*135Dissenting Opinion by
Mb. Justice Musmanno:A case that is decided erroneously will never die until the error is corrected. Daniel Bolish, the defendant in this case, was tried and convicted of first degree murder although the Commonwealth did not even prove that a murder had been committed. Section 701 of The Penal Code of 1939 provides: “All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping, shall be murder in the first degree.”
Bolish was convicted of the murder of Robert J. Flynn, but Flynn did not die as the result of murder. His death was entirely accidental. No one killed Flynn, no one tried to kill Flynn, no one wanted to Idll Flynn. In order to sustain the conviction of Bolish, Section 701 above cited would have to read that: “All deaths which shall occur during the perpetration of or attempting to perpetrate arson shall be murder in the first degree.” But the statute does not so read. It says that “All murder which shall be perpetrated . . .” Where is the murder in the death of Flynn ?
TMs Court has no right to read into a statute what is not there. When the Legislature decides to impose the penalty of death or life imprisonment for the crime of arson, it will say so, in language which is clear an'd unmistakable. It has not said so up to the present time and I cannot help but regard this Court’s arbitrary interpretation of the statute as indicated in the Bolish case as anything other than judicial usurpation of legislative powers.
The Bolish case was considered by this Count at 381 Pa. 500 and at 391 Pa. 550, and in each instance *136the Majority held that Bolish could be found guilty of murder in the first degree even though it is admitted that Flynn’s death was accidental. The Majority argued in those two appeals, as it does today, that, since Bolish had had a hand in planning the arson which Flynn was perpetrating when an accidental explosion killed him, he was guilty of first degree murder. In addition to extending the statute beyond its plain meaning, the Majority at 391 Pa., extended the physical facts. The Majority Opinion said that there were: “both direct and circumstantial evidence showing • the presence of Bolish in the Torti house at the time of the explosion.” The truth of the matter is that there was neither direct nor circumstantial evidence to prove the presence of Bolish at the Torti house at the time of the explosion. In my Dissenting Opinion I contested this conclusion on the part of the Majority. I was rather emphatic in asking for facts on which the Majority built its unwarranted assumption: “What has happened to the noble Institute of Authentic Fact? Has it crumbled and may facts now be fashioned out of thin air? Does the Majority operate on the theory that a repetition of an erroneous statement cleanses it of the impurity of error? In this respect I must say that two times two does not become five on the second or even two-hundredth reiteration of the arithmetical incongruity.”
The Majority Opinion in the present appeal concedes that there was no direct evidence of Bdlish’s presence in the house at the time of the fire but says that there was “ample circumstantial evidence to indicate his presence and participation in the act of arson.” But tills is an argument to establish X by proving Y. Unless it can be shown that the death of Flynn was part of the plan to successfully commit arson, Bolish cannot be convicted of first degree murder. The *137death of Flynn did not further the design to commit the felony Of arson; in point of reality, it became a barrier to its accomplishment.
But, in any event, the, decision in the case of Commonwealth v. Redline, 391 Pa. 486, which overruled the Thomas decision (382 Pa. 639) rather well shattered the supposed reasoning on Which the Bolish conviction rested. If the Redline decision is sound, and, of course, it is, the Bolish conviction of murder cannot be supported in law, logic, reason, or common sense.