Commonwealth v. Redline
Commonwealth v. Redline
Opinion of the Court
Opinion by
The defendant was convicted of murder in the first degree with penalty fixed a.t life imprisonment for the death of his co-felon from a gunshot wound inflicted by a police officer endeavoring to apprehend the two culprits who were attempting to flee the scene of their armed robbery. From the judgment of sentence entered on .the jury’s..verdict, the.defendant has appealed
In the Thomas case, the defendant was held answerable to an indictment for murder for the killing of his accomplice by the victim of their robbery, the malice requisite being imputed because of the defendant’s contemporaneous participation in the initial felony. The conclusion reached in the Thomas case was a further extension of the felony-murder doctrine as applied in Commonwealth v. Almeida. The opinion for the court in the Thomas case relied for its principal authority on the decision in Almeida and also cited the more recent case of Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464. But, Bolish is plainly distinguishable from Almeida, while the instant case, whose operative evidential elements are basically similar to those of the Thomas case, is distinguishable from both Almeida and Bolish. The decision in the Almeida
The only constitutional power competent to define crimes and prescribe punishments therefor is the legislature, and courts do well to leave the promulgation of police regulations to the people’s chosen legislative representatives. No killing under circumstances such as the instant case presents had ever before been declared murder in this State prior to the ruling in Commonwealth v. Thomas, supra. If predominant present-day thinking should deem it necessary to the public’s safety and security that felons be made chargeable with murder for all deaths occurring in and about the perpetration of their felonies — regardless of how or by whom such fatalities came — the legislature should be looked to for competent exercise of the State’s sovereign police power to that end which has never yet been legislatively ordained.
The material facts of the instant case may be briefly stated. And, inasmuch as the jury’s verdict rejected the defendant’s self-exculpatory testimony, we shall accept the facts and circumstances of the robbery and killing as recited in the Commonwealth’s counter history of the case.
Around midnight of April 11, 1956, Redline, the present defendant, and his companion, Erbor Worseck,
The above recited circumstances would, of course, support a serious criminal charge against Redline but not for murder. He was a willing participant in an armed robbery for which he could be indicted and found guilty at common law and, more lately in this State, under a pertinent statute. But, he is not chargeable under any known relevant rule of law, save for the decision' in the Thomas case, Supfa, with'murder for
The definition of murder at English common law, which ivas carried for Avar d by our Act of January 28, 1777, 1 Sm. L. 429, alone defines the crime in this State. Consequently, in re-examining the felony-murder doctrine, both as to its origin and deA'elopment generally and its application in Pennsylvania, it is to be kept in mind that, except for one special and presently irrelevant mode of death-dealing by means of intentional train-wrecking,
Although degrees of murder were, and still are, unknown to the common law, three classes of homicide are there recognized, the term “homicide” being generic and embracing every killing of a human being by another: 1 Warren, Homicide, §54 (Perm. Ed.) ; IV Blackstone, Commentaries, *177. The classifications of homicide at common law are (1) justifiable, (2) excusable and (3) felonious. “The first has no share of guilt at all; the second very little; but the third is, the highest crime against the law of nature that man is capable of committing”: IV Blackstone, Commen
Such is substantially the definition of murder which this court adopted in Commonwealth v. Drum, 58 Pa. 9, and which has ever since been uniformly applied by this court in the multitude of murder trials that has followed: see, e.g., Commonwealth v. Buzard, 365 Pa. 511, 76 A. 2d 394. The proof requirements necessary to establish a case of murder, as defined in the Busard case, are no different than they were at the time of Commonwealth v. Drum, supra. The “reasonable creature in being” specified in the common law definition of murder, as stated in the Drum case, was none other than the human being whose death at the hands of another is still necessary to constitute a homicide. “The distinguishing criterion of murder”, as recognized in the Drum case, “is malice aforethought.” And, that continues to be true today. Malice is the “grand criterion which now distinguishes murder from other killing”: IV Blackstone, Commentaries, *198.
In certain circumstances the malice essential to murder need be neither prepense nor express. For instance, at common law an accidental or unintentional
In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of hilling. The mere coincidence of homicide and felony is not enough to satisfy the requirements of. the felony-murder doctrine. “It is necessary . . . to shoAv that the conduct causing death was done in furtherance of the design to commit the felony. Death must be a consequence of the felony . . . and not merely coincidence”: Hitchler, op. cit. supra, citing Perkins, Malice Aforethought, 43 Yale L. J. 537 (1934).
The legal situation which for years obtained in this State in cases of felony-murder was aptly epitomized by Mr. Justice Parker in Commonwealth v. Guida, 341 Pa. 305, 308, 19 A. 2d 98, as follows, “. . . if a person killed another in doing or attempting to do
Until the Almeida case there was no reported instance in this State of a jury ever having been instructed on the trial of an indictment for murder for
On the contrary, in Commonwealth v. Thompson, 321 Pa. 327, 330, 184 A. 97, which involved a conviction of first degree murder with penalty of death, the defendant contended that the victim was killed by a bullet fired by a neighbor in an effort to resist the defendant’s armed assault, while attempting to burglarize the home of the deceased victim. On appeal to this court, the defendant complained that “the trial judge did not adequately present to the jury the evidence in support of his contention that the bullet which killed [the deceased] was fired from [the neighbor’s] pistol, but reviewed at greater length and with emphasis the evidence supporting the opposite theory of the Commonwealth.” In affirming the conviction, this court said that “. . . when the statement complained of is read with the preceding portion of his charge, it is clear that the trial judge ... did not convey the impression that the doctor had testified the decedent died from a gunshot wound inflicted by any particular bullet or pistol. An examination of the charge in its entirety discloses very careful instruction that the jury must be satisfied beyond a reasonable doubt that the defendant’s shot caused the death” (Emphasis supplied).
Again, in Commonwealth v. Mellor, 294 Pa. 339, 342, 144 A. 534, which likewise involved a first degree murder conviction with the death penalty, the major defense at trial was that the innocent victim of a shooting in connection with an attempted robbery by the defendant (and a confederate) was accidentally
The rule thus expressed and followed in Pennsylvania prior to the Almeida, case was the same in other common-law jurisdictions and still continues so to be.
' In Commomoealbh v. Campbell, 89 Mass. (7 Allen) 541, on an indictment for murder for a homicide committed near an armory in Boston during a riot which grew out of the enforcement of the Civil War draft, the Commonwealth’s evidence showed that the defendant was participating in the riot; that a military force was called out to suppress the riot and was stationed in the armory; and that the mob was fired on by the soldiers and the soldiers were fired on by the mob. The case was tried before Chief Justice Bigelow and Justices Metcalf, Merrick and Hoar of the Supreme Judicial Court of Massachusetts and was prosecuted by the Attorney General of the State in person. The Attorney General requested the court to instruct the jury as follows: “That whether [the deceased] was killed by a shot from within or without the armory, all the parties unlawfully engaged in the transactions which resulted in the homicide were at common law guilty, at least of manslaughter.” The instruction was refused in an opinion for the court by Chief Justice Bigelow who said in part (pp. 544-545), “No person can be held guilty of homicide unless the act is either actually or constructively his, and it cannot be his act in either sense unless committed by his own hand or by some one acting in concert with
In Butler v. People, 125 Ill. 641, 18 N.E. 338, William and Franklin Butler, with two other persons, were charged with murder for the killing of an innocent bystander by a shot fired by the town marshal in Ms effort to suppress the rowdy conduct of the Butlers and théir companions. Citing Commonwealth v. Campbell, supra, as-a-casé in pói-Ut, Chief Justice Ckaig,
■ In Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085, the defendants, Moore and Kelly, assaulted John Young with the intent to rob him. Young drew k gun with which to defend himself, discharged it and accidentally killed Anderson Young, an innocent bystander. The indictment for murder was dismissed by the trial court and the Commonwealth appealed. The Kentucky Court of Appeals cited approvingly the eases of Commonwealth v. Campbell and Sutler v. People, su
In State v. Oxendine, 187 N. C. 658, 122 S.E. 568, a bystander was accidentally shot and killed by a man defending himself against an attack by the defendants
In People v. Udwin, 254 N. Y. 255, 172 N.E. 489, some escaped convicts were indicted for the murder of one of their number who was shot and killed in attempting to escape. In New York, escape from prison is a felony and any killing committed during the perpetration of a felony is first degree murder. Evidence as to who fired the fatal shot was circumstantial. The defendants were convicted of murder in the first degree. On appeal, the defendant, Udwin, contended that the evidence did not exclude all reasonable possibilities that the fatal shot was fired by someone other than one of the conspirators. The Court of Appeals approved what it termed “the law of the ease as stated by the trial justice” who had charged that it was the burden of the prosecution to establish “beyond a reasonable doubt that the shot which killed [the deceased] was fired by one of the convicts engaged with the defendants, or some of them, in a common purpose or design to unlawfully and feloniously escape.” The defendants were convicted; and, the question on the appeal was whether the evidence was sufficient to justify
In People v. Garippo, 292 Ill. 293, 127 N.E. 75, surviving robbers were charged with- the murder of an accomplice who had met his death, during the course of the robbery, at the hands of a person unknown. In that case, one Scalzitti, along with the defendants, had engaged in a highway robbery. During the progress of the robbery, Scalzitti, the leader, was shot and killed. The trial judge submitted the case to the jury on the basis that, a death having occurred in the course of the robbery, all of the robbers were alike guilty of the homicide. The defendants were found guilty of manslaughter. On the defendants’ appeals, the Supreme Court of Illinois, after discussing and quoting with approval from the Campbell, Butler and Moore cases, supra, reversed the convictions, holding that “Under the reasoning of the above authorities, instructions 16 and 19 given on behalf of the State and complained of by counsel for plaintiffs in error must be held erroneous. Under those instructions, plaintiffs in error might be held responsible for shooting done by another person when there was no concert of action between him and them.”
The rule long recognized and sedulously applied by the courts of this country, of which the Campbell, Butler and Moore, cases, supra, are notable examples, is aptly stated in 13 Ruling Case Law at pp. 753-751 as follows: “Thus, where persons conspire together to commit robbery, and while carrying out such conspiracy their victim, in self-defense, discharges a fire arm at his assailants, and accidentally kills a bystander,
There was testimony in the Almeida case that the lethal bullet was fired by one of the robbers. This was disputed by the defendant who claimed that it was from a policeman’s revolver. It was in that situation that the court charged the jury that, the defendant having been engaged in a robbery at the time of the killing, it was immaterial to a conviction of first degree murder that the fatal bullet was fired by someone other than the defendant or an accomplice. As authority for this instruction, the trial judge relied upon a dictum in Commonwealth v. Moyer and Byron, 357 Pa. 181, 53 A. 2d 736. The jury convicted Almeida of first degree murder. In affirming the judgment of sentence, this court declared that an accidental or unintentional killing occurring during the perpetration of a robbery rendered those feloniously engaged in the robbery guilty of murder in the first degree even though the fatal wound was not inflicted by any of ,the felons or some one acting in their behalf. The rationale of this pronouncement lay in an adaptation of the doctrine of proximate cause (as known to the law of torts) to the common-law requirement of felony-causation as a prerequisite to the applicability of the felony-murder rule. Thus, this court’s opinion specifically avowed that “Our decision in the Moyer-Byron case was an application of the long established principle that he whose felonious act is the proximate cause
Beyond that, the statement in the opinion for the court in the Almeida case that “Our decision in Commonwealth v. Moyer and Byron, supra, is authority for our decision in this case” was without justification. The expression in the Moyer and Byron opinion to which the Almeida opinion thus alluded was that “A man or men engaged in the commission of such a felony as robbery can be convicted of murder in the first degree if the bullet which causes death was fired not by the felon but by the intended victim in repelling the aggressions of the felon or felons.” That statement was a palpable gratuity as an examination of the trial record in the Moyer and Byron, case will at once disclose.
In its general charge, the court submitted the Moyer and Byron case on the basis that, in order to convict, the jury would have to find, beyond a reasonable doubt, that either one or the other of the defendants fired the bullet which killed the innocent gasoline station attendant whose death was the subject-matter of the indictment. And, in addition, the court
It follows that the decision in the Moyer and Byron case was in no sense authority for the ruling in Almeida. And, the same can be said for the decisions in Commonwealth v. Guida, Commonwealth v. Doris and Commonwealth v. Sterling, cit. supra. In each of those
The out-of-State cases cited and relied on in the Almeida opinion were equally not in point. For example, in the so-called “shield” cases, where a felon uses the interposition of the body of an innocent person to escape harm in flight from the scene of his crime, the malice is express. See, e.g., Keaton v. State, 41 Tex. Cr. R. 621, 57 S.W. 1125; Taylor v. State, 41 Tex. Cr. R. 564, 55 S.W. 961; and Wilson v. State, 68 S.W. 2d 100 (Ark.). In not one of those cases was the malice imputed by the defendant’s participation in the initial felony. Obviously, they were not based on the felony-murder theory. Indeed, the courts which decided those cases expressly recognized the validity of the principles enunciated in the Campbell, Butler and Moore cases, supra, but found such principles not pertinent because the factual situations then before them (viz., the use of an innocent person as a shield or breastwork against the hostile bullets of an adversary) supported findings of express malice. And, that was so regardless of whether the felons’ motive in placing an innocent victim in a position of mortal
Nor did Commonwealth v. Bolish, supra, justify the decision in the Thomas case. Bolish was indicted for murder of his confederate, Flynn, who died from severe burns received while committing arson with the use of an inflammable liquid and an electric hot plate furnished by Bolish for use in setting the fire of the criminal undertaking. Under the evidence, Flynn was either (1) an accomplice of Bolish who allegedly had planned the arson or (2) he was Bolish’s weak-minded tool who acted under the impulse of Bolish’s influence and domination. Thus, the malice essential to charging Bolish with murder Avas present either (1) by imputation under the felony-murder theory, if the death Avas found by the jury to haAe occurred as a result of confederate Flynn’s act in furtherance of the criminal conspiracy or (2) expressly, if Flynn was found to be merely a pliant dupe who acted on Bolish’s order in performing the criminal act Avith highly dangerous means which threatened grievous bodily harm to the actor.
The instant appeal affords an appropriate occasion for the repudiation of Commonwealth v. Thomas, supra, which we uoav expressly overrule as an unAvarranted judicial extension of the felony-murder rule. Fortunately, no one has suffered any penalty as a result of the holding in that case. Following our remand of the record in the Thomas case, the district attorney moved the trial court for leave to nol pros the murder indictment. The court approved the motion, and a nolle prosequi was duly entered. At the same time, the court accepted the defendant’s plea of guilty to an indictment charging him Avith armed rob
The Commonwealth contends, however, that, entirely apart from the Thomas case, the appellant’s conviction of murder can be upheld on the rationale of Commonwealth v. Almeida. As already indicated, Almeida was, itself an extension of the felony-murder doctrine by judicial decision and is not to be extended in its application beyond facts such as those to which it was applied. In short, the Almeida case was concerned with the killing, during the perpetration of a felony, of an innocent and law-abiding person by someone other than the felons or ones acting in aid of their criminal conspiracy. The evidence warranted a finding that it was an accidental killing by an officer of the law, but the felons were held accountable nonetheless on the basis of proximate causation regardless of who fired the fatal shot. In the present instance, the victim of the homicide was one of the robbers who, while resisting apprehension in his effort to escape, was shot and killed by a policeman in the performance of his duty. Thus, the homicide was justifiable and, obviously, could not be availed of, on any rational legal theory, to support a charge of murder. How can anyone, no matter how much of an outlaw he may be, have a criminal charge lodged against him for the consequences of the lawful conduct of another person? The mere statement of the question carries with it its own answer.
It is, of course, true that the distinction thus drawn between Almeida and the instant case on the basis of
The limitation which we thus place on the decision in the Almeida case renders unnecessary any present reconsideration of the extended holding in that case. It will be time enough for action in such regard if and when a conviction for murder based on facts similar to those presented by the Almeida case (both as to the performer of the lethal act and the status of its victim) should again come before this court. |
Judgment of sentence reversed and record remanded with directions that the defendant’s motion in arrest of judgment be reinstated and thereupon granted.
Both the Almeida and the Thomas cases have provoked a large amount of critical law review comment and discussion. For a particularly well-considered and cogent criticism, see The Felon’s Responsibility for the Lethal Acts of Others by Norval Morris, Associate Professor of Criminology at the University of Melbourne, in Vol. 105, U. óf Pa. L. Kev., p. 50'.
It is not inappropriate to recall, that the General Assembly of Pennsylvania, in prescribing by the Act of April 22, 1794, P.Ii. 186, punishment less than capital for certain types of murder, expressly recognized that “Whereas the design of punishment is to prevent the commission of crimes, and to repair the injury that hath been done thereby to society or to the individual, and it hath been found by experience, that these objects are better obtained by moderate but certain penalties, than by severe, and excessive punishments . . .”
Section 919, Of The Penal. Code of 1939, P.L. 872, 18 PS. §4919; see Commonwealth v. Johnson, 368 Pa. 139, 81 A. 2d 569.
The limitation So imposed by thé Act Of 1794 was carried over. into Section 74 of the. Act pf. 186Q, .P.L, 382. And, by Section.!, of'the Act of May 22, 1923, P.L. 3Ó6, a fifth'felony (viz., kidnapping)'
Concurring Opinion
Concurring Opinion by
I concur in the reasoning and result of the majority opinion- in reversing the judgment of conviction in
To me a conviction of murder in the first degree upon the theory of felony-murder depends upon the combination of the following elements — all of which are essential.
1. There must be a homicide.
2. The homicide must have been committed by an act of the defendant or, by applying the “co-conspirator’s rule”, by one acting in concert with him in the furtherance of the criminal conspiracy.
3. The criminal undertaking during which the death resulted must have been a felony (a common law felony).
In such circumstances the felony-murder rule operates to supply the element of malice aforethought to the homicide so as to make the homicide murder. Where the murder was committed in the course of the felony of arson, rape, burglary, robbery, or kidnapping, the Pennsylvania “degree of murdei*” statute applies to make the murder one of first degree. All other felony-murder not perpetrated in the course of the above enumerated felonies is murder in the second degree. (Act of June 24, 1939, P. L. 872, §701, 18 P.S. §4701.)
When Almeida is weighed against the above, requirements it is apparent that the decision cannot stand because the homicide therein was not committed “by an act of the defendant or, by applying the co-conspirator’s rule, by one acting in concert with him in furtherance of the conspiracy.” ■
In Almeida the defendant in attempting to escape from the scene of his robbery provoked a gun battle with police in which a third party was shot and killed by one of the pursuing officers. The policemen’s act of shooting was excusable. That excusable shooting, however, cannot confer liability upon Almeida for the death of a third party. “The hilling must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious under talcing. ” (Majority opinion page 496). “In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of hilling.” (Majority opinion page 495) (emphasis in the original). Since Almeida himself did not commit the homicide, nor did anyone acting in concert with him so do, it follows that Almeida should not have been convicted of murder. (See the numerous cases cited in Majority opinion pages 486-510).
In the Bolish case, a conspirator, Flynn, accidentally killed himself in the perpetration of an arson while his co-conspirator, the defendant, remained without. Bolish also should not have been convicted of murdér because no homicide was committed. “Homicide does not include intentional or accidental self-destruction.” I Warren, Homicide 164 (Permanent ed. 1938) (emphasis supplied). Homicide is “the killing of one human by another.” (See cases cited in Majority opinion pages 492, 493, 498). Thus, the Commonwealth failed to establish the first requirement for a conviction of felony-murder; there being no homicide, there was no murder.
In the only other reported opinion in which this issue was presented to an appellate court for determination, People v. Ferlin, 203 Cal. 587, 265 Pac. 230 (1928), the California Supreme Court held, on facts substantially similar to those of the Bolish case, that the accused must be acquitted of murder. And in People v. LaBarbera, 287 N. Y. Supp. 257 (Sup. Ct. 1936), again on facts akin to those of the Bolish case, it was held that under the New York Penal Law the accused was not guilty of murder because there was no killing of one person by another.
I might be compelled to a different conclusion in the Bolish case if, as the majority opinion suggests, the evidence pointed inescapably to a finding that Flynn was a compliant dupe in Bolish’s hands and was knowingly sent by Bolish into a situation likely to cause his death.
From the standpoint of public policy what purpose is served by the result reached by the majority in the Bolish case? “. . . [T]he deterrent effect of such a result is very doubtful; the increased punishment strikes at the wrong thing — not at the harm intended,
If, as the majority point out, new criminal liabilities should be imposed by the legislature rather than formulated by the court, then the decisions in both Bolish and Almeida should not be allowed to stand. Until the decisions in these two cases no defendant had ever been held guilty of murder for either the accidental self-killing of a fellow-conspirator or for the excusable killing of an innocent party by an officer of the law even though both deaths occurred while felonies were in progress. That being so, the liability of the defendants for murder in Bolish and Almeida can only be the result of a piece of judicial ex post facto lawmaking. Criminal acts which did not warrant convictions of murder at the time of their commission should not later be held by this Court to constitute murder.
I would overrule Commonwealth v. Almeida and Commonwealth v. Bolish.
One “commits” a homicide if he deliberately places another in a position of deadly peril from an independent force or agency and death thereby results.
Dissenting Opinion
Dissenting Opinion by
The brutal crime wave which is sweeping and appalling our Country can be halted only if the Courts stop coddling, and stop freeing murderers, communists and criminals on technicalities made of straw. The Court's seem to have forgotten that Justice is not á one-way street — law-abiding citizens and law-abiding eommunitiés are entitled, at least equally with criminals, tó thé protection of the law.
Eedline and Worseck held up at gun-point persons in the Midway Eestaurant in Eeading. They disarmed and held captive two police officers. They then fled, compelling a man named Herschman to accompany them, obviously intending to use him as a shield. Some officers saw them, whereupon Eedline aimed a 45-cali-ber revolver at a policeman who was 15 to 20 feet away, and fired point-blank but failed to hit his intended victim. Eedline was the first one to shoot. The policeman returned the fire and in the ensuing gun battle two policemen, Eedline and Worseck were injured, the policemen seriously. Worseck died from the wound inflicted by a bullet from a policeman’s gun. The majority can free Eedline only by performing a colossal surgical operation on the felony murder law of Pennsylvania — with disastrous damage to the public.
In Order to Free Eedline of Murder
(1) the present majority has to expressly overrule the very important and controlling recent felony murder decisions of this Court namely Commonwealth v.
(2) the present majority has to repudiate all the basic reasons and fundamental principles upon which this Court’s prior felony murder decisions were predicated in Commonwealth v. Moyer and Byron, 357 Pa. (1947), in Commonwealth v. Almeida, 362 Pa. (1949), in Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d 733 (1953), in Commonwealth v. Bolish, 381 Pa. (1955) and in Commonwealth v. Thomas, 382 Pa. (1955) ;
(3) the present majority has to adopt the contentions and theories which have been repeatedly and strenuously argued by convicted murderers for ten years, but which, after very careful consideration, were utterly and completely refuted and rejected by this Court in five carefully considered and comprehensive opinions.
Because of these facts it is necessary to carefully and thoroughly analyze and review the principles of felony murder, its origin and development, and most important of all, the recent Pennsylvania cases inter
The majority opinion specifically decides that when two robbers attempt to kill a policeman and in the ensiling gun-play one of the robbers is killed by the policeman, the other robber cannot be convicted of murder because it was a justifiable killing, i.e., it is justifiable to kill a robber. Let us examine how the majority opinion reaches that conclusion.
Common Law Murder According To Blaekstone
The majority opinion goes back to and bases its conclusion on Blackstone’s Commentaries, circa 1765. Blaekstone, quoting from Sir Edward Coke, Lord Chief Justice of England, thus defines murder: “ ‘When a person of sound memory and discretion unlawfully killeth any reasonable creature in being, and under the king’s peace, with malice aforethought, either express or implied’ ”: IV Blackstone’s Commentaries, §195, page 1591. We agree with the majority that “malice, express or implied” is the “hall-mark” of murder both in Blackstone’s day and today: IY Blackstone’s Commentaries, §198, page 1596; Commonwealth v. Bolish, 381 Pa., supra; Commonwealth v. Almeida, 362 Pa., supra; Commonwealth v. Dorazio, 365 Pa. 291, 74 A. 2d 125; Commonwealth v. Thomas, 382 Pa., supra; Commonwealth v. Malone, 354 Pa. 180, 47 A. 2d 445; Commonwealth v. Drum, 58 Pa. 9.
We note, parenthetically, that the law of Pennsylvania dealing with murder, including felony murder, has naturally advanced beyond that in Blackstone’s day in order to keep pace with modern conditions of society. However, even Blaekstone furnishes no authority for the majority’s opinion or conclusion. For example,, Blaekstone says that an accidental or unintentional homicide is an excusable homicide (§182, page
The majority opinion admits, as it must, that under the decisions of the Supreme Court of Pennsylvania. — unless they are overruled — (1) Bedline was properly convicted of murder and (2) the killing of the co-robber by a policeman was a justifiable killing qua the policeman, but not qua the robber who set in motion the felonious forces which he knew would likely cause death to his co-felon or to a policeman or the proposed victim or an innocent bystander. The majority, attempting to escape these inescapable facts, bases its opinion upon the syllogism: Blackstone holds that no one can be convicted for a justifiable killing and since it is justifiable for a policeman to kill a robber during the perpetration of a robbery, no one can be convicted of murder for killing one of the robbers. While it is immaterial what Blackstone said, in view of the Pennsylvania cases interpreting felony murder, the majority’s theory or conclusion is not supported even by Blackstone.
Blackstone says, §177, page 1577: “Now, homicide, or the killing of any human creature, is of three kinds: justifiable, excusable, and felonious. The first has no share of guilt at all; the second very little; but the third is the highest crime against the law of nature that man is capable of committing.” . Blackstone then gives examples of (a) justifiable homicides, and (b) murders; some of the killings which were considered murder in Blackstone’s day would be considered justifiable or excusable today.
The first and probably most important example of justifiable hómicidé given by Blackstone is the case of an executioner who validly executes a convicted cri'mi-'
Moreover, the law is not static — it is progressive; its essence, its strength, its growth, and its efficiency lie in the indisputable fact that both in the civil law and in the criminal law the principles, and particularly the basic principles enunciated and established by the Courts are continuously applied to new or different factual situations. If that were not so, the domain of the law would be as large and extensive as the principality of Monaco, and the law would progress like a turtle. Countless examples of this axiom or self-evident truth are familiar or will quickly occur to everyone.
Murder In Pennsylvania Is Common Law Murder As Modified By The Legislature And As Interpreted And Applied By The Supreme
Court of Pennsylvania
' Murder in Pennsylvania was originally common law murder
Nevertheless, it remains true that our theory and our definition of murder was initially derived from and even today is based, with the above statutory exceptions, upon the common law as interpreted and applied to modern conditions by the decisions of the Supreme Court of Pennsylvania. These recent decisions of the Supreme Court of Pennsylvania are the key to the felony murder door — the key which the majority have-forgotten or lost.
We shall analyze and review the recent felony murder decisions of this Court and the rationale and the fundamental principles upon which they were based.
Recent Pennsylvania Cases Dealing With Felony Murder
In Commonwealth v. Moyer and Byron, 357 Pa. 181, 53 A. 2d 736 (1947), defendants’ conviction of murder was sustained by this Court which specifically held that if an innocent bystander was killed during .a rob-, bery it made no legal difference whether the bystander was killed by one of the felons or by one of the proposed victims. That case directly rules the Bedline case and sustains his conviction of murder. The Court said (page 188 et seq.) : “The second assignment of error is based on the excerpt from the charge of the court in which the jury was instructed-that: ‘All of
“This assignment of error poses the question whether or not these defendants can legally be convicted of murder if the bullet which killed Zerbe came from the revolver fired by the latter’s employer in an attempt by him to frustrate the attempted robbery. We have no doubt that even under these facts, which facts the Commonwealth does not concede, the complained of conviction was proper.
“A man or men engaged in the commission of such a felony as robbery can be convicted of murder in the first degree if the bullet which causes death toas fired not by the felon but by the intended victim in repelling the aggressions of the felon or felons. . . .
“The doctrine that when malice is the mainspring of a criminal act the actor will be held responsible for any consequence of his act though it was not the one intended was recognized centuries ago when it was held that, quoting from Blaekstone, Book IV, page 1599, section 201, ‘if one shoots at A and misses him, but kills B, this is murder, because of the previous felonious intent, which the law transfers from one to the other.’ (Italics supplied). It is equally consistent with reason and sound public policy to hold that when a felon’s attempt to commit robbery or burglary sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence
That case not only on its facts but by its reiteration and application of basic principles of law directly governs and controls the Bedline case and compels us to affirm Redline’s conviction of murder.
Commonwealth v. Moyer and Byron was followed and approved by Commonwealth v. Almeida, 362 Pa. 596, 68 A. 2d 595, which became known as the leading felony murder case in Pennsylvania. In that case, which factually and legally directly rules the Bedline case and affirms his conviction of murder, Almeida was convicted of murder when a policeman was killed during a robbery by a bullet from the gun of another policeman. We believe that no case in the history of this Commonwealth was ever as carefully considered, debated and thoroughly discussed before the Opinion was approved by that distinguished Court as the Almeida case.
“The defendant’s first assignment of error is that the court charged the jury as follows: it makes no difference who fired the shot, even if a shot was fired by Mrs. Ingling [a passerby who was the wife of the deceased] it was murder.’ Defendant’s second assignment of error is based on the court’s refusal to affirm defendant’s thirteenth point for charge, which reads as follows: ‘If you find that the bullet which was fired and killed the deceased was not fired by any one of the three men charged with perpetrating the robbery in question, you cannot convict the defendant of murder in the first degree.’ ... ‘I will charge the jury that it makes no difference who fired the shot, even if a shot was fired by Mrs. Ingling, it was still murder.’
“In his charge the trial judge said: ‘If that [fatal] shot were fired by anyone, even anyone removed from these three participants, and that shot was fired in the perpetration of a robbery, members of the jury, that is murder; that is murder in the first degree. . . . If one or more persons set in motion a chain of circumstances out of which death ensues, those persons must be held responsible for any death which by direct, by almost inevitable sequence, results from such unusual criminal act. . . . So, if the death of Officer Ingling was the inevitable consequence of the' unlawful act, or acts, of the defendant, or the continuation of the unlawful act, or acts, of the defendant, acting in concert — for every one who does an unlawful act is considered by the law as the doér of all that follows
“The defendant’s thirteenth point for charge which the trial judge correctly rejected was in effect a request that the court instruct the jury that in order to convict the defendant of the death of Officer Ingling, the jury would have to find that the fatal shot was fired by one of the three robbers. Such an instruction would have been in defiance of this Court’s decision in Commonwealth v. Moyer and Commonwealth v. Byron, 357 Pa. 181, 53 A. 2d 736, which decision the trial judge dutifully followed. In that decision handed down on June 30, 1947, this Court held in an opinion concurred in by the siso judges who heard the argument on appeal, that: ‘A man or men engaged in the commission of such a felony as robbery can be convicted of murder in the first degree if the bullet which causes death was fired not by the felon but by the intended victim in repelling the aggression of the felon or felons . . . when a felon’s attempt to commit robbery or burglary sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act
“The factual issue the defendant raises in this case is identical with the factual issue raised by the defendants in Commonwealth v. Moyer and Byron, supra; to wit, who fired the fatal bullet — one of the robbers or a man who was lawfully resisting the criminal attack of the robbers? The legal question presented and decided in the Moyer-Byron case was precisely the legal question raised in the instant case; to wit, when men who are feloniously shot at by robbers return their fire in self-defense and a third person is killed by a shot fired by the defenders, are the robbers whose felonious action caused the shooting guilty of murder? In the Moyer-Bryon case this Court after a thorough
“Our decision in the Moyer-Byron case was an application of the long established* principle that he lohose felonious act is the proximate cause of another’s death is criminally responsible for that death and must answer to society for it* exactly as he who is negligently the proximate cause of another’s death is civilly responsible for that death and must answer in damages for it . . . ‘Though there is an active force intervening after defendant’s act, the result will nevertheless be proximate if the defendant’s act actively caused the intervening force. In such a ease the defendant’s force is really continuing in active operation, by means of the force it stimulated into activity. . . Defendant
“Justice Holmes in his book on ‘The Common Law’, (36th Ed.) pp. 56 and 57, said: Acts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies them . . . ‘The object of the law is to prevent human life being endangered or taken . . . the law requires [men] at their peril to know the teachings of common experience, just as it requires them to know the law . . . the test of murder is the degree of danger to life attending the act under the known circumstances of the case.’
“Courts in the United States, England and Canada have applied the foregoing principles of ‘proximate cause’ in murder cases, as the cases now to be cited and reviewed in this opinion demonstrate.
“The principle of proximate cause in criminal cases was applied by one of the ablest of Pennsylvania nisi prius judges 105 years ago, to wit, President Judge King, in the case of Commonwealth v. Hare, 2 Pa. L. J. 467 (1844). Two separate bodies of men were fighting each other with firearms in a public street and as a result a citizen was killed. Judge King held that the members of both bodies of men were guilty of felonious homicide. At the trial of Isaac Hare, one of the rioters, on a charge of murder, President Judge King instructed the jury, inter alia, as follows: ‘If during such a scene of unlawful violence an innocent third person is slain, . . . such a homicide would be murder at common law in all the parties engaged in the affray. It would be a homicide, the consequence of an unlawful act, and all participants in such an act are alike responsible for its consequences. If the law should be called upon to detect the particular agents by whom such a slaying has been perpetrated in a general combat
''Applying the aforegoing principles to the instant case, we have a band of robbers engaged in an exchange of shots with city policemen whose duty it is to subdue the■ bmidits if possible. In the course of the exchange of deadly bullets Officer Ingling is slain. The policemen cannot be charged with any wrongdoing because their participation in the exchange of bullets Avith the bandits was both in justifiable self-defense and in the performance of their duty. The felonious acts of the robbers in firing shots at the policemen, Avell knoAving
“The doctrine of proximate cause in criminal cases was applied by the Supreme Court of Tennessee in Letner v. State, 299 S.W. 1049 (1927). The facts were that three youths were crossing a river in a boat at a dangerous point. When the boat ivas about in the middle of the river someone standing above the western bank shot into the water about six feet from the boat,. A second shot hit the water nearer the boat whereupon one of the youths jumped out causing the boat to capsize as a result of which the two other occupants were drowned. The man who fired the shot was indicted for murder. The defense contended that the death of the two youths was caused by the capsizing of the boat by the third occupant and that this act constituted a supervening cause. The Court held that the defendant could not avoid the consequences of his wrongful act by relying on a supervening cause which resulted naturally and proximately from that act. The Court said: ‘. . . in the instant case the wrongful act of the defendant; that is, firing at or near the boys in the boat, was the proximate cause, the producing cause, the cause that was primarily responsible for the death of deceased.’ . . . ‘Defendant’s act or omission need not be the immediate cause of the death; he is responsible if the direct cause results naturally from his conduct.’
“Under neither the common law nor our statute is an accidental killing murder. It is not even a felony. Yet this Court has uniformly held that an accidental killing in the perpetration of or the attempt to perpetrate a robbery or burglary or any other of the enumerated felonies is murder in the first degree. The reason is that any person committing or attempting to commit, any of these major felonies is motivated by
“It has been argued that our opinion in the case of Commonwealth v. Moyer and Commonwealth v. Byron, supra, and our opinion in the instant case are ‘novel’. They are no more of a ‘novelty’ than was the opinion of this Court in Commonwealth v. Doris, supra. They are no more ‘novel’ than was the first decision which ever held that even an accidental killing in the perpetration or attempted perpetration of robbery or burglary is murder in the first degree. That is now the law of this Commonwealth: Commonwealth v. Lessner, 274 Pa. 108, 118 A. 24; Commonwealth v. Kelly, 333 Pa. 280, and 337 Pa. 171, 10 A. 2d 431. They are not as novel as was the first decision at common law that if one shoots at ‘A’ and misses him and kills ‘B’, this is murder, because of the previous felonious intent, which the law transfers from one to the other. (Blackstone, Book IV, page 1599, section 201.)
“What Justice Cardozo said is applicable here: ‘when they [judges] are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distcmce . , . The final cause of law is the welfare of society
“There can be no doubt about the cjustice’ of holding that felon guilty of murder in the first degree who engages in a robbery or burglary and thereby inevitably calls into action defensive forces against him, the activity of which forces result in the death of a human being. Neither can there be any doubt about the ‘general utility’ of a ruling which holds this defendant Almeida guilty of the murder of Officer Ingling, even if it had been established that the bullet which killed that officer was fired by one of the police officers who were returning the fire of Almeida and his confederates and were attempting to prevent their escape. . . .
“A knave who feloniously a/nd maliciously starts ‘a chain reaction’ of acts dangerous to liuma,n life must be held responsible for the natural fatal results of such acts. This is the doctrine enunciated by the textbook writers • on criminal law, and which has been applied by the. courts . . .”
If the decisions of this Court in Commonwealth v. Moyer and Byron and Commonwealth v. Almeida, which applied long established legal principles to protect law-abiding citizens and law-abiding communities, displeased the people of Pennsylvania, the Legislature could, and according to the majority opinion’s view, should have passed an Act changing the law and absolving robbers and other dangerous criminals from- a killing which occurred in the perpetration of a robbery, unless one of the robbers fired the fatal shot. Although
Furthermore, the majority opinion blandly and blindly ignores the very important fact — the importance and magnitude of which is overpowering — that Commonwealth v. Almeida was thereafter affirmed by four decisions of the Supreme Court of Pennsylvania, three of which quoted extensively from that case and based their decision (of guilty of murder) upon the basic principles so clearly and forcefully enunciated and reiterated in the Almeida case. These decisions were Commonwealth v. Phillips, 372 Pa. 223, 93 A. 2d 455 (1953) ; Commonwealth v. Lowry, 374 Pa., supra (1953) ; Commonwealth v. Bolish, 381 Pa., supra (1955) ; Commonwealth v. Thomas, 382 Pa. 639, 117 A. 2d 204 (1955).
In Commonwealth v. Lowry, 374 Pa., supra, the Court affirmed a look-out’s conviction of murder and in a unanimous opinion said (page 599) : “Where a killing occurs in the course of a robbery, all who participate in the robbery including the driver of the get-away car are equally guilty of murder in the first degree even though some one other than the defendant fired the fatal shot. Com. v. Robb, 284 Pa. 99, 130 A. 302; Com. v. Moyer and Com v. Byron, 357 Pa. 181, 53 A. 2d 736; Com. v. Hough, 358 Pa. 247, 56 A. 2d 84; Com. v. Almeida, 362 Pa. 596, 68 A. 2d 595; Com. v. Thomas, 357 Pa. 68, 53 A. 2d 112; Blackstone, Book 4, pages 192, 193.”
Commonwealth v. Bolish, 381 Pa., supra (1955) sustained another conviction of felony murder. That
“We now come to the main contention, of the defendant, viz.: the killing which resulted from this arson could not amount to a so-called felony murder and consequently was not murder under the law of Pennsylvania. Expressed another way, the so-called felony murder doctrine does not apply to the death of an accomplice which resulted from the accomplice’s own act in the perpetration of arson . . . Defendant assumes (a) that Flynn was an accomplice and (b) actually set the fire which caused his own death, and based on this premise argues that Flynn’s act was an intervening and superseding force which, relieved defendant from the killing. . . .
“The theory of the common law was that anyone who committed a common law felony possessed legal malice; and where a killing naturally resulted therein or therefrom, even though the killing was unintentional or accidental, the legal malice was carried over from the original felony and the original felon was guilty of murder. . . .
“Malice express or implied is the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct,*537 cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances.
“To summarize: If there was an unlawful killing with (legal) malice, express or implied, that will constitute murder even though there was no intent to injure or kill the particular person who was killed and even though his death was unintentional or accidental: cf. Commonwealth v. Almeida, 362 Pa. 596, 68 A. 2d 595; Commonwealth v. Moyer and Commonwealth v. Byron, 357 Pa. 181, 53 A. 2d 736; Commonwealth v. Guida, 341 Pa. 305, 19 A. 2d 98; Commonwealth v. McLaughlin, 293 Pa. 218, 142 A. 213; Commonwealth v. Robb, 284 Pa. 99, 130 A. 302; Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d 733; Commonwealth v. Buzard, 365 Pa. 511, 76 A. 2d 394; Commonwealth v. Dorazio, 365 Pa. 291, 74 A. 2d 125; Commonwealth v. Sterling, 314 Pa. 76, 170 A. 258; Commonwealth v. Lessner, 274 Pa. 108, 118 A. 24; Commonwealth v. Exler, 243 Pa. 155, 89 A. 968; Commonwealth v. Drum, 58 Pa. 9; 4 Blackstone, Commentaries 192-193; 40 C.J.S. §13 p. 857, §20 p. 866, §21 p. 868; Wharton, Homicide §2 p. 2, §92 p. 112 (3rd ed. 1907); Maurer, Pennsylvania Criminal Law: Murder §3582 p. 915 et seq., §3689 p. 953 et seq.; 1 Warren, Homicide §74 (Perm. ed. 1938); Clark & Marshall, Crimes §245 (4th ed. 1940). . . .
“. . . ‘This court said in Commonwealth v. Kelly, 333 Pa. 280, 287, 4 A. 2d 805, “To this Commonwealth one must answer as a malicious criminal for any fatal injury he here causes a human being by anything done by him intentionally or unintentionally during the commission or attempted commission of any of the specified felonies, for malice is the mainspring of his outlawed enterprise and his every act within the latter’s ambit is imputable to that base quality. Such a rule*538 is essential to tlie protection of human life.” In that case we held, as we had previously in Commonwealth v. Lessner, 274 Pa. 108, 118 A. 24, that “when in the commission or attempted commission of a robbery there is ‘no break in the chain of events’ between the felony and the shooting which caused death, even though ‘the discharge [of the gun] was unintentionally caused [by the felon] while struggling with his victim, or with a third party, who came to the latter’s assistance,’ the defense of accidental killing is inadmissible and the homicide is, under the statute, ‘murder of the first degree.’
“ ‘The doctrine that when malice is the mainspring of a criminal act the actor will be held responsible for any consequence of his act though it was not the one intended was recognized centuries ago when it was held that, quoting from Blackstone, Book IV, page 1.599, section 201, “if one shoots at A and misses him, but kills B, this is murder, because of the previous felonious intent, which the law transfers from one to the other.” (Italics supplied.)’
“How far Pennsylvania has gone in holding that each of the jiersons who participated in a criminal act such as robbery is guilty for all the acts of his confederates in furtherance of the common design, is strikingly apjnirent from Commonwealth v. Doris, 287 Pa. 547, 135 A. 313. In that case one of the robbers killed a policeman during his escape or flight and (his killing occurred after the defendant, who was a co-robber, had been seized by and was in the custody of police officers; yet this Court sustained defendant’s conviction of murder in (he first degree with penalty of death.
“In Clark and Marshall on Crimes (4th Ed.) page 298, the law is thus stated: ‘§245. Homicide in the Commission of a Felony, (a) In General. — At common*539 law, malice was implied as a matter of law in every case of homicide while engaged in the commission of some other felony, and such a killing was murder whether death was intended or not. The mere fact that the party was engaged in the commission of a felony was regarded as sufficient to apply the element of malice.
“ ‘On this principle, it was murder at common law unintentionally to kill another in committing, or attempting to commit, burglary, arson, rape, robbery, or larceny.
“ ‘The doctrine has repeatedly been recognized and applied in this country, and is to be regarded as still in force, except where it has been expressly abrogated by statute.’ . . .
“Commonwealth v. Almeida, 362 Pa., supra, is on its facts so analogous to the instant case and in principle so directly controlling that we shall quote from that exhaustive opinion at some length.”*
“We may thus summarize what has become the settled law of Pennsylvania: If a person with legal malice commits an act or sets off a chain of events from which, in the common experience of mankind, the death of another is a natural or reasonably foreseeable result, that person is guilty of murder, if death results from that act or from the events which it naturally produced. If the original malicious act was arson, rape, robbery, burglary or kidnapping, the original actor is guilty of murder in the first degree.77
If the people of Pennsylvania believed that Commonwealth v. Bolish, Commonwealth v. Almeida, Commonwealth v. Moyer and Byron, and Commonwealth v. Lowry, were wrongly decided or laid down a principle of law which unjustly protected law-abiding citizens and law-abiding communities, the Legislature could, and according to the majority view should, have passed an Act altering the law when it. met- subsequently to these decisions.
Commonwealth v. Moyer and Byron, Commonwealth v. Almeida, Commonwealth v. Lowry, and Commonwealth v. Bolish were followed by Commonwealth v. Thomas, 382 Pa. 639, 117 A. 2d 204, which once again based its affirmance of felony murder upon the basic
What was the basis, what were the reasons and principles for the Court’s decision holding Thomas to be guilty of murder? The Court, speaking through Mr. Justice Arnold, said, inter alia:
“In applying the felony-murder statute, we have held that the malice of the initial offense attaches to whatever else the criminal may do in connection therewith. ‘It makes no difference that [the defendant] . . . and the other conspirators could not know in advance the precise course of events that would follow when they attempted to complete their evil designs’: Commonwealth v. Guida, 341 Pa. 305, 310, 19 A. 2d 98.
“If the defendant sets in motion the physical power of another, he is liable for its result. ‘Acts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies them. . . . the law requires [men] at their peril to know the teachings of common experience, just as it requires them to know the law. . . . “the test of murder is the degree of danger to life attending the act under the known circumstances of the case” ’ . . .‘ “He whose act causes in any way, directly or indirectly the death of another, hills him, within the meaning of the law of felonious homicide. It is a*542 rule both of' reason and the law that whenever one’s will contributes to impel a physical force, proceeding from whatever different sources, he is responsible for the result, the same as though his hand, unaided, had produced it . . ’ ‘There can be no doubt about the ‘justice” of holding that felon gunlty of murder in the first degree who engages in a robbery or burglary and thereby inevitably calls into action defensive forces against him, the activity of which forces result in the death of a human being’: Commonwealth v. Almeida, 362 Pa. 596, 605, 629, 68 A. 2d 595.
“As has been said many times, such a rule is equally consistent with reason and sound public policy, and is essential to the protection of human life. The felon’s robbery set in motion a chain of events which were or should have been within his contemplation when the motion was initiated. He therefore should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act.
“ ‘. . . Every robber or burglar knows when he attempts to commit his crime that he is inviting dangerous resistance . . . knows that a likely later act in the chain of events he inaugurates will be the use of deadly force against him on the part of the selected victim. For whatever results follow from that natural and legal use of retaliating force, the felon must be held responsible Commonwealth v. Moyer, 357 Pa. 181, 191, 53 A. 2d 736. (Italics supplied ).
“The driver of a get-away car is guilty of murder in the first degree where the killing was committed by his- accomplices in the course of robbery: Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d 733.
“In Commonwealth v. Doris, 287 Pa. 547, 135 A. 313, we sustained a conviction of a co-feloh for murder in the first degree, even though after the robbery was*543 completed and the conspirators were trying to effect their escape, defendant’s accomplice shot and killed a police officer, at which time defendant was already in the custody of and restrained by police officers.
“In Commonwealth v. Moyer, supra, we held that it was immaterial whether the bullet hilling a third person (police officer) eame from the defendant’s pistol or that of the victim of the robbery.
“In Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464 (reversed on other grounds), we held a conviction of murder in the first degree to be proper even though defendant’s accomplice (in arson) actually set the fire which caused his own death. The defendant there contended that the accomplice’s act was an intervening and superseding force relieving the defendant of the killing. We there said: ‘Courts have a duty, especially in these days when crime has become so prevalent, to see that the lives, the property and the rights of law-abiding people are protected and consequently must delicately balance the scales of justice so that the rights of the public are protected equally with those of persons accused of crime. . . .
“So, too, in the instant case. That the victim, or any' third person such as an officer, would attempt to prevent the robbery or to prevent the escape of the felons, and would shoot and kill one of the’ felons wás ‘as readily foreseeable’ as the cases where an innocent bystander is killed, even unintentionally, by the defendant’s accomplice, or where the victim of the robbery is slain, or where a pursuing officer is killed. The killing of the co-felon is the natural foreseeable result of the initial act* The robbery was the proximate cause of the death. We can see no sound reason*544 for distinction merely because the one hilled was a co-felon. It was a killing in the perpetration of a robbery which was ‘unquestionably contemplated and callously ignored by the defendant, who most certainly intended to commit a crime which he knew might well give rise to it’: Commonwealth v. Sterling, 314 Pa. 76, 80, 170 A. 258.”
Commonwealth v. Almeida, Commonwealth v. Moyer and Byron and all the other recent felony murder decisions of this Court were again approved and the basic and long established principles enunciated therein were reviewed and reaffirmed in a comprehensive concurring opinion of 14 pages. See Commonwealth v. Thomas, 382 Pa. 639, 645.
. Commonwealth v. Thomas, 382 Pa., supra, was handed down on September 26, 1955. The Legislature of Pennsylvania met from January 3, 1955 to May 22, 1956, and from January 1, 1957 to June 20, 1957. If the people of Pennsylvania believed that Commonwealth v. Thomas, Commonwealth v. Bolish, Commonwealth v. Almeida, Commonwealth v. Lowry and Commonwealth v. Moyer and Byron were unjust decisions or laid down principles which improperly or unfairly protected law-abiding citizens from murderers and other dangerous criminals the Legislature could, and, we repeat, under the majority’s view should have changed the law, but the Legislature made no change.
Refutation of Statements and Propositions in the Majority Opinion
It is an indisputable fact that until the cases of Commonwealth v. Bolish and Comnnonwealth v. Thomas the writer of the present majority opinion was the only Justice who dissented in or from any of the aforesaid' decisions- or - opinions of the Court. The' propositions óf law which are adopted by the present niájórity
The specific reason or ground for the present majority opinion — a justifiable homicide — was vigorously urged but was completely and unequivocally rejected by this Court in Commonwealth v. Thomas. It was thus clearly expressed by the writer of the present majority opinion in his dissenting opinion in Commonwealth v. Thomas, 382 Pa., supra, where he said: “I am at a loss to understand how anyone can be found guilty of murder at common law . . . for a . . . justifiable homicide.” There are three convincing answers to this question. In the first place, going all the Avay back to Blackstone, Blackstone says: “If a man, however, does such an act of which the probable consequence may be, and eventually is, death; such killing may be murder, although no stroke be struck by himself and no killing be primarily intended.” IY Blackstone’s Commentaries, §197, page 1594.
The second convincing answer is that a homicide may be justifiable qua a policeman or one defending his life or home, and felonious qua another person, for, as even Blackstone points out, it is murder to wantonly kill a felon.
The third convincing answer is found in a score of cases hereinabove cited which hold that while an accidental or unintentional killing is excusable or justifiable and is not even a felony, an accidental or unintentional killing' which occurs in the perpetration of a robbery, burglary, arson, rape, or kidnapping, is murder. If the majority opinion is correct that a person cannot be guilty of murder in Pennsylvania,
The reason for the origin, development and application of the felony murder doctrine is the protection of society. Without the application of the felony murder doctrine or principle, an unintentional or accidental killing in a hold-up could not' amount, in Blackstone’s day or today, to murder. Yet (legal) malice is, we reiterate, obviously just as much present in the felons, in a so-called justifiable hilling which occurs in a robbery, as it is in an accidental or unintentional hilling which occurs in a robbery. Consequently, if the killing occurred in and as a natural result of the robbery, what does it matter who fired the fatal shot or who was killed? r
Whether the present majority opinion is considered alone or in conjunction with Justice Cohen's concurring opinion, the conclusion is inescapable — they have succeeded in making a shambles of the law of felony murder in Pennsylvania.
How many times do basic principles of law have to be reiterated in order to become the settled law of this Commonwealth? How many times do leading cases have to be cited with approval and approvingly quoted in extenso, in order to become the settled law of Pennsylvania?
It may be trite but it is indisputably true and it is certainly necessary to say that there must be some real stability in our Courts and their decisions, in order to enable businessmen to make contracts, to enable every citizen to know his rights, and every public official to know the powers and limitations of government, and finally, to enable society to protect itself against crime.
Is this Court going to justly and adequately protect law-abiding communities as we have done for over 100 years; are we going to maintain principles and standards and decisions whose “knowne certaintie is the safetie of all”, or are we going to mark our decisions “good for this day and train only”?
Commonwealth v. Almeida, 362 Pa., supra, Commonwealth v. Bolish, 381 Pa., supra, and Commonwealth v. Thomas, 382 Pa., supra, would have to be overruled according to the concurring opinion of Justice Cohen in Commonwealth v. Redline; and Commonwealth v. Bolish and Commonwealth v. Thomas would have to be overruled according to Justice Musmanno’s dissenting opinion in Commonwealth v. Bolish, 391 Pa. 550, 138 A. 2d 447.
See cases infra.
Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464, tlie Court in a footnote said: “At common law there were 8 or 9 felonies, namely, murder, manslaughter, rape, sodomy, robbery, larceny, arson, burglary, and perhaps mayhem: Clark & Marshall, Crimes §3 (4th ed. 1940) ; 1 Wharton, Criminal Law §26 (12th ed. 1932).”
Cf. Commonwealth v. Drum, 58 Pa. 9; Commonwealth v. Bolish, 381 Pa. supra ; Commonwealth v. Thomas, 382 Pa. supra.
Section 919 of The Penal Code of 1939, P. L. 872, 18 PS §4919; Commonwealth v. Johnson, 368 Pa. 139, 81 A. 2d 569. The majority opinion commences its review of relevant authorities by stating: “The only constitutional power competent to define crimes. . . . is the legislature, and courts do well to leave the promulgation of police regulations to the people’s chosen legislátive representatives .... The definition of murder at English' common law . . . alone defines the crime in this State. . . . except for one spe-. cial and presently irrelevant mode of death-dealing by means of intentional train-wrecking, there is no statutory crime of murder in Pennsylvania.” Although not presently important, it seems to me that these statements are inconsistent, and that neither of them is accurate. It is true that murder has never been expressly defined by statute in Pennsylvania and it has been sometimes said that it is “common law murder”. But the latter statement is not accurate. Cf. Commonwealth v. Bolish, 381 Pa. 500, 509, 510, 113 A. 2d 464.
They were reiteratéd in another reéent decision of this-Court;
Justice Charles Alvin Jones was the lone diss,enter.
We believe that Justice Jones’ dissenting opinion in Commonwealth v. Almeida, is diametrically opposed to his present opinion and specifically recognizes that a felon can be found guilty of the murder of his accomplice even if the fatal shot was not fired by one of the felons, provided, as he stated in Almeida, “it can be factually found that the conduct of the defendant or Ms accomplices set in motion a chain of events among whose reason-son,ably foreseeable consequences was a killing stick as actually occurred.” In order to determine the accuracy of our interpretation of Justice Jones’ position in Almeida, we shall quote at length the pertinent parts of his dissenting opinion. He there said (page
Although the question is academic and immaterial, the Justices who composed that Court (and since then Justice Bell in his concurring opinion in Commonwealth v. Thomas, 382 Pa. 639, 117 A. 2d 204) specifically held that this was not dictum; moreover, it was not a new but a long established principle of criminal law. Blackstone said, §197, page 1594: “If a man, however, does such an act of which the probable consequence may be, and eventually is, death; such killing may be murder, although no stroke be struck by himself and no killing be primarily intended ...”
We note that the same basic philosophy was. expressed by Chief Justice von Mósohzisker in Commonwealth v. Parker, 294
When the writer of the present majority opinion says (as he also said in his dissenting opinion in Commonwealth v. Almeida, 362 Pa., supra) that certain propositions stated in the opinion of the Court in Commonwealth v. Moyer and Byron are dictum, it is to be recalled that the Court specifically held in Commonwealth v. Almeida that those propositions 'therein asserted were not dictum. When the writer of the present majority opinion states (as he also did in his dissenting opinion in Commonwealth v. Almeida) that his views are supported by Commonwealth v. Thompson, 321 Pa. 327, 184 A. 97, and Commonwealth v. Mellar, 294 Pa. 339, 144 A. 534, we cannot fail to note that this statement was rejected and refuted, and these cases were clearly distinguished by the Court in its learned exhaustive opinion in Commonwealth v. Almeida. When the writer of the present majority opinion cites 5 cases from other jurisdictions to support his views (as he also did in his dissenting opinion in Commonwealth v. Almeida), we cannot refrain from once again pointing out that those cases were considered and either distinguished or rejected by the Court in Commonwealth v. Almeida. Furthermore, the decisions of this
Realistically, it is just as if defendant’s bullet had ricocheted off the wall and killed his co-felón. . . ......
From the majority opinion in the present case and from the dissenting opinion of Justice Musmanno tiled this day in Commonwealth v. Bolish, we learn for the first time that an Assistant District Attorney had nolle prossed the murder indictment in Commonwealth v. Thomas. We do not have before us the record in the second Thomas case, and therefore do not know whether new facts and circumstances justified ihe actions of the officer who is supposed to protect the public and to obey the mandates of the Supreme Court of Pennsylvania. However, if the Assistant District Attorney caused the murder indictment against Thomas to be nolle prossed in intentional defiance of the the opinion of the Supreme Court of Pennsylvania in Commonwealth v. Thomas, 382 Pa., he should have been held “in contempt” and severely punished.
In the majority opinion, Commonwealth v. Almeida, like Mohammed’s coffin, is suspended between Heaven and earth. However, unlike Mohammed’s coffin, which is headed upward toward Heaven, the coffin containing Commonwealth v. Almeida is pointed downward in preparation for a speedy flight into the bowels of the earth.
A couple of centuries ago the punishment inflicted upon a person convicted of a minor offense was so terrible (often death)
Reference
- Full Case Name
- Commonwealth v. Redline, Appellant
- Cited By
- 228 cases
- Status
- Published