(concurring as explained):
I concur in reversal of the convictions of the Walkers of felony-murder, and in affirmance of the other convictions.
I also concur in Parts I and II of the opinion of the court.
As to Part III of the opinion, concerned with the felony-murder problem, had the District Court permitted counsel for the Walkers to make the argument he proposed, the error in the instructions on felony-murder as it affected them might have been overcome, but the judge correctly interpreted his instructions to preclude the argument. The error as I view the matter was in the instructions themselves, in not qualifying the jury’s right to find the Walkers guilty of felony-murder for a killing they did not commit, by requiring that under the principle of aiding and abetting the jury must find that the killing by Heinlein was within a purpose or plan common to the Walkers with Heinlein in the attempted rape, not an independent act of Heinlein. The omission of such an instruction in Carter v. United States, 144 U.S.App.D.C. 193, 445 F. 2d 669 (1971), cert. denied, 405 U.S. 932, 92 S.Ct. 988, 30 L.Ed.2d 806 (1972), was the basis of the dissent in that case (Fahy, J., concurring in part, dissenting in part, 144 U.S.App.D.C. at 197, 445 F.2d at 673).
In aid of the application and administration of our felony-murder statute in the future it seems desirable to call attention to the difference between the present decision' and the fairly recent decision in Carter. Carter was tried for robbery and felony-murder. The killing of the cabman who was being robbed was not by Carter but by his co-felon in the robbery, Whiteside. Under the evidence the jury could have found that Carter was not guilty of felony-murder, of which he was convicted, had the jury been instructed under the common purpose criterion applicable to that offense when another of the robbers kills the victim. The Carter majority declined to take this view of the law, stating that although “[lit may be true that the ultimate tragedy of the cab driver’s senseless murder was far from appellant’s [Carter’s] mind,” nevertheless:
. under our statutory law, his [Carter’s] participation in the robbery resulting in a killing made him guilty of murder in the first degree, of which he was duly convicted.8
144 U.S.App.D.C. at 196-197, 445 F.2d at 672-673.
The instructions in Carter on felony-murder had included the following:
Under the circumstances of this case, the elements of the offense of murder in the first degree which the Government must prove . . . are as follows:
(4) That the killing was within the scope of the robbery or attempted robbery which Whiteside and [appellant] undertook to commit, if you find they so undertook to do so.
144 U.S.App.D.C. at 198, 445 F.2d at 674.1
*172Even if the common purpose argument could have been advanced under this part of the instructions of the District Court in Carter, the argument would have been inconsistent with the majority position taken by the court on the appeal in that case. The majority, erroneously the dissenting opinion urged, adhered to the position that Carter was guilty of felony-murder if White-side killed the cabman in the course of the robbery in which both participated, all else aside. The court now departs from Carter, properly I think.2
The addition by the court in the present opinion of the concept of the natural and probable consequences of the acts done in perpetration of the felony I think is appropriate if read consistently with the basic concept of a common purpose or plan. The felony-murder statute, in its application to a co-felon who does not commit the homicide, should not be extended beyond the confines of the law of aiding and abetting.
As to Part IV of the opinion, the contention of the Walkers based on denial of their motion for a severance, I consider now in light of our reversal of their convictions of felony-murder and our affirmance of Heinlein’s conviction of that offense. It follows that should the Walkers be retried for felony-murder Heinlein would not be tried with them. The severance problem is thus limited now to its bearing upon the convictions of the Walkers for the attempted rape. The motion for severance was based primarily, however, upon evidence with respect to conduct of Heinlein deemed prejudicial to the Walkers in their trial with Heinlein for felony-murder. The convictions of the Walkers for only assault with intent to commit rape while armed3, I think, were not significantly affected by the joint trial with Heinlein for that offense. The denial of the motion for severance accordingly is not ground for reversal of those convictions of the Walkers which are affirmed.
. This is so even though appellant was the accomplice of Whiteside, who did the actual shooting. 22 D.C.Code § 105. In pertinent part, 22 D.C.Code § 2401, defining first degree murder, reads :
Whoever, being of sound memory and discretion, . . . without purpose so to do kills another in perpetrating or attempting to perpetrate any robbery ... is guilty of murder in the first degree.
. The instructions in Garter also included the following:
If two or more persons acting together and jointly are perpetrating a robbery or are attempting to perpetrate a robbery, and one or more of them, in the course of the robbery or attempted robbery, kills another person, then all the persons involved in the robbery or attempted robbery are guilty of murder in the first degree.
*172If one person is perpetrating or attempting to perpetrate a robbery and one or more other persons aids and abets him in so doing, and the first of these persons in the course of the robbery or attempted robbery kills a human being, then the person or persons who aided and abetted him in the robbery or attempted robbery and the person who committed the killing are both equally guilty of murder in the first degree.
. Footnote 11 of Judge McGowan's opinion for the court is puzzling in light of what was considered and held in Carter. The reasons now assigned for the affirmance of Carter’s conviction of felony-murder do not appear in the majority opinion in that case and I suggest would not have justified affirming his conviction of first degree murder had the majority deemed the instruction on felony-murder not to be correct with respect to a co-felon in Carter’s situation.
. Referred to hereinabove, for short, as the attempted rape.