Dissenting Opinion
Gordon, P. J.,March 28, 1949. — While I am in accord with the conclusion of the majority of the court with respect to all, except two, of the reasons assigned for a new trial in this case, I am compelled to dissent partially as to one of their conclusions and entirely as to the other. With respect to the first of them, I concur in the majority’s final conclusion, but cannot agree with the reasoning by which it was reached; *370and as to the other, I am in complete disagreement with both the reasoning of the majority and the conclusion reached by them. The first of these questions relates to the method of drawing the jury in the case, and the second to that part of the charge of the learned trial judge in which he instructed the jury, in effect, that, under the law of Pennsylvania, it makes no difference whether Officer Ingling, the deceased was, on the one hand, killed by defendant or one of his confederates in their flight from the scene of the robbery, or, on, the other hand, by a bullet fired by one of the deceased’s fellow officers who were attempting to apprehend defendant and his companions.
With respect to the first of these questions, namely, the method of drawing the jury, I cannot agree with the majority of the court that the Act of 1935, which authorizes the drawing of two alternate jurors, has the effect of establishing a jury of 14, rather than one of 12, for the trial of criminal cases. If it does, it would be clearly a violation of article' I, see. 6 of our Constitution, which provides that “trial by jury shall be as heretofore, and the right thereof shall remain inviolate”. Under that section, the legislature could no more set up a jury of 14, or of any number other than 12, for the trial of criminal cases. The conception of a jury consisting of neither more nor less than 12, as it existed at the time of the adoption of the Constitution, is one of the fundamental characteristics of the common-law jury, and cannot constitutionally be changed by legislative enactment. On the other hand, it is well settled, both in this State, and by the overwhelming weight of judicial authority in other jurisdictions, that the constitutional guarantee of trial by jury was not intended to freeze the machinery by which a common-law jury is secured, and that the legislature is at liberty to vary, in response to changing *371social conditions, the method and manner of securing such a jury, so long as the substantial rights of an accused to it are secured to him. Thus in Commonwealth v. Fugmann, 330 Pa. 4, in which our alternate juror law was under consideration, our Supreme Court said:
“It is well settled that the word ‘inviolate’ as used in the Constitutional provision quoted means freedom from substantial impairment. It does not import rigidity of regulation in the manner of impanelling a jury.”
With these principles in mind, it seems clear that defendant was not denied any of the fundamental rights of a jury trial guaranteed to him by the Constitution. It is not contended that the substitution of the first two alternates to take the place of the two on the original jury that he and the Commonwealth had challenged, however belatedly, resulted in putting into the jury box to try him anyone unacceptable to defendant or disqualified by bias, interest, or otherwise. Both of those jurors were acceptable as alternates; and, at whatever time in the course of the trial they may have been substituted, in the exercise of the trial judge’s discretion, defendant could not have objected to the substitution. The substitution here occurred at the beginning of the trial, before any evidence was heard, instead of at a later stage, and that fact in itself negatives any logical reason for objection by defendant, at least unless it clearly appears, as it does not here, that he was prejudiced by the action of the trial judge when the challenges were allowed. The final jury that tried him was still in the process of selection, and until it was selected, I believe the court acted well within the discretion vested in it by the Act of March 6,1901, as amended by the Act of July 9, 1901, P. L. 629: Commonwealth v. Curry, 287 Pa. 553.
In addition, conceding that defendant might have objected and protected himself by an exception, I think *372whatever constitutional right he might have asserted in this connection is one which a defendant may waive either expressly or by necessary implication. When, therefore, instead of taking a definite stand by exception and objection, he tacitly acquiesced in and accepted the court’s ruling without question, he must be taken to have waived the objection he might have made. This prevents him from now taking advantage of his belated complaint that a right which he might have asserted, but did not, was denied him. This is especially so as he has wholly failed to show that he suffered any real injury from the court’s action. In addition, when defendant added to the disruption of the original jury by himself challenging, immediately after the court ruled, another of the original 12 jurors, thereby bringing into the original group of 12, the second or fourteenth juror accepted, he completely abandoned the objection that he might perhaps have insisted upon, and joined in the action of the court which he now asks us to disapprove. In these circumstances he concurred in the substitution of both the ■ alternates at the very beginning of the case as a part of the jury to try him, and will not be heard to complain that unacceptable jurors were thus wrongfully forced upon him. A different question arose, when the trial judge proceeded to call two more jurors as additional alternates after the thirteenth and fourteenth already drawn and accepted had been seated as members of the original jury. With the drawing and substitution of those jurors, was not the right to draw 14 jurors exhausted? I think it was, and resulted in irregularly mingling with the jury, during the hearing of the testimony, two persons whose presence was not authorized by the Alternate Juror’s Act. Defendant could have protected himself against this irregularity by a timely objection, but did not do so. However, as these latter jurors took no part in the jury’s delibera*373tion after it retired to consider its verdict, I think it is too late to revive that question now, after the verdict has been rendered. It certainly would have been better practice to have drawn no more jurors after the first two alternates had been substituted; but there is no suggestion in the record that their presence among the other jurors contributed in any way to an improper decision of the case by the jury that actually rendered the verdict. On both of these grounds, therefore, I concur with the decision of my colleagues that the learned trial judge committed no reversible error in permitting the challenges and substitution complained of by defendant.
Turning now to the second question, I find myself in complete disagreement with the majority of the court in its holding that it was immaterial whether Officer Ingling was killed by defendant or one of his confederates, on the one hand, or by a fellow officer on the other. If this question was material to the determination of defendant’s guilt, all the evidence touching upon it not only rested entirely upon the oral testimony of the Commonwealth’s witnesses, but also was sufficiently vague and uncertain to admit of the jury resolving the question in favor of defendant had it been submitted to them. Consequently, the trial judge’s many times repeated charge to the jury, that it made no difference whether the deceased was killed by an officer or by one of the robbers, was clear error, unless that charge was based on sound principle or binding precedent.
The pertinent part of our murder statute, The Penal Code of June 24,1939, P. L. 872, sec. 701,18 PS §4701, provides that:
“All murder which shall be . . . committed in the perpetration of . . . robbery, . . . shall be murder in the first degree. All other kinds of murder shall be *374murder in the second degree. The jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether the person is guilty of murder of the first or second degree.”
This has been the law of Pennsylvania from the early days of our existence as an independent Commonwealth, and it is highly significant that the legislature has never seen fit to define murder by statute. It has preferred, instead, to leave the definition of the crime itself to be gathered from the well settled and carefully developed principles of the common law which have always governed this offense. The Act of 1939 adds nothing to the definition of murder, but merely divides the crime into two degrees, and places, inter alia, a murder committed in the perpetration of, or attempt to perpetrate, a robbery in the category of murders of the first degree. The act does not create any crime whatever. It takes the already existing crime of murder, which at common law was not divided into degrees, and, for purposes of punishment, sorts every murder into one or the other of two classes upon the basis of the circumstances that characterize its commission. The language of the act admits of no other rational interpretation: Vide, the statutory construction Act of 1937, which requires legal terms to be given their settled legal meaning in interpretating statutes on the presumption that the legislature intended to use them in that sense. Hence, before the act can come into operation, it must be shown that the death was a murder for which defendant is responsible in law. If it was not, the fact that the death occurred while defendant was committing a robbery does not make it a murder by him in any degree.
I must confess that I am troubled by certain decisions of our Supreme Court which hold, in effect, that *375any killing during the perpetration of one of the enumerated felonies is murder of the first degree.1 I would not have regarded such decisions as consonant with fundamental principles of interpretation. However that may be, those cases dealt with situations in which the death was caused by an act of the felon or felons, which clearly distinguishes them on their facts from the present case, and destroys them as precedents controlling the precise question here presented.
Except for the case of Commonwealth v. Moyer, 357 Pa. 181, which will hereafter be discussed at length, I know of no decision, either in Pennsylvania or elsewhere, which has held a defendant, or his accomplices, responsible for a death caused by a third person acting deliberately in direct opposition to the felons, and not in any way cooperating in furthering the criminal enterprise, merely because the felons’ actions “set the stage” for the act of the third person which caused the death. The basic theory of personal responsibility for crime is, I believe, to the contrary, and is supported by abundant judicial decisions. It is an ancient and settled axiom of criminal justice, that no man shall be held criminally responsible for the act of another unless that other is in the position of a particeps criminis with the accused and the act is committed in furtherance of a common design.
In those jurisdictions where this principle has received the attention of the courts it has been uniformly upheld and applied. In Commonwealth v. Campbell, 7 Allen’s Reports 541 (Mass.), which held that a rioter cannot be held guilty of murder or manslaughter by reason of the accidental killing of an innocent person *376by those engaged in suppressing the riot, the Massachusetts Supreme Court said:
“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 him or in furtherance of a common object or purpose. Certainly that cannot be said to be an act of a party in any just sense, or on any sound legal principle, which is not only not done by him, or by anyone with whom he is associated or connected in a common enterprise, or in attempting to accomplish the same end, but is committed by a person who is his direct and immediate adversary, and who is, at the moment when the alleged criminal act is done, actually engaged in opposing and resisting him and his confederates and abettors in the accomplishment of the unlawful object for which they are united. . . . The real distinction is between acts which a man does either actually or constructively, by himself or his agents or confederates, and those which were done by others acting not in concert with him or to effect a common object, but without his knowledge or assent, either expressed or implied. For the former the law holds him strictly responsible, and for all their necessary and natural consequences, which he is rightfully deemed to have contemplated and intended. For the latter he is not liable, because they are not done by himself or by those with whom he is associated, and no design to commit them or intent to bring about the results which flow from them can be reasonably imputed to him.”
Likewise in Commonwealth v. Moore, 121 Ky, 97, 88 S. W. 1085, the court, in holding a defendant not guilty of murder for the death of a bystander who was struck by a bullet fired at the accused in self-defense by the intended victim of a robbery, said:
*377“In order that one may be guilty of homicide, the act must be done by him actually or constructively, and that cannot be, unless the crime be committed by his own hand, or by the hands of someone acting in concert with him, or in furtherance of a common object or purpose. The defendants can in no sense be said to have aided or abetted John Young, for he was firing at them; and to hold them responsible criminally for the accidental death of a bystander, growing out of his bad aim, would be carrying the rule of criminal responsibility for the acts of others beyond all reason. Suppose, instead of killing an innocent bystander, Young had killed Moore, one of the robbers, would the survivor have been guilty of murder? And yet, if the principle sought to be maintained by the commonwealth be sound, the survivor would necessarily be guilty of murder, because the owner of the house to be robbed had killed his companion, for he could just as truly be said to have aided and abetted the owner of the house in that case as in this. Indeed, the matter could be carried still further. The dead robber would also be guilty of murder, because his part in the causation of the homicide of which he was the victim would have been precisely the same as that which resulted in the death of Anderson Young. In other words, the acts of the defendants provoked and justified the shooting on the part of John Young, and if they are criminally responsible for the accidental death of a bystander shot by Young, they would also be guilty of murder if he had killed one of themselves.” See also Butler v. People, 125 Ill. 641; State v. Oxendine, 187 N. C. 658.
Save for the case of Commonwealth v. Moyer, supra, handed down by our Supreme Court in 1947, I know of no decision holding contrary to the principle laid down in the 'cases cited above which would not exculpate this defendant from legal responsibility for *378Officer Ingling’s death, if, as a matter of fact, he was killed by the bullet of a fellow officer during the exchange of fire while they were attempting to apprehend the robbers; and whether he was so killed was a question for the jury, which could have found either way under the oral evidence before it. Nevertheless, the court withdrew that question from the consideration of the jury by expressly instructing it that, even if the deceased was killed in that manner, the killing would constitute murder of the first degree by defendant. In so charging, the learned trial judge relied upon language used in the opinion in the Moyer case, and I must concede that the reasoning employed by the Supreme Court in sustaining the conviction there sustains the charge of my brother Carroll here. I have no quarrel with the result reached in the Moyer case, if the opinion is read in the light of the facts then before the court. My position is that the two cases are clearly distinguishable on their facts, that each presents a different question, that the Moyer decision upholding his conviction is thoroughly sound in law and is supported by the four decisions from other jurisdictions cited in it, but that, so far as the opinion appears to predicate the decision upon the broad ground that persons engaged in the commission of felonies are in all circumstances guilty of the murder of anyone who may die in the course of the felony, regardless of how or by whom he is killed, it went far beyond what was necessary to decide that case, and announced a wholly new theory of criminal responsibility, which is in direct conflict with established principles, and the value of which is highly questionable.
In order to justify this position a careful and detailed analysis of the Moyer decision, and a comparison of it with the facts of the present case are required. The facts in the Moyer case as given in the Supreme *379Court’s opinion were that, in the course of an attempted robbery of a gasoline station owned by one Shank, defendant Moyer forced Shank’s employe, Zerbe, at the point of a gun to precede him toward the door of the building where Shank was. As this was occurring, Zerbe moved sufficiently to the left to enable Moyer to see Shank. Moyer then began firing at Shank, who returned the fire twice, hitting Moyer both times. Zerbe, who was still more or less between Shank and Moyer, started to run toward the corner of the building, when Moyer again began shooting. Zerbe fell mortally wounded, and the fatal bullet, which had completely penetrated his body, was found on the ground under it. Zerbe had faced Shank throughout the shooting, and the bullet found under Zerbe’s body was positively identified by an agent of the Federal Bureau of Investigation as having been fired from Moyer’s gun.
Practically all of these facts appeared not only in the Commonwealth’s case, but also were substantially confirmed by Moyer’s confession, which was admitted in evidence. In the light of them, I cannot see that they raise any question as to who actually killed Zerbe, such as is raised in the present case as to who killed Officer Ingling. But even if Zerbe had been accidentally killed by Shank, that fact did not raise the present question, because, in furtherance of the robbery Moyer had forced Zerbe at the point of his gun into the field of Shank’s fire, a position of danger which resulted in his being slain. The authorities unanimously agree that such an act by a felon is a direct cause of the death that follows upon it. Thus, in Keaton v. State, 57 S. W. 1125, and Taylor v. State, 55 S. W. 961, each of which involved the killing of the same person in the same train robbery, in which, to quote the resume of the facts of those cases from the opinion in the *380Moyer case, “the defendant and others went to rob a train, and, after stopping it, forced the fireman to the door of the express car, after being warned that some one would probably commence shooting at them from the rear of the car, and persons resisting the attempted robbery, and intending to kill the robbers, shot and killed the fireman”, the Court of Criminal Appeals of Texas upheld the conviction of the accused robbers for murder. (Italics supplied.) So also, in Johnson v. State, 38 So. 182, it was held that one who frees the hands of an insane person, whom officers are attempting to arrest, thereby enabling him to kill one of the officers, is guilty of murder. And again, in the so-called anarchists’ case, Spies et al. v. People, 122 Ill. 1, the Illinois Supreme Court, quoting from Reg. v. Sharpe, 3 Cox Crim. Cas. 288, held that “He, who inflames peoples’ minds and induces them by violent means, to accomplish an illegal object, is himself a rioter, though he takes no part in the riot”.
In the development of its new theory of a criminal’s responsibility for the acts of third persons not associated in the criminal enterprise, the Moyer opinion cites only the four decisions in criminal cases from other jurisdictions referred to above, and it is manifest that they fall far short of supporting that theory. The facts in each of those cases disclosed the same kind of a situation as that presented in the Moyer case; that is to say, the death was the direct result of a deliberate act of the accused or his confederates, or of their liberation of an apparent homicidal lunatic, or, as in the anarchists’ cases the crime was committed by persons who had been incited to riot by defendants, and I venture the conviction that the theory of the Moyer opinion on which the learned trial judge’s charge was framed is wholly unsupported by these or any other judicial precedent.
*381The principles governing civil liability for tort spring from considerations foreign to the criminal law, and are of little help in reasoning by analogy. Though civilly responsible, in certain circumstances, for the crime of his servant, a master is not liable criminally, unless it was committed at his direction or with his knowledge and approval, and even the negligence of a tortfeasor may be transformed from a proximate into a remote cause by the intervening negligence of a third person.
Finally, I think any question of Moyer’s responsibility based upon the deceased having been killed by Shank, the gasoline station owner, was entirely eliminated from that case when the verdict of guilty was rendered after a charge by the court in which the jury was twice expressly instructed, both in the charge, and in its affirmance of one of defendant’s requests, as follows:
“Of course it must follow, if you would be of the opinion under all the evidence in this case that it was an accidental killing of Zerbe by Shank, it is possible that these defendants . . . may not be found guilty at all. . . .” Supreme Court’s opinion, page 187. The request affirmed was:
“The defendant is entitled to an acquittal unless the Commonwealth has produced evidence of such a quality as to prove beyond a reasonable doubt that the bullet causing the death of the deceased was fired from the gun of either of the defendants.”
Surely the verdict of guilty after such a charge conclusively established that Shank did not kill the deceased, but that Moyer or his associates did and rendered moot any discussion of the legal effect upon the latter’s guilt of Shank’s having done so.
In conclusion,, I maintain, first, that Commonwealth v. Moyer, did not so settle the law of Pennsylvania *382on the question with which the opinion dealt as to make it a binding precedent in this case; second, that the settled law in other jurisdictions has been held to be to the contrary, both on principle and precedent; third, that the factual question of who killed Officer Ingling was vital to the determination of defendant Almeida’s guilt or innocence, and was exclusively for the jury, which alone had the right to determine it, and fourth, that it was fundamental error for the court to withdraw it from the jury by instructions which practically directed them to disregard it in their deliberations. It is not at all unlikely that a careful examination of the testimony would strongly tend to convince most minds that the jury would probably have found against defendant. But this consideration is entirely beside the point. It is not what the court en banc believes the fact to have been, but what the jury could have found, had it not, in effect, been forbidden even to consider the subject. Under our system of administering justice, the worst, as well as the best, of us are entitled to a trial according to the law of the land, and to demand that the separate functions of court and jury be scrupulously observed to the end that no man, even an Almeida, however evil and lawless he appears to have been, shall be condemned to imprisonment or death, unless every fact material to his guilt is found by a jury. In no other way can equal and impartial justice be administered to all. As was said almost a century ago by Chief Justice Black of our own Supreme Court in Commonwealth v. Sankey, 22 Pa. 390: “But even a knave must not be punished for one offense because he has been guilty of another.”
For these reasons I feel compelled to dissent from the majority decision of the court.
Commonwealth v. Kelly, 333 Pa. 280; Commonwealth v. Lessner, 274 Pa. 108. Commonwealth v. LeGrand, 336 Pa. 511, was an appeal from the fixing of the death penalty after a plea of guilty to an indictment for murder.