(dissenting). This appeal, like that in State v. Young, 191 Conn. 636, 469 A.2d 1189 (1983), decided today, raises serious questions about the interpretation of the felony murder statute, General Statutes § 53a-54c (Rev. to 1977). As in State v. Young, I disagree with the majority's reading of that statute, and therefore dissent in this case as well.
The defendant herein was charged with felony murder for having hired someone to set a fire in a building in which a child died. At the trial and on this appeal, he maintains that he was entitled to have the jury instructed to consider the affirmative defense provided by § 53a-54c.1 He also argues, as did the defendant in State v. Young, that he was entitled to an acquittal because the facts alleged by the state do not meet the statutory requirement that the death have occurred “in furtherance of” the underlying crime of arson. Because I agree with this latter argument, for reasons set out in my dissent in State v. Young, I need not reach the other claims of error advanced by the defendant.
*669It is worth noting, however, that the reading of § 53a-54c which, in State v. Young, compelled the majority, for cases of arson murder, to treat “in furtherance of” as surplusage, now compels the majority to excise the affirmative defense that the statute expressly provides. The majority determines that the defendant was not entitled to his requested instruction on § 53a-54c’s affirmative defense because the defendant could not satisfy the first of the statutory conditions of this defense, which required him to prove that he: “(A) Did not commit the homicidal act or in any way solicit, command, importune, cause or aid the commission thereof . . . .” The majority does not dispute the defendant’s contention that there was no evidence that he ever actually intended, in hiring his accomplice, to have him do anything other than to set a fire. The defendant plausibly argues that he therefore never committed or solicited any “homicidal act” whatsoever. To bridge the gap between the defendant’s actual proven intent and the statutory condition of a homicidal act, the majority presumes, irrebuttably, that: “Under the circumstances of this case the ‘homicidal act’ was the arson of the building which resulted in the death of a child.” Implicit in the majority’s decision is the conclusion that, in the case of felony murder charges arising out of arsons, there can never be an occasion for the affirmative defense which § 53a-54c expressly provides. Indisputably, the felony murder statute itself makes no such categorical distinction between deaths resulting from robberies or burglaries or arsons but rather allows an affirmative defense whenever it is factually appropriate. Bearing in mind the usual command to read penal statutes strictly; State v. Gallagher, 191 Conn. 433, 441, 465 A.2d 323 (1983); State v. Tedesco, 175 Conn. 279, 291, 397 A.2d 1352 (1978); I find the majority’s equation of arson with a homicidal act unacceptable.
*670As in State v. Young, I believe that the majority’s construction is not only unpersuasive on its face but is undermined by the subsequent enactment of the 1979 arson murder statute, General Statutes § 53a-54d. The legislature’s decision to eliminate the affirmative defense in that statute was, I believe, a substantive change in the existing law which this court should not implement retroactively.
I therefore disagree with the affirmance of the defendant’s conviction in this case.
“[General Statutes (Rev. to 1977) ] Sec. 53a-54c. felony murder. A person is guilty of murder when acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, sexual assault in the first degree, sexual assault in the first degree with a firearm, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (A) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (B) was not armed with a deadly weapon, or any dangerous instrument; and (C) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (D) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”