery, kidnapping, murdei*” Pennsylvania “degree statute applies to make the murder one of first degree. All other felony-murder perpetrated the course of the above enumerated felonies is murder in the second de- (Act of June P. L. gree. 24, 1939, 872, §701, P.S. §4701.) above,

When Almeida is weighed against re- is apparent quirements the decision cannot stand because the homicide therein was not “by committed an act of the defendant or, by the co-con- applying rule, acting concert with spirator’s him n furtherance conspiracy.” re- these weighed against Bolish likewise When is of decision is that apparent it also quirements, ‍​​​‌‌‌​​‌‌​‌​​‌‌‌​​‌‌‌​​‌​‌​‌​​‌​‌​‌​​‌​‌​‌‌‌‌‌‌‍no homi- in cаse because stand this Court cannot cide was committed. escape attempting

In Almeida the defendant battle a provoked gun scene his robbery from the killed shot and party a third was police with which act The policemen’s officers. pursuing one of That excusable shooting, excusable. was shooting for the Almeida liability upon cannot confer however, must have been “The hilling of a third party. death an accomplice done by confed- defendant erate or by acting felonious furtherance ” “In ad- opinion 496). page under talcing. (Majority it is to remembered at all a judging felony-murder, felon imputed to a for thing times not his is malice and incidental killing opinion 495) (emphasis act hilling.” (Majority page Almeida commit original). Since himself did not did in concert homicide, anyone nor acting that Almeida not have him so follows should do, (See convicted of murder. the numerous cases been opinion pages 486-510). in Majority cited Bolish case, In the acciden- conspirator, Flynn, killed himself in the perpetration of an arson tally his remained with- co-conspirator, defendant, while Bolish also should not have been convicted of out. because no homicide was murdér committed. “Homi- intentional does include or accidental cide self- I Homicide 164 Warren, (Permanent destruction.” ed. 1938) (emphasis supplied). Homicide is “the killing (See another.” cases one human cited Majority 498). pages 492, 493, opinion Thus, requirement establish first for a failed convic- there no felony-murder; being tion homicide, there murder. no was not Flynn crime accidentally himself. Bolish, therefore, li- although equally able for all of his co-conspirator acts furtherance cannot be held conspiracy, responsi- criminally ble for an act of his co-felon the act does not bring if upon the liability co-conspirator himself.

In the other in which this only reported opinion issue was presented to an court for deter- appellate v. mination, People 203 265 Pac. 230 Ferlin, Cal. Supreme the California Court on facts (1928), held, similar to those of the Bolish substantially case, the acquitted accused must be murder. And Peo- of 287 ple N. Y. LаBarbera, Supp. (Sup. Ct. facts akin again on to those of 1936), the Bolish case, it was held that under the York New Penal Law the accused was not guilty of murder because there was person by killing no another. of I be a might compelled to different conclusion the Bolish case as the if, majority opinion suggests, pointed the evidence inescapably finding Flynn compliant was a dupe Bolish’s hands and sent Bolish into a knowingly by situation likely his death.1 cause However, evidence does such a nor justify conclusion, was this hypothesis and submitted explained to the clearly as jury the sole for a of basis conviction murder under the evidence Bolish case. presented standpoint public

From the policy what purpose result reached is served majority “. . case? . deterrent Bolish effect such a [T]he is very doubtful; result punishment increased at wrong thing at the harm strikes intended, —not deliberately places One “commits” a homicide if he another position deadly peril independent in a from an agency force or thereby and death results. greater an unintended chance of at the slight

but insufficient are an harm; vengeance and emotions mens fictional attribution for the justification of killing murder the act certainly rea of itself] [and not a desire quite desire was certainly one whose for the Felon’s Morris, Responsibility to kill.” 105 U. of Pa. L. Rev. Acts of Others, Lethal (1956). new criminal liabili- point out, as the majority

If, rather than imposed by legislature ties should then the decisions both formulated court, Almeida should not be to stand. Bolish and allowed no had decisions in these two cases defendant Until the murder for held either acciden- ever been or for the excusa- fellow-conspirator self-killing tal an of an innocent officer party by ble both deaths while felonies though law even occurred That of the being so, liability were in progress. in Bolish and Almeida defendants for murder can only piece judicial post of a ex be the result law- facto acts which did Criminal not warrant convic- making. at the time of their commission tions of murder should be held this Court to constitute not later murder. I overrule Commonwealth v. Almeida would v. Bolish. Opinion Dissenting Mb. Justicе Bell: The brutal crime wave which is sweeping ap can be halted if the Country our Courts palling only and stop communists stop coddling, freeing murderers, on and criminals technicalities made of straw. The have seem to á forgotten Court's Justice citizens and law-abiding one-way law-abiding street — are at entitled, eommunitiés least with crimi equally . protection tó thé l nals, aw and well murder doctrine was clearly which principles established Pennsylvania by legal old and in particular by are several hundred years decisions Court of hand- Supreme Pennsylvania ed in the last ten are directly down years con- point slightest doubt, without sustain, Faith in Justice, viction of this murderer (Eedline). and confidence and trust our Courts are seriously these recent and notable decisions of when impaired this as well as established long principles Court, and overruled or discarded —not repudiated law- are n for the or for other protection worthy of society further to individuals protection but to objective, give our peace who are defying laws, destroying the welfare of our communities. jeopardizing Worseck held up gun-point persons Eedline and at Eestaurant disarmed Eeading. in the Midway They police and held two officers. then captive They fled, man named accompany a Herschman to compelling him to use as a shield. Some obviously intending them, whereupon saw Eedline aimed 45-cali- officers a them, at a who was 15 to 20 feet policeman ber revolver and fired but failed to hit his in- point-blank away, tended victim. Eedline was the first one to shoot. The and in returned fire policeman ensuing gun Eedline and Worseck in- policemen, battle two were policemen seriously. Worseck died from the jured, bullet from policeman’s wound inflicted a gun. can free Eedline only The majority by performing operation colossal on the surgical felony murder law disastrous pub- to the Pennsylvania damage —with lic.

In Order to Free Eedline of Murder has to present majority overrule (1) expressly and important recent very controlling mur felony der decisions this Court namely Commonwealth v. 516 68 A. 2d lead 362 Pa. 595 596, (1949),

Almeida, murder which subject of felony modern case on ing quoted approval by has since been and affirmed v. in 4 recent Commonwealth decisions, this Court Pa. 53 A. 2d Common 736, and 357 Moyer Byron, 181, and Pa. 113 A. 2d Com 464, wealth v. 381 500, Bolish, Pa. 117 2d 204 monwealth v. 382 A. 645, Thomas, the ma which years ago) down two (handed only Redline’s convic sustains unquestionably admit jority tion ;* all the repudiate has to present majority

(2) upon and fundamental principles basic reasons predi- murder decisions were prior this Court’s felony Pa. v. and Moyer Byron, cated in Commonwealth v. 362 Pa. (1949), in Commonwealth Almeida, (1947), 98 A. 2d 733 v. 374 Pa. Lowry, in Commonwealth (1955) v. 381 Pa. in Commonwealth (1953), Bolish, 382 Pa. (1955) ; v. Thomas, and in Commonwealth has the conten- adopt (3) present majority which have been and repeatedly tions and theories convicted murderers ten strenuously argued by careful were but after which, very consideration, years, rejected refuted and this and completely utterly considered and comprehensive in five carefully Court opinions. of these facts it is

Because necessary carefully principles review the thoroughly analyze its and most origin murder, development, recent cases inter- all, Pennsylvania important * Almeida, Pa., supra, Commonwealth v. Commonwealth v. Thomas, Bolish, Pa., supra, Pa., Commonwealth v. su- pra, according concurring opin- would have to be overruled to the Redline; in Commonwealth v. and Common- ion of Justice Cohen wealth v. Bolish and Commonwealth v. Thomas would have to be according dissenting opinion to Justice Musmanno’s overruled Bolish, 138 A. 2d 447.

517 fallaciousness in order demonstrate preting it, opinion. of the majority and untenability that when decides opinion specifically The majority the en- to kill a attempt policeman robbers two po- killed one of robbers is siling gun-play of mur- convicted robber cannot be other liceman, is justi- a justifiable killing, i.e., der because it ma- us examine how the kill a robber. Let fiable to reaches that conclusion. opinion jority Blaekstone To Murder According Law Common its back and bases opinion goes The majority 1765. circa Commentaries, Blackstone’s conclusion on Lord Chief Sir Edward Coke, from quoting Blaekstone, “ ‘When thus defines murder: of England, per Justice discretion killeth unlawfully memory son of sound and under the being, king’s creature reasonable im express either or aforethought, malice with peace, §195, ”: IV Blackstone’s Commentaries, page plied’ the majority “malice, express 1591. We with that agree “hall-mark” of murder both Black implied” is the IY Blackstone’s today: Commentaries, stone’s day v. Commonwealth 381 su page 1596; §198, Bolish, Pa., 362 supra; v. Almeida, Com pra; Pa., 74 A. 2d Dorazio, monwealth v. Com 125; monwealth v. Thomas, Pa., supra; Commonwealth 2d Pa. 47 A. v. 445; Commonwealth Malone, 58 Pa. 9. Drum, We that the law of note, parenthetically, Pennsyl with murder, vania dealing including felony murder, advanced has naturally beyond Blackstone’s keep in order to pace modern day conditions of even society. However, Blaekstone furnishes au no for the thority majority’s opinion or conclusion. For Blaekstone that an example,, says accidental unin is an homicide excusable tentional homicide page (§182, examples then gives But Blaekstone seq.). et admits— which demonstrate —and the majority opinion mean statement or of law did not proposition this ac not that all and does mean then, certainly today, or An cidental homicides are excusable. unintentional, i.e. an accidental or unintentional homicide excusable, was even Blackstone’s and many interpreted, day times' then in since to mean Pennsylvania,* an include accidental or unintentional death which arises out or results a homicide committed from a For during example, Blaekstone felony. says: “. .. if one do intends another and un felony, kills a this designedly is also murder”: IY man, Blackstone’s 1599. Commentaries, §§200-201, page lie gives then the classic illustration be which has come hornbook law to and every student, lawyer Judge: if one shoots A. “Thus, at and misses but him, kills this murder, B., though B. killing [even was unintentional because of pre accidental] vious felonious which the law intent, transfers from one to the other.” In other as words, Blaekstone points if A intends B out, to shoot but misses him and kills a or if unintentionally stranger, A, intending commit one of the crimes which were felonies at common law,** accidentally kills unintentionally a he is murder. man, This type felonious homicide became known as felony murder, as oрinion was majority admits, firmly imbedded in the common law even before Blackstone’s day.

* See cases infra. ** Bolish, Commonwealth v. 113 A. 2d tlie Court in a footnote said: “At common law there were 8 or fel onies, namely, murder, manslaughter, rape, sodomy, robbery, lar ceny, arson, burglary, perhaps mayhem: Marshall, & Clark (4th 1940) ; Wharton, §3 Crimes ed. (12th Criminal Law §26 1932).” ed. prin- The reason murder doctrine or for the ciple day today; as well as is obvious Blackstone’s necessary absolutely —it established as a wise and protection society. rule opinion majority un- admits, The as it must, Supreme Pennsylva- der the decisions Court of (1) prop- they nia.—unless are Bedline was overruled — (2) killing erly co- convicted of murder and justifiable qua by policeman robber was a policeman, qua but not the robber who set motion likely he knew would cause felonious forces which policeman proposed his death to co-felon or to bystander. majority, victim or an innocent at- escape inescapable tempting to these bases its facts, opinion upon syllogism: no Blackstone holds justifiable killing can be convicted for a and since one justifiable policeman during is kill a robber perpetration robbery, of a no can be convicted killing is of murder for one of the robbers. While it immaterial what Blackstone in view of the Penn- said, sylvania interpreting felony majori- cases murder, supported ty’s theory by is or conclusion not even Blackstone. page says,

Blackstone 1577: §177, “Now, homicide, killing of human is kinds: of three creature, justifiable, and no felonious. The first has excusable, guilt very share of at the second all; little; but the highest against crime third is the the law nature capable committing.” man that is Blackstone then . (a) justifiable gives examples (b) and homicides, killings some of the which were murders; considered day justi- murder in Blackstone’s would be considered today. fiable or excusable important probably example and most

The first justifiable given by hómicidé Blackstone is the case validly who executes a convicted an executioner cri'mi-' points out He then to die. is condemned nal who In is murder. wantonly or a traitor kill a felon murderer or a convicted a felon words, other if by X murder justifiable and may if committed be nowhere Blackstone Furthermore, Y. committed agree A not says rob could C, A B if intentionally or B B if was murder of during policeman rob- unintentionally shot bery. progressive; is not static —it the law

Moreover, efficiency growth, strength, and its its its its essence, indisputable law both in the civil fact that lie principles, particularly law the criminal principles enunciated and established the basic applied continuously different fac- to new or Courts are the domain of If that were so, situations. tual principality large and extensive as the be as law would progress would like a turtle. and the law of Monaco, examples axiom or self-evident truth of this Countless quickly everyone. occur to or will are familiar Pennsylvania Is Law Murder In Common Murder Legislature By And As In- As Modified The Supreme Applied By terpreted And Pennsylvania Court ' originally Pennsylvania law common Murder England common law existed at murder* as it days early subsequently and in the in colonial times Pennsylvania murder in But of the Commonwealth. solely longer as existed law murder it common is no early days subsequently in the times and in colonial courts have inter our First, this Commonwealth. of light preted conditions; of modern and in the murder * Drum, 9; Commonwealth v. v. Pa. Cf. Commonwealth 58 supra Thomas, supra. Bolish, v. 382 ; Commonwealth Pa. 381 Pa.

521 train-wreclcing in addition second, statutory death (1) crime of has made murder,* Legislature resulting or otherwise accidentally, unintentionally from common law misdemeanor of kidnapping, has murder in first and made a degree, (2) killing, perpetra unintentional or otherwise, accidental, of and arson, rape, tion statutory staUtiory statutory Commonwealth, murder first burglary, degree: Commonwealth, v. supra; v. 381 Pa., Bolish, Maloney, A. v. 707; 365 Pa. 73 2d Commonwealth 1, Gossard, 117 Pa. A. 2d 902. 239, and theory it true that our Nevertheless, remains from and of murder was derived initially our definition excep- is above statutory even with the today based, applied law as interpreted the common upon tions, Supreme the decisions to modern conditions by of These recent decisions Pennsylvania. Court of are to the fel- Pennsylvania key Supreme Court have- door —the key majority murder оny lost. forgotten * 872, 18 PS L. Penal Code of P. Section 919 Johnson, §4919; A. 2d 569. The v. Commonwealth majority opinion authorities its review of relevant commences power competent stating: only constitutional to define “The crimes. promulga- legislature, courts well to leave the . . is the do . repre- people’s legislátive police regulations to the chosen tion English' law The definition of murder at common .... sentatives except spe-. in this . . . for one . the crime State. . . alone defines presently death-dealing irrelevant mode of means

cial statutory train-wrecking, is there no crime murder intentional presently important, Pennsylvania.” Although not it seems inconsistent, and are that neither statements them me that these expressly murder has never de- It is true that been accurate. is Pennsylvania it been has sometimes said statute fined law But the latter statement is not murder”. “common Bolish, 509, 510, Pa. Cf. accurate. 2dA. 464. an

“Murder as an unlawful defined other with expressed implied: malice aforethought, 2d Commonwealth v. 365 Pa. 76 A. Buzard, 394”: supra. How Bolish, Pa., have the Courts of interpreted the words Pennsylvania in “implied how have malice”, particular, they applied the murder to principles complex felony situations our modern life? applied This'Court has murder doctrine and its basic felony principles five* cases in last ten which the murder years perpetration occurred of one of the statutory felonies. Each the recent murder cases after felony 1949 reaffirmed the decision of this Court the lead case of Commonwealth v. ing (1949) Pa. Almeida, at reiterated, usually great basic length, prin which that ciples upon decision was so and con clearly predicated. vincingly

We shall the recent analyze review mur- der decisions of this Court and the rationale and the fundamental principles upon which were they based.

Recent Cases With Pennsylvania Dealing Felony

Murder In Commonwealth v. Moyer Byron, 53 A. 2d 736 defendants’ conviction murder (1947), was sustained this held Court specifically rob-, if an innocent was killed bystander .a during it made no bery legal difference whether the bystander was killed one of the felons or one of the pro- victims. That posed case rules directly the Bedline case and sustains his conviction of murder. The Court : said 188 et (page seq.) “The second assignment error is based on the excerpt from the charge of the court which the jury instructed-that: ‘All of * this-Court; They were reiteratéd in another reéent decision of attempted robbery participants are in an degree is if someone killed murder first of in the perpetration the first-named crime. of the the course of Pennsylvania.’ of is the law of the Commonwealth That say appellants challenge that statement or the decedent not issue in this case is whether the by by the defendant his a inflicted met death wound garage Moyer by Shank. or owner question poses assignment wheth- “This of error legally be convicted not defendants can er or these from the if killed Zerbe came murder which the bullet attempt by employer in an revolver fired latter’s attempted robbery. We have him to frustrate the even under these which facts facts, no doubt that complained of concede, does not proper. conviction was engaged

“A man or men commission such robbery as can murder in the be convicted of degree the bullet which causes death toas if fired first not repelling but the intended victim felon aggressions . . . felon felons. mainspring malice is the “The doctrine when responsible for act the actor will held criminal though consequence any his act it was the one recognized ago when was was centuries intended page quoting Book IV, from held that, Blaekstone, ‘if shoots at A and misses him, section 201, previous is kills this because of the murder, but B, which law one to felonious intent, transfers from supplied). equally (Italics It is consist- the other.’ public policy and sound to hold that with reason ent attempt robbery burglary to commit when a felon’s chain events which were or in motion a should ‍​​​‌‌‌​​‌‌​‌​​‌‌‌​​‌‌‌​​‌​‌​‌​​‌​‌​‌​​‌​‌​‌‌‌‌‌‌‍sets contemplation his been within when motion have responsible any should be held he initiated, sequence by direct almost inevitable death For results the initial criminal act. individ- from prop- forcibly family or to himself or his his ual defend primal erty aggression is a human in- from criminal right duty both It is the individuals stinct. aggression and nations meet criminal with effective burglar Every when countermeasures. robber or knows attempts inviting hе commit his crime that he dangerous Any burglar resistance. robber or car- who weapons deadly (as ries most of them do and as these did) expects thereby robbers reveals that he meet opposition. and overcome forcible What this court said Commonwealth v. Pa. LeGrand, applies burglars, equally “Every about to robbers: bur potential glar pur ais assassin his and when felonious pose opposition encounters human his intent to steal weapon any an intent to Mil becomes and he finds at weapon Every hand becomes a of murder.” robber or burglar likely knows that a later act in the chain of inaugurates deadly he events will be the use of force against part him on the of the selected victim. For d whatever results legal that natural an follow from retaliating responsi use the must force, be held of felon proprietor gas For ble. Earl Shank, station Eidley Township, County, Delaware which at July being P.M. on 13, 1946, was attacked armed pistol to return the fire robbers, of these robbers with a proper he at which had hand was as and as inevitable as it was for the American forces at Pearl Harbor on morning December 7, 1941, to return the fire Japanese Japanese invaders. The felonious in vasion the Hawaiian on Islands that date was in proximate morals law and cause of all the resultant Moyer-Byron fatalities. The felonious invasion of the gas July Shank station on 13, was likewise the proximate fatality. cause of the resultant Earl Shank bullets fired fact “If responsibility killed Harry Zerbe, in self-defense his co-conspirator rests on and that Moyer for weapons with deadly who had armed themselves Byron, to rob Shank out their plan purpose carrying for the at Shank’s firing made murderous attack and whose him- protection essential self-defense them his ex- and property. If, and his employees self and kidnapped sees his child being father ample, expected normal as father would fire, opens and if the bullet he had a which gun available, do if kills kidnapper child, fires at he inadvertently of the child is attributable properly death of the kidnapper.” malicious act its its reitera- That case on facts but only of law principles directly basic application tion Bedline case and us compels and controls the governs conviction of murder. to affirm Redline’s v. was followed Moyer Byron Commonwealth Pa. Almeida, approved by A. as the 2d which became known leading In case, murder case Pennsylvania. rules the Bedline factually legally directly his affirms conviction of Almeida murder, case and policeman of murder when a killed convicted was a from bullet the another robbery by gun during no in We believe that case the history policeman. was ever as carefully considered, this Commonwealth discussed before the thoroughly Opinion debated that as Court the Al by distinguished approved was case.* The Chief Jus Court, speaking through meida comprehensive Opinion Maxey in a learned of 41 tice alia: inter “The Commonwealth contends said, pages, justified was in that bullet jury finding that diss,enter. Alvin was Charles Jones the lone * Justice Ingling by which killed fired one con- was of the three federates and further it is that immaterial whether by the bullet was fired one of them or it was whether policemen by repelling fired one of in the assault attempting of the bandits frustrate their es- cape. assignment defendant’s that

“The first of error is charged jury the court as follows: makes it no who even a shot was shot, difference fired if by Ingling [a passerby Mrs. who was wife fired deceased] was murder.’ Defendant’s second assignment of error is based on the court’s refusal to point charge, affirm defendant’s thirteenth for which you ‘If reads as find follows: the bullet which any by fired and killed the deceased was fired charged perpetrating the three men robbery question, you cannot convict the defendant degree.’ charge of murder ‘I the first ... will jury that it makes no difference who fired the shot, by Ingling, even if a shot was fired Mrs. it was still murder.’ charge judge

“In his the trial [fatal] said: ‘If that by anyone, anyone shot were fired even removed from participants, these three and that shot was fired perpetration robbery, jury, members of the degree. is murder; that is murder in the . . . first persons one or more set motion a chain cir- If persons out cumstances which death those ensues, responsible must be held death di- sequence, rect, almost inevitable results such from unusual . criminal act. . . if So, death of Officer Ingling consequence was the inevitable of the' unlaw- ful or act, acts, of the defendant, the continuation of the unlawful acting act, acts, the defendant, every in concert—for one who does an act unlawful is considered the law as the doér of all that follows result —if if the that unlawful act be robbery, kill- is a that that act members the killing, jury, is murder.’ ing

“The defendant’s which charge thirteenth point trial in effect a re rejected the was judge correctly that instruct in order to quest court jury convict the defendant of the of Officer death Ingling, would have to find that shot jury fatal fired one of the three robbers. Such an instruction by would have been in this Court’s decision defiance of in Commonwealth v. By Commonwealth v. Moyer 53 A. 2d decision the ron, 736, which trial followed. In judge dutifully that decision handed down on June this Court in an con 30, 1947, opinion held curred the siso by who heard the judges argument on ‘A man that: or men appeal, the com engaged mission such a as can be convicted robbery murder in the the bullet degree which causes first if death was by but intended fired felon victim repelling aggression of felon felons . . . when a attempt to commit or bur robbery felon’s sets in motion a glary chain events which were or should have been within his contemplation when the motion was he should initiated, be held responsible for death direct and almost inevitable se quence results the initial criminal act* . . . from * dissenting opinion We believe that Justice Jones’ in Com- Almeida, diametrically opposed monwealth v. present to his opinion specifically recognizes that a felon can be found accomplice of the murder of his even if the fatal shot was not felons, provided, fired one of the Almeida, as he stated in “it factually can found the conduct or Ms defendant accomplices among set in motion a chain events whose reason- son,ably consequences actually was a foreseeable stick as occurred.” accuracy In order to interpretation determine the of our position of Justice Almeida, quote Jonеs’ length we shall at pertinent parts dissenting opinion. of his (page He there said attempts

Every burglar to robber or he knows when inviting dangerous re- commit his that he crime is by in sistance ... If one of the bullets fired fact Harvey Earl Shank in self-defense killed the Zerbe, responsibility Moyer killing for that rests on and co-conspirator Byron, his who had armed themselves weapons deadly purpose carrying with of out for the plan their to rob Shank and murderous whose attack firing made Shank’s at them in self-defense essential protection employees the of to himself his property.’ his . . .

“The issue the in defendant raises this case factual by is identical the factual issue raised the defend Moyer Byron, supra; ants Commonwealth v. who fired fatal of wit, the bullet—one the robbers lawfully resisting a man who was the criminal attack legal question presented of the robbers? The de Moyer-Byron precisely legal cided in the case was question raised in the instant case; to men when wit, feloniously by who are shot at robbers return their person by fire self-defense and a third a killed shot fired defenders, are robbers whose shooting guilty caused felonious action of murder? Moyer-Bryon thorough In the case this Court after a C43) : “Whether acts of Almeida and his confederates were proximate killing a sufficient to constitute the cause of the question they proximate of whether law but did constitute the question jury. jury cause was a fact for . . . The that, should have been instructed to find order the defend- murder, necessary only ant it was not them perpetra- find the have been coincidental with the par- tion of a in which the defendant was at the time they ticipating would but that also to find have that the fatal or, them, shot was fired one of the felons if fired accomplices the conduct his set in motion defendant among consequences chain a events whose reasonable foreseeable 1eilling actually iras such as occurred.” question facts discussion of that under decided Moyer-Byron of that ‘The felonious invasion case, gas July the Shank station on likewise 1946, was (191 proximate fatality.’ cause resultant Pa.) authority.* of 357 ivas not but That dictum question fairly ‘Whenever a the course arises and there is a distinct decision trial, thereon, ruling respect in no court’s thereto can sense regarded H.R.R. as “dictum”.’ York & mere New Cent. L.R.A., 159 F. Price, 330, 332, Co. C.C.A. 1193. 315 See also Schuetz’s Pa. N.S., Estate, Moyer A. 865. Our decision 172 Commonwealth v. Byron, supra, authority is our for decision this case. ap- Moyer-Byron case an

“Our decision in the was long principle plication he established* of proximate is the cause another’s lohose act felonious responsible criminally that death and must is death for exactly negli- society it* as he is answer to who for proximate civilly gently cause of death is another’s damages responsible death and must answer in for that intervening ‘Though . . there is an active force it . will the result nevertheless be act, after defendant’s actively proximate act caused the if defendant’s intervening In such ease the defendant’s force. really continuing operation, by is active means force activity. . . it stimulated into Defendant force * immaterial, Although question is academic (and composed then Bell since Justice who that Court Justices Thomas, concurring opinion Pa. in Commonwealth v. in his dictum; 204) specifically not more held was 117 A. 2d this long principle over, of criminal it was not new but a established however, man, §197, page said, does “If a law. Blackstone 1594: may be, probable consequence act of such an murder, although eventually is, killing may death; no such be primarily ...” and no be intended stroke be struck himself his may by conduct so person affect a or an animal as to stir him into action; the result of such action chargeable defendant . . .’ “Justice Holmes in his book on ‘The Common Law’, (36th Ed.) 56 and pp. said: Acts should judged by their under tendency known circumstances, the actual intent which accompanies . them . . object ‘The of the law is to prevent human life being endangered or taken . . . the law requires at [men] their peril to know the of common teachings experience, just as it requires them to know the . . law . the test murder is the degree danger attending life act under the known circumstances the case.’

“Courts the United States, England and Canada have applied the foregoing рrinciples ‘proximate cause’ in murder cases, as the cases now to be cited reviewed this opinion demonstrate.

“The principle proximate cause in criminal cases applied of the ablest of Pennsylvania nisi prius judges years ago, wit, President Judge in the case of Commonwealth v. 2 Pa. L. J. Hare, King, Two (1844). separate bodies of men were fighting each other with firearms in a public a street and as King result a citizen was killed. Judge held that the members of both bodies of men were of felonious homicide. At the trial of Isaac one of Hare, the rioters, King aon of charge President murder, Judge instructed the inter as follows: ‘If jury, alia, during such a scene violence unlawful an innocent third person is slain, . . . such a homicide would be murder at common in all parties law the engaged the It would affray. be a the consequence of an homicide, unlawful act, and in such all an act are alike participants responsible consequences. for its the law should be called If to detect the upon particular whom agents by such has perpetrated a been in a slaying combat general (cid:127)justice and toould perpetually this it hind, defeat . . Shall the violators to . immunity guilt. give produced have acts whose unlawful public the peace, from the because death of unoffending, escape, the the to tell from lire it is impossible manner and time of the was propelled? of death implement quarter what : such outlaws The declares not. law Certainly consequences in all tlie are involved equally you there Is safety. the public peace assault on your just regard in this Does not principle? hardship application? its strict to the demand general safety ... time Joseph . . . Eice Avas killed at a when Avere maintain- belligerents are both probabilities fire each hence other, ing desultory upon Avhiclx accuracy difficult to say positive becomes with escape the market he killed. Are at party his a doubt whether consequence raising death by Jefferson Street, a shot from their at opponents road, court and the Germantown Harmony may killed 'each all stating him?’ After have the consequences liable for all flowing are criminally King such acts unauthorized vengeance’, Judge from 'Such be the founded on said: Avebelieve to Iuav, expediency, clearest plainest justified by reason, obvious necessity.’ (Italics and demanded the most . . . supplied.) instant principles

''Applying aforegoing band of robbers in an we have a engaged exchange case, whose it is policemen duty to subdue city of shots with the n In bmidits the course of the possible. exchange if Officer slain. Ingling police bullets deadly charged because any wrongdoing men cannot of bullets exchange their Avith participation justifiable was both bandits self-defense their The felonious duty. acts performance of shots at the Avell firing policemen, knoAving robbers been, their fire would be as it should have returned, proximate Ingling’s was the death. cause Officer proximate cases “The doctrine of cause in criminal applied by Supreme of Tennessee Court (1927). Letner v. 299 S.W. 1049 The were State, facts youths crossing that three were a boat at river a dangerous point. a in the When the boat about ivas standing middle the river western someone above the boat,. bank into shot the water about six from the feet whereupon A second shot hit the water nearer the boat youths jumped causing out the boat to capsize occupants as a result of which the two other were drowned. The man fired in- who the shot was dicted for murder. The defense contended youths capsizing death the two was caused occupant of the boat the third and that this act supervening constituted cause. The held that Court consequences the defendant could not avoid the of his wrongful by relying supervening act aon cause which naturally proximately resulted from that act. The ‘. . . wrongful Court said: in the instant case the act firing boys the defendant; that at is, or near the proximate producing was the boat, cause, responsible primarily cause, the cause that was the death of . . deceased.’ . ‘Defendant’s act or omis- sion need not be the immediate cause of the death; he responsible is if the naturally direct сause results from his conduct.’

“Under neither the common law nor our statute killing an accidental murder. It is felony. not even a uniformly Yet this Court has held that an accidental perpetration attempt perpe- or the robbery burglary any trate other of the enu- degree. merated felonies is murder in the first person any committing reason is that or attempting major of these commit, felonies is motivated

533 being directly of a human and the killing malice when his from malicious intended, even results, though is the essential element malice, it murder because act, Malicious act murder is The felon’s of present. his perpetrate, planned to or perpetrating attempting the law as is major justly regarded by crime In cases this of homicide. of causative antecedent its hand on the person kind puts punitive society cause. This for the blamable doc- responsible legally law. . . . is authoritatively recognized trine has that our the case argued opinion “It been v. v. and Commonwealth Moyer Commonwealth of our instant are opinion and case supra, Byron, no of a than are more They ‘novelty’ ‘novel’. v. supra. of this Court

opinion Doris, ‘novel’ than was the first decision are no more They that even an accidental ever held perpetration robbery attempted perpetration is degree. is murder in the first That or burglary this Commonwealth: Commonwealth the law of now A. 274 Pa. v. 24; Commonwealth Lessner, v. A. 337 Pa. 2d 431. Kelly, decision at as novel as was the first are not They ‘A’ him if shoots at and misses that one common law previous because of the murder, kills this ‘B’, law from to which the transfers intent, felonious IV, Book section page 1599, (Blackstone, other. 201.) said is here: applicable

“What Justice Cardozo far upon are called how say they [judges] ‘when extended or restricted, they rules are existing its direction society path, let must fix welfare . . final of law is , The cause its distcmce . . utility, . Justice and general society* welfare * expressed by philosophy basic was. note the same We that Parker, Mósohzisker in Commonwealth von Justice Chief objectives

such will be the two will our direct judges H course.’ Justice Holmes said: think that the adequately recognize themselves have failed their duty weighing advantage.’ considerations social cjustice’ “There can be no doubt about the hold ing degree murder in first who felon engages robbery burglary thereby inevitably in a against calls into action the ac him, forces defensive tivity which result in the a human death of forces being. can Neither there be the doubt about ‘general utility’ ruling of a which holds this defendant Ingling, Almeida of the murder of Officer even if it had been established that the bullet which killed police that officer was fired one of the officers who returning were the Almeida fire of and his confederates attempting prevent escape. and were to their . . . feloniously maliciously “A knave who a/nd ‘a starts liuma,n dangerous chain reaction’ acts must life responsible be held the natural results fatal such acts. This is the doctrine enunciated text- the (cid:127) book writers on criminal and has law, which been applied by the. courts . . .”

If the decisions of this Court Commonwealth v. Moyer Byron and and Commonwealth v. Almeida, applied long legal principles pro- which established law-abiding law-abiding tect citizens and communities, people displeased Pennsylvania, Legislature the according opinion’s majority and to the could, view, passed changing should have an Act the law and ab- solving dangerous robbers and other criminals from- a perpetration robbery, which occurred in of a Although unless one of the robbers fired the fatal shot. 144, 154, judicial knowledge Pa. 143 A. 904: “. . . we take of. designation fact that offenders [habitual have criminals] general law, only seripta become so not lex but non scripta, prótect society against advance to must them.”

535' namely, times thereafter, met Legislature many tó 1951 April 2, 1949 to 28, 1949, January January 4, 1953, 1953 to July 27, December January 6, 22, 1951, 1957 and January 1, 1955 tó May 22, 1956, January did the decisions change June 20, 1957, principles Almeida or the basic and Byron Moyer, predicated. which were upon they blandly opinion Furthermore, majority impor- fact —the important ignores very blindly is overpowering tance and of which magnitude —that affirmed by v. Almeida was thereafter Commonwealth Pennsylvania, Court of Supreme four decisions of from that case quoted extensively three of murder) upon their decision (of guilty based enunciated so clearly forcefully basic principles Almeida case. These decisions reiterated in 2d v. 372 Pa. 93 A. were Phillips, Commonwealth supra v. ; Commonwealth (1953) Lowry, Pa., supra (1953) ; Bolish, Pa., A. Commonwealth v. (1955) ; Thomas, 2d 204 (1955). the

In v. 374 supra, Commonwealth Lowry, Pa., and Court affirmed a look-out’s conviction of murder : 599) in a unanimous said “Where a opinion (page in the course of a all who robbery, occurs killing the participate the the driver of robbery including car are of murder in the first guilty get-away equally some one other than the defendant though even degree fired fatal v. 284 Pa. 130 the shot. Com. Robb, 99, A. v. and Com v. 357 Pa. 302; Moyer 181, Com. Byron, 358 Pa. 56 84; 53 A. 2d Com. v. A. 2d 736; Hough, 247, 362 Pa. 68 A. 2d Com. v. 595; v. Almeida, Com. A. 2d Book 112; Blackstone, Thomas, 193.” 4, pages (1955) v. supra Bolish, Pa., conviction of murder. That

sustained another felony Commonwealth v. 362 Pa., reaffirmed Almeida, case Pa. supra, and Commonwealth Moyer, supra, its conclusion and upon and predicated solely entirely principles and enunciated those cases. reasoning that a man who commits or procures The Court held arson is of murder in the guilty commission death of the resulted accomplice first degree, if accomplice’s and from the unintentionally accidentally of the arson. The Court, own act commission from the Almeida and Moyer- quoting extensively alia 510 et : (pages seq.) said inter Byron cases, contention, main de- come to the “We now this which resulted from killing viz.: fendant, not amount to a so-called murder felony arson could was not murder under the law of consequently so-called Expressed another way, Pennsylvania. murder doctrine does not to the death apply felony accomplice’s which resulted from the accomplice an of arson . . . Defendant perpetration act in the own was an accomplice (b) (a) Flynn assumes caused his own set the fire which actually death, and an this act was premise argues Flynn’s based on which, force de- superseding relieved intervening . . . killing. from the fendant of the common law was that anyone “The theory possessed a common law felony legal cоmmitted who resulted therein killing naturally and where malice; though even was unintentional or therefrom, malice was carried over from legal accidental, felon original the original . . . murder. is the criterion and express implied “Malice of murder. Malice ingredient essential absolutely sense exists not where there is a only par- legal its also whenever there is a ill but wickedness will, ticular wanton hardness of heart, conduct, disposition,

537 consequences re- mind cruelty, and a recklessness of Legal may gardless duty. inferred malice of social attending circumstances. and found from the If an unlawful “To summarize: there was express implied, (legal) con- that will or malice, though intent was no stitute murder even there injure particular person killed kill who though or ac- his unintentional and even death was 362 Pa. 596, v. Almeida, cidental: cf. Commonwealth Moyer 68 A. 2d and Common- 595; Commonwealth v. Byron, A. 736; 357 53 2d Common- wealth v. Pa. 181, wealth 341 Pa. 19 A. 2d Common- 98; v. Guida, 305, McLaughlin, 142 213; wealth v. 293 Pa. A. 218, 284 130 302; Commonwealth v. Pa. A. Robb, ‍​​​‌‌‌​​‌‌​‌​​‌‌‌​​‌‌‌​​‌​‌​‌​​‌​‌​‌​​‌​‌​‌‌‌‌‌‌‍99, Lowry, A. Commonwealth v. 374 Pa. 98 2d 733; 594, A. 394; Commonwealth v. 365 Pa. 76 2d Buzard, 511, Commonwealth v. 365 Pa. 74 A. 2d Dorazio, 125; 291, Sterling, 314 170 Commonwealth Pa. A. 76, 258; Commonwealth v. 274 24; Pa. 118 A. Lessner, 108, Commonwealth v. 243 Pa. 89 A. 968; Exler, 155, 58 Commonwealth v. Pa. 4 Drum, 9; Blackstone, p. p. §13 §20 Commentaries 40 192-193; C.J.S. 866, 857, p. p. p. (3rd §21 §2 §92 Homicide 868; Wharton, 2, 1907); Pennsylvania ed. Criminal Law: Mur- Maurer, p. seq., p. seq.; §3582 §3689 der 915 et et Warren, (Perm. 1938); §74 Homicide ed. & Clark Marshall, (4th 1940). §245 Crimes ed. . . . Kelly,

“. . . ‘This court said in Commonwealth v. A. 2d “To this any one must answer as a malicious criminal fatal injury being by anything he here causes a human done intentionally unintentionally during him attempted commission or commission of specified felonies, mainspring for malice is his enterprise every outlawed and his act within the latter’s imputable quality. ambit is to that base Such a rule protection is essential to tlie of human life.” In that previously case as we had in we held, 118 A. that “when 24, Lessner, attempted robbery commission or commission of a there felony is ‘no break in the chain of events’ between the shooting though and the which caused even death, gun] discharge unintentionally [of ‘the was caused struggling [by felon] while his with or with victim, party, a came latter’s third who to the assistance,’ killing is inadmissible and the defense of accidental under the ‘murder of the first homicide is, statute, degree.’

“ mainspring ‘The doctrine that when malice is the responsible of a criminal act the actor will be held consequence though his of act it was not the one recognized ago intended centuries when was was quoting page held from Book that, Blackstone, IV, 201, “if A section one shoots at and misses him, 1.599, previous is but kills this because of the B, murder, which the law transfers felonious from one to intent, (Italics supplied.)’ other.” gone Pennsylvania holding far has “How jiersons participated a of the who criminal act each robbery is for all such as the acts of his con- design, of furtherance the common federates apjnirent strikingly from Commonwealth v. Doris, 135 A. 313. In that Pa. case policeman during escape flight killed a his robbers (his killing occurred after the was who defendant, custody had seized was in a been co-robber, yet police officers; this Court sustained defendant’s (he degree penalty murder in first conviction death. (4th Ed.) page on “In Clark and Marshall Crimes ‘§245. thus Homicide in law is stated: (a) Felony, In General.—At common Commission in every malice was as a matter law law, implied commission case of homicide while engaged some and such was murder other felony, whether death was intended or not. The mere fact commission of a engaged was party as sufficient the element regarded apply malice. “ ‘On law this it was murder at common principle, kill in or at- to another unintentionally committing, or tempting commit, burglary, arson, rape, robbery, larceny. “ and ‘The doctrine has been recognized repeatedly in as still this and is to be applied country, regarded in where it has been force, except expressly abrogated statute.’ . . . on v. is Pa.,

“Commonwealth Almeida, supra, in prin its facts so to the instant case and analogous from quote so that we shall ciple directly controlling that exhaustive at some opinion length.”*

* says (as present majority opinion When the writer dissenting opinion Almeida, in Commonwealth v. he also said his Pa., opinion supra) propositions of that certain stated Moyer Byron dictum, in Commonwealth v. is the Court are specifically be recalled that in Commonwealth Court held propоsitions v. Almeida those 'therein were not that asserted dictum. majority present opinion (as the writer of the he When states Almeida) dissenting opinion in his in Commonwealth v. also did supported by Thompson, 321 that his views are Commonwealth v. Mellar, 339, Pa. 184 A. and Commonwealth v. rejected 144 A. we cannot fail to note that this statement was clearly distinguished by refuted, and these cases were opinion in in its learned exhaustive Commonwealth v. Court majority present opinion Almeida. the writer of the cites When jurisdictions support (as other his views he also 5 cases from dissenting opinion Almeida), Commonwealth we did his again pointing once out that those were refrain from cannot cases rejected by distinguished and either Court considered Furthermore, of v. Almeida. decisions this therefrom at Court great length, After quoting “ ‘A knave 519): feloniously said (page who acts starts “a reaction” dangerous chain maliciously of must the natural responsible to human be held life results such This is doctrine enunci acts. fatal ated textbook on criminal law, writers has been courts.7. . . applied by the thus has become the may

“We summarize what settled law a person Pennsylvania: legal If malice commits an act or sets events chain off experience the common which, mankind, from the death another is a natural or reasonably fore seeable that result, person death guilty murder, if results act or which it events from from If the malicious produced. original act was naturally arson, rape, burglary robbery, kidnapping, original actor is of murder in the first degree.77

If people Pennsylvania believed Com v. monwealth Commonwealth v. Bolish, Almeida, Commonwealth v. and and Moyer Common Byron, wealth v. were Lowry, wrongly decided down a laid law principle of which protected unjustly law-abiding citizens and law-abiding Legislature communities, and according to the could, view have majority should, Act passed law when altering an met- subse it. to these decisions. quently

Commonwealth v. Moyer Byron, Commonwealth v. Almeida, Commonwealth v. Lowry, Common- wealth Bolish v. followed were 117 A. 2d Thomas, which once again based its affirmance of felony upon murder the basic States, Court which cited cases from other as as well text authori support opinions, to their unnecessary ties are so recent is it again analyze particularly See cite them. Commonwealth v. concurring opinion Thomas, Almeida Commonwealth v. Pa., supra. principles laid down in Bolish Almeida, Moyer, from which cases, quoted at In the Thomas length. case Jackson and the defendant, Thomas, attempted hold rob up and a grocery store. The owner shot and killed This Jackson. held Court the defendant, under these of murder first facts, guilty degree. Commonwealth v. as the Thomas, majority on all-fours admit, factually with and unless over- ruled, directly rules unquestionably and controls the Redline case and sustains Redline’s conviction of murder.

What was the what basis, were the reasons and for the principles Court’s decision Thomas to holding of murder? The Mr. speaking Court, through Justice said, inter alia: Arnold,

“In applying the felony-murder we have statute, held that the malice of the initial offense attaches to else whatever the criminal do in connection there- may ‘It makes no with. difference that [the defendant] . . . and the other conspirators could not know course precise advance of events that would follow attempted their evil they complete when designs’: 2d Commonwealth v. Pa. Guida, A. 305, 310, 98.

“If the defendant sets in motion physical he is for its liable result. ‘Acts power another, their under judged by should be the known tendency actual intent ac circumstances, . . . requires them. the law at their companies [men] to know the of common teachings peril experience, requires as it them to know the law. . . . “the just of life degree danger of murder is attending test ’ under the known circumstances of the act the case” act in any causes or way, directly . . .‘ “He whose hills the death within the another, him, indirectly law homicide. It is a meaning of felonious the law that whenever one’s both of' reason and rule impel proceeding physical a force, will contributes responsible for he is from different sources, whatever though his had unaided, the same as result, hand, ’ produced . . ‘There be no doubt about can ‘justice” holding gunlty murder in felon burglary degree engages robbery who first thereby inevitably calls into action defensive forces аgainst activity result him, forces being’: human Almeida, death of a Commonwealth v. 2d 362 Pa. A. 595. 605, 629, many equally “As has been said a rule such is times, public policy, with reason and consistent sound protection essential to the human The felon’s life. robbery chain set motion a of events which were contemplation should have been within his when motion was initiated. He should be held therefore responsible death which almost direct and sequence inevitable results from the initial criminal act. “ Every burglar ‘. . . he robber or knows when attempts inviting commit his crime that he is dangerous likely resistance . . knows later . inaugurates act in the chain of events he will be the deadly against part force him use of on the selected For whatever victim. results follow from legal retaliating that natural and use force, responsible Commonwealth must be held felon Moyer, (Italics sup- 357 Pa. A. 2d 736. 181, 191, 53 plied ). get-away

“The driver of a car is of murder degree in the first where the was committed accomplices robbery: his- the course of Common- Lowry, 374 wealth v. Pa. A. 2d 733. 594, 98 “In Commonwealth v. Doris, 135 A. sustained a 313, we conviction of a co-feloh for murder degree, though robbery in the first even after the completed conspirators trying and the were to effect escape, accomplice their defendant’s and shot killed police already a at officer, which time defendant was custody police the of and restrained officers. Moyer, supra,

“In Commonwealth v. we held hilling was immaterial whether the bullet a third person (police officer) pistol eame the from defendant’s robbery. or that the victim the “In Commonwealth v. Bolish, (reversed grounds), A. 2d 464 on other held a we degree proper conviction of murder in the first though (in accomplice arson) actually even defendant’s set fire which caused his own death. The defend- accomplice’s ant there contended that act was intervening superseding relieving an and force killing. defendant of the We there said: ‘Courts have duty, especially days in these when crime has become prevalent, property so to see that and lives, people rights law-abiding protected are and consequеntly delicately must balance the scales justice rights public protected so that the of the are persons equally with those of accused of crime. . . . in the instant case. That “So, too, the victim, any' person attempt third such as an would officer, prevent robbery prevent escape or to would shoot kill one of the’ felons felons, readily wás ‘as foreseeable’ as the cases where an in bystander unintentionally, by nocent even killed, accomplice, the defendant’s or where the victim of the pursuing robbery is or where a officer is slain, killed. killing is the natural co-felon foreseeable robbery proxi the initial act* The was result the death. We can see no mate cause sound reason * Realistically, just it is as if defendant’s had ricocheted bullet . . ...... his co-felón. wall killed off the hilled was the one because merely distinction aof in the perpetration a It was co-felon. contemplated ‘unquestionably robbery certainly most who defendant, ignored by callously knew well might a crime which he to commit intended v. Sterling, rise to it’: Commonwealth give 170 A. 258.” 80, 76, v. Moyer v. Commonwealth

Commonwealth Almeida, recent murder and and all the other Byron and approved were again decisions of this Court enunciated there- principles established basic and long comprehensive in a in were reviewed and reaffirmed 14 See Commonwealth opinion pages. concurring Pa. 645. v. 382 Thomas, . v. was Pa., supra, Commonwealth Thomas, 1955. The September 26, Legislature handed down on from 1955 to May met Pennsylvania January June 1957. and from 22, 1956, January 1, If the believed that Common people Pennsylvania wealth v. Commonwealth v. Thomas, Com Bolish, monwealth v. Commonwealth v. Almeida, and Lowry and were Moyer Byron unjust Commonwealth de principles cisions or laid down improperly citizens from murderers protected law-abiding unfairly criminals and other dangerous Legislature could, under the view should majority’s we have and, repeat, but the Legislature made no changed law, change. Propositions Refutation of Statements and Opinion Majority It is an fact that until the cases indisputable v. Bolish and Comnnonwealth v. Thomas present was the majority opinion the writеr dissented in Justice who or from the afore- only -or opinions said' decisions- the Court. The' proposi- are adopted present óf law which niájórity tions opinion continuously vigorously advo- have been years by cated for the ten murderers and last convicted carefully analyzed rejected have been considered, opinions this Court in their and decisions com- mencing Moyer Byron and Commonwealth v. Commonwealth v. Almeida. specific present ground ma- reason opinion justifiable

jority vigorously homicide—was —a urged rejected completely unequivocally but was by this in Commonwealth v. It Court Thomas. present expressed by clearly thus the writer of the majority opinion dissenting opinion in in his Common- supra, wealth v. “I he said: Pa., where am Thomas, anyone at a to understand loss how can be found justifiable common murder at . . . for . . law a . homi- convincing cide.” There are three this answers to question. place, going Avay In the first back to all the says: “If Blackstone, Blackstone a does man, however, probable consequence may such an of act which the eventually killing may be, is, death; such mur- be although no der, stroke be struck himself and no killing primarily be intended.” IY Blackstone’s Com- page mentaries, §197, 1594. convincing

The second answer is that a homicide may justifiable qua policeman defending a or one qua his or person, life home, felonious another for, points wantonly as even Blackstone it is out, murder kill a felon. convincing

The third answer is found in a score of cases hereinabove cited which hold that while an ac- killing justi- or cidental unintentional is excusable or felony, fiable and is not even a an accidental or unin- killing' perpetration tentional which occurs in the robbery, burglary, rape, a kidnapping, or arson, is majority opinion If murder. is correct a that person guilty cannot be Pennsylvania, of murder in anyone be justifiable can how homicide, a so-called Blackstone’s from authorities all murder, as opinion majority ad- today agree

day until —and they or unintentional accidental can, for an mits— majority including the All authorities, homicide? indispensable agree opinion, is the essentiаl, malice that without ingredient, of murder and the hall-mark implied malice there or transferred the doctrine absolutely felony is murder. It not be could legal indisputable during robbery malice is a irrespective present who in all the robbers, fared of the crucial or who was hilled! That is one shot fatal completely majority over- which the have touchstones majority cannot build looked without which repeat, possible to draw How its house. we is it then, logical legal or distinction—so or realistic or sound far as the crime murder concerned—between an perpetration or unintentional accidental opinion robbery majority of a and what calls perpetration robbery justifiable killing in the aof possessed every since each case robber malice dur- robbery attempted escape! ing the and the origin, development appli- The reason for the felony protection cation murder doctrine is the society. application Without principle, murder doctrine or an unintentional ac- hold-up killing in a cidental amount, not' could day today, (legal) Blackstone’s to murder. Yet obviously just present malice we is, as much reiterate, justifiable hilling in the felons, a so-called which robbery, it in a as occurs an accidental or unin- hilling robbery. occurs tentional in Conse- quently, if the occurred in and as a natural robbery, of the what does it result matter who fired the fatal shot who killed? r It is freed clear as that Redline cannot be crystal of murder case recent merely by overruling very v. Commonwealth bad as that would be. Thomas, Even important indisputable more it is an fact Redline cannot be freed of murder this Court unless (1) it overrules Commonwealth v. specifically Almeida, 362 Pa. and Commonwealth v. and Moyer Byron, Pa. as well as v. 382 Pa.* Commonwealth Thomas, and Justice Musmanno Justice according to and also, Commonwealth v. and supra; Bolish, Cohen, it (2) repudiates rejects and all the basic principles murder which have existed for several cen- felony turies and have been iterated and reiterated constantly Supreme the decisions of the Court of Pennsylvania and in the rеcent cases of Commonwealth particularly v. v. Commonwealth and Almeida, Moyer Byron, Com- monwealth v. Commonwealth v. Bolish Lowry, and Commonwealth v. and Thomas; one of (3) destroys the few barriers which furnish some remaining protec- to law-abiding tion communities as against murderers, well as the deterrence felonious crime by dangerous All of aforesaid criminals. murder cases, v. Commonwealth Commonwealth particularly Thomas, v. Moyer Byron Almeida, * majority opinion present From the and from the case dissenting opinion day of Justice Musmanno tiled this in Common- Bolish, wealth v. learn we the first time an Assistant Attorney prossed had District nolle murder indictment Commonwealth v. Thomas. We do not have before us the record case, in the second Thomas and therefore do not know whether justified new facts circumstances actions of officer ihe supposed protect public obey who is and mandates Supreme Pennsylvania. However, Court of if the Assistant Attorney against District caused murder indictment Thomas prossed opinion in intentional to be nolle defiance of the the Pennsylvania Supreme Thomas, Court Commonwealth v. Pa., contempt” severely punished. he should have been held “in quoted and have been cited latter two which directly approval by in recent cases, this Court impossible avoid, is to murder; Eedline and it

rule the escape and rationale from the fundamental evade or upon principles basie reasons and the the basic based and those convictions those decisions were overruling expressly all murder without sustained, repudiating rejecting and basic those cases principles enunciated therein. reasons present majority opinion considered is Whether conjunction with Justice Cohen's con alone or in opinion, inescapable they curring the conclusion is — making a law in shambles of the have succeeded Pennsylvania.* in murder many principles times do of law have to How basic of this in order to become the settled law be reiterated many leading do cases How times Commonwealth? approval quoted approvingly be cited with have to tо become settled law order extenso, Pennsylvania? indisputably may is be trite but it true and

It say certainly necessary to must be there some is stability Courts and their our decisions, real to enable businessmen make contracts, order to every rights, every citizen to know his enable powers public official know and limitations of protect finally, society government, and to enable against crime.** Lord Chief itself Sib Edwabd Coke, * majority Almeida, opinion, In the like coffin, suspended between Mohammed’s Heaven and earth. How coffin, ever, upward which is unlike Mohammed’s headed toward containing Heaven, pointed coffin Commonwealth v. Almeida is flight preparation speedy for a downward into the bowels earth. ** couple ago punishment upon A of centuries inflicted person (often death) convicted a minor offense was so terrible thus erected in circa Justice of England, wisely has until the last years, a beacon few light which, and everyone businessmen Judges, guided lawyers, safetie law is the alike: “The knowne certaintie of the on maxim or standard was inscribed all”. That im- more it was Schools; important, the walls Law minds and thoughts bedded for hundreds of years until American and) every (English lawyer and, American Judge. words every recently, ‍​​​‌‌‌​​‌‌​‌​​‌‌‌​​‌‌‌​​‌​‌​‌​​‌​‌​‌​​‌​‌​‌‌‌‌‌‌‍Owen J. the learned and Justice distinguished Roberts, par- Supreme Court the United are States, In Smith v. 321 U.S. ticularly appropriate. Allwright, said: “The instant over- he 649, 669, aptly decision, nine tends to that announced about ruling years ago, of this tribunal into the same class adjudications bring this as a restricted railroad ticket ‘good day for train only

Is this Court going justly adequately protect communities as have for law-abiding we done over are we to maintain going principles stand- years; ards decisions whose “knowne certaintie is safetie of or are we to mark our all”, going decisions for this and train “good day only”? protection leaned Courts over backwards to devise him.

Today pendulum swung has far in the other direction so that society, criminal, sorely is and not need of protection spite highest In Courts. of this the Courts constantly weakening eliminating land are the few safe- guards protect law-abiding against which remain to communities dangerous criminals.

Case Details

Case Name: Commonwealth v. Redline

Court Name: Supreme Court of Pennsylvania

Date Published: Jan 10, 1958

Citation: 137 A.2d 472

Docket Number: Appeal, 8

Court Abbreviation: Pa.