On Rehearing En Banc
Before BAZELON, Chief Judge, and FAHY, Senior Circuit Judge, and DANAHER; BURGER, WRIGHT, Mc-GOWAN, TAMM, LEVENTHAL and ROBINSON, Circuit Judges, sitting en banc. LEVENTHAL, Circuit Judge:Appellant Fuller.was prosecuted on a three count indictment. Count I charged first degree felony-murder, Count II charged first degree premeditated murder, and Count III charged rape. All the counts arose from the same crime. At his trial he was convicted of first degree murder on Count I, of manslaughter as a lesser included offense on Count II, and of rape. His appeal raised numerous contentions that his rights had been violated by police conduct before and after arrest. A division of the court resolved those contentions against him, and upheld his conviction of rape.1 Appellant urges that those issues were decided incorrectly by the division. After considering appellant’s contentions, the court eg., banc has decided not to grant rehearing as to those issues. On those questions, therefore, the opinion of the panel issued November 29, 1967 stands.
On the appeal counsel also argued that the homicide convictions must be reversed because the trial judge’s charge was erroneous. The trial judge submitted two homicide counts to the jury: Count I charging first degree felony-murder; and Count II, charging second degree murder, as reduced by the. trial judge from the first degree premeditated murder charged in the indictment.
Appellant’s counsel contend that the judge erred in instructing the jury to render a verdict on each count, and in failing to instruct them that these were alternative counts, and that a verdict of guilty on Count I prohibited a verdict of guilty on Count II and vice versa.2 That contention is based on the authority of Naples v. United States, 120 U.S.App.D.C. 123, 131, 344 F.2d 508, 516 (1964) (Naples II), where a division of this court held, one judge dissenting, that it *1222was prejudicial error to refuse to instruct that the jury could not find the defendant guilty of both first and second degree murder.
Although appellant’s trial counsel made no objection to the trial judge’s charge as given, it is argued that the giving of a charge defined as “prejudicial error” (in Naples II) is also “plain error” 3 that must be reversed on appeal.
On the same day that the division issued its opinion rejecting appellant’s other claims, the court en banc set for en banc consideration and determination the sole question whether “the trial court committed reversible error in failing to instruct the jury that it could not convict both on Count I, charging first degree felony-murder, and on Count II, charging second degree murder (as reduced by the trial court from a charge of premeditated murder).”
In Naples II, the court -held that the first and second degree murder statutes 4 read together made clear “that a single offense cannot be both first and second degree murder.” 5 And, “since the jury found appellant guilty on both counts,” 6 the refusal to charge in the alternative was held prejudicial error. The division did not spell out the precise charge the trial judge was required to give when submitting both first and second degree murder to the jury. The clear implication of Naples II, however, is that the jury must be charged to find the defendant not guilty of second degree murder if he is found guilty of first degree murder. Thus, the majority did not dispute the accuracy of this reading of its intention by the dissenting judge. Moreover, the understanding that the conviction on one count requires acquittal on the other has been explicitly set forth in a responsible effort by the bar to provide a guide of standardized instructions.7 Taking this as the intention of the court in Naples II, we overrule this aspect of that opinion for the reasons set forth in Part I of this opinion en banc. In Part II we point out that defendant would, on timely request, have been entitled to an instruction different from that given by the trial judge, but also different from that contemplated in Naples II.
I
1. Naples II is premised on a theory that first and second degree murder are *1223distinct and inconsistent offenses. We therefore start by considering under what circumstances the jury may not convict of two distinct offenses arising out of the same factual situation.
Sound doctrine generally permits jury convictions of legally distinct offenses, but precludes a jury verdict finding a defendant guilty of two offenses that are inconsistent with each other as a matter of law.8 Where such inconsistency is present the jury should be charged in the alternative — to convict of one offense or the other, but not both. Such a charge heightens the jury’s understanding of the separate legal requisites for each offense. To determine whether the relation between particular offenses mandates application of an alternative charge requires investigation of the common law and statutory background of the crimes.
A familiar example of inconsistency is that of the common law offenses of larceny and receiving stolen goods. At common law a defendant could not be convicted at the same time for both larceny and receiving, because an element of the crime of receiving is that the goods be “received” from another person after they are stolen. A thief cannot receive from himself. This inconsistency precluded verdicts of guilty as to both offenses,9 and this bar was maintained when essentially these same offenses have been statutorily defined.10
Another example of inconsistency is carnal knowledge, made criminal by 22 D.C.Code § 2801, and taking indecent liberties with a child, made criminal by the Miller Act.11 Here the inconsistency results from the Miller Act’s express exclusion12 of crimes of carnal knowledge from the area that the Miller Act— with its liberalized parole and release procedures — was designed to cover. Here too, the jury must be told that they may not find the defendant guilty of both offenses. If he is guilty of carnal knowledge, he is not within the Miller Act.13
2. In appellant’s case, we are dealing with criminal homicides. We begin our analysis with consideration of the case as of the time of the indictment. There was no anomaly in indicting appellant for both first degree premeditated murder and first degree felony-*1224murder. The offenses are distinct in the sense that they have different elements.14 One requires that the slaying be done with “deliberate and premeditated malice,” the other requires that the killing occur in the course of certain enumerated felonies. The same slaying could be both: It could both occur during the course of a rape, and also be the product of the killer’s deliberate and premeditated act.
3. Obviously there is a need to be careful to prevent injustice when what is essentially a single course of conduct may be prosecuted as more than one offense, under more than statutory provision. Such injustice is obviated by the rule prohibiting the imposition of consecutive sentences, in appropriate cases, even when the defendant has committed two or more legally distinct offenses.15 Of course, a defendant committing a single homicide cannot be given consecutive sentences for both first degree murder and another crime of homicide.16 However, the fact that punishments may not be cumulative plainly does not mean that multiple convictions are impermissible. This is quite clear from our opinions.17 Insofar as Naples II implies to the contrary,18 it is disapproved.
There are sound reasons for permitting the jury to render verdicts as to separate offenses even where consecutive sentences are not permitted. For example, in the murder situation, a prosecutor should be permitted to proceed on both first degree murder theories. Perhaps the jury will believe one and not the other, and perhaps the jury will believe both. We see no reason for a rule of law that would require the prosecutor to elect between the offenses before the case is sent to the jury. Nor do we see why the jury must elect. Permitting a guilty verdict on each count— if warranted by the facts — may serve the useful purpose of avoiding retrials by permitting an appellate court, or a trial court on further reflection, to uphold a conviction where- there is error concerning one of the counts that does not infect the other. Moreover, that *1225course precludes a range of double jeopardy contentions.19
There is no general reason why the jury should not be permitted to render a verdict on each theory, so long as the offenses are not in conflict and no aspect of the case gives reasonable indication that the jury might be confused or led astray.
4. With these general principles as background, we come to the situation that developed in appellant’s trial when the judge reduced Count II from first degree premeditated murder to second degree murder. This brings us to the relationship between the offenses of first degree felony-murder and second degree murder.
In Naples II the division focused on 22 D.C.Code § 2403, as making clear that “a single offense cannot be both first and second degree murder.” That section contains the definition of second degree murder: “Whoever with malice aforethought, except as provided in sections 22-2401, 22-2402, kills another is guilty of murder in the second degree.” The division, relying on the “except” clause held that' if a crime were within D.C.Code § 22-2401 or § 22-2402 (which sections define first degree murder) it must therefore and necessarily be outside of the second degree definition (§ 22-2403).
We think that construction unsound. It is not compelled by logic. It is contrary to the history and purpose of the statutory provisions defining the crimes of first and second degree murder. These were enacted in substantially their present form in 1901.20 The use of different degrees of the statutory crime was made against the background of the *1226common law crime of murder21 which embraced any killing with malice aforethought.22 Congress, modifying the common law rule that all murders were punishable by death, singled out certain types of killings (first degree murder) as meriting the possibility of capital punishment. Second degree murder was defined as the residuum of the common law crime of murder, i. e. a killing with malice aforethought. This is a common statutory pattern.23
The purpose and effect of the dichotomy,24 and of the “except” clause in our Code, was to say this: All homicides with malice are murder under the statute, as at common law; they are punishable by the maximum of life imprisonment set forth for murder in the second degree, except that those particularly heinous murders that are listed in the first degree section are punishable capitally.
The “except” clause of § 2403, inserted to permit certain heinous, murders to be punished more severely, did not result in a definition that persons committing such heinous murders are not guilty of second degree murder. Certainly it could not be seriously asserted that a person indicted solely for second degree murder would have a valid defense if it should be established that the murder was premeditated.25 The second degree statute cannot be taken as defining the substantive offense of second degree murder so as to exclude therefrom all crimes that also come within the first degree murder statutes.
We conclude that the statutory definition of the crimes of first and second degree murder does not impel a requirement that they be charged in the alternative. Their substantive elements do not conflict. A jury verdict of guilty as to both permits no inference that the jurors have stumbled in fitting the instructions concerning the elements of each offense to the facts as they have been determined by them. Without such inconsistency or confusion, there is no need for an alternative charge such as *1227was envisioned by Naples II.26 Again we emphasize the obvious, that the fact that defendant may be found guilty of both crimes does not mean that he is subject to cumulative punishment.
II.
5. There is however another strand of legal theory which must be taken into account, the doctrine of lesser included offenses. When a greater and lesser offense are charged to the jury, the proper course is to tell the jury to consider first the greater offense, and to move on to consideration of the lesser offense only if they have some reasonable doubt as to guilt of the greater offense.27 A jury that finds guilt as to the greater offense does not enter a verdict concerning guilt of the lesser offense. The reason for this absence of *1228consideration is not any inconsistency between the offenses. It rather reflects the very “inclusion” that defines the lesser offense as one “included” in the greater. A lesser included offense is one which is necessarily established by proof of the greater offense,28 and which is properly submitted to the jury, should the prosecution’s proof fail to establish guilt of the greater offense charged, without necessity of multiple indictment.
6. The doctrine of lesser included offenses is not without difficulty in any area of the criminal law. Its application as to criminal homicides is particularly elusive. Second degree murder is clearly a lesser included offense for all purposes of first degree premeditated murder.29 The confusion arises when considering whether second degree murder is a lesser included offense when the indictment charges first degree felony-murder. That difficulty stems from the fact that the felony-murder doctrine, 22 D.C.Code § 2401, defines as first degree murder a killing committed in the course of certain felonies regardless of whether the actor had any intention to do physical harm, let alone kill.30 The second degree murder statute, however, requires that a killing be done with “malice aforethought.” If given its connotation in common speech the word “malice” would seem to imply that the actor must have an intention to kill, or at least a reckless indifference to whether he does harm. If this were the only legal meaning of “malice” then first degree felony-murder and second degree murder would be distinct offenses, with second degree requiring as a legal element the intentional desire to do harm which is irrelevant (although •possibly present in a given case) in felony-murder.
At common law, however, killings in the course of a felony were murders because they were considered killings done with “malice” on a theory of transferred intent. The evil or wicked state of mind that the common law deemed “malice” was supplied by the intent to commit the felony.' As Judge Stephen cautioned the jury in his famous charge in Rex v. Serné.31 “The words malice aforethought are technical. You must not, therefore, construe them or suppose that they can be construed by ordinary rule of language.” Malice had a special meaning, and it embraced any killing, accidental or not, perpetrated in the *1229course of a felony — at least where the felony is itself dangerous to life.32
We need not rule here on the present applicability in the District of this common law doctrine of malice, although some of our cases,33 including dictum in a recent one 34, imply that the doctrine is still in effect. What is clear from our cases is that the jury may be instructed on second degree murder as a “lesser included offense” even though the indictment is solely for felony-murder.35
The point that second degree murder is a lesser included offense of first degree felony-murder is not negatived by the fact that in some eases a charge of second degree murder may not properly be demanded on the facts. That charge is appropriate only when on the facts of the case the jury may consistently find the defendant both innocent of felony-murder and guilty of second degree murder.36 This is merely application of the general federal rule that lesser included offenses may be charged only when the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense.37 The jury is not given carte blanche to find the defendant guilty of only the lesser offense when such guilt necessarily establishes guilt of the greater offense. But this rule for delineating the jury’s province does not affect the definition of what is a lesser included offense.
Taken by itself an indictment charging murder committed in the course of a felony might be thought inadequate to serve as notice that defendant might have to defend against a charge of murder that was intentional (but not premeditated). But an indictment for murder must be read in the light of the history of the crime. Counsel retained or assigned to defend a man accused of felony-murder are not misled. They are aware that the facts of the homicide are to be brought out, that a verdict of second degree murder is appropriate if there is proof from which the jury might reasonably find that the defendant did not commit one of the enumerated felonies but was guilty of an intentional killing on impulse, and that on this state of proof a charge of second degree murder as a lesser included offense may be requested by prosecution or defense. In short, as Judge Edgerton put it, the felony-murder “indictment and our decisions fully apprised *1230the defendant of what he must be prepared to meet” on the issue of second degree murder.38
7. The jury may consider the issue of second degree murder on an indictment of first degree felony-murder only if it finds some defect with the proof as to felony-murder.39
In general the chargeability of lesser included offenses rests on a principle of mutuality, that if proper, a charge may be demanded by either the prosecution or defense.40 We see no reason why the prosecution should have an option unavailable to defendant, of being able to insist that the jury render a verdict on the lessor offense notwithstanding a verdict of guilty of the greater offense, and should be able to realize on that option by the simple technique of filing an indictment in two counts rather than one.41 While the prosecutor may properly file in two counts of first degree murder, once the charge of premeditated murder is struck as supported by insufficient evidence, and that count is reduced to second degree murder, the defendant is entitled, on motion, to have the entire count struck, and to have the issue of guilty as to second degree murder submitted only as a lesser included offense, and only in the event of reasonable doubt of guilt of the greater offense.
If the defendant exercises his right to request that second degree murder be presented only as a lesser included offense, then as with Naples II, the jury will only render one verdict. That the defendant has a right on request to this sort of ordered presentation is, however, far different from Naples II. The jury is not to be told the crimes are alternatives. It is not to be told to acquit of second degree murder if it convicts of first degree. On the contrary, it does not even consider the issue of second degree murder unless it acquits as to first degree.
8. In this case the trial judge charged the jury with respect to both felony-murder and second degree murder. He did not instruct the jury to consider the question of second degree murder only if they determined that the Government had not met its burden as to some element of the first degree murder count. No request, motion or objection was made by appellant. In our view appellant cannot obtain reversal on the ground that there was “plain error affecting substantial rights.” 42
Our reasons for holding that there is no basis for reversal is that, in many instances, it makes sense to permit a verdict of second degree murder to be entered by a jury that also enters a verdict of felony-murder. It makes sense in terms of the strong policies favoring prosecutorial joinder of all possible theories of the crime in one trial in the absence of prejudice43 and the principle of sound judicial administration that retrials are to be avoided wherever possible.
*1231It also makes sense from the defendant’s point of view, since the defendant may reasonably desire to get the matter decided once and for all, a desire that may possibly have dimension as a constitutional right to resist the discharge of the jury until it has determined guilt of all offenses possible under the indictment.44 Specifically, suppose a case like appellant’s, of a defendant charged with rape, felony-murder and second degree murder. Suppose further that the defense is that the accused was merely rough-housing, had no intention whatever to sexually molest, and the blow that killed was an accident. The evidence is weak on the issue of rape, and stronger on the issue that the blow was struck with malice. If the only verdict is of felony-murder, a reversal because of insufficiency of evidence of rape confronts defendant with another trial for second degree murder45 with all the anxiety that entails. Also at the second trial the prosecution, now aware of the defendant’s evidence — which had to be introduced in view of the possibility that the jury might come to consider the second degree charge — may avoid troublesome spots that emerged in the first trial.46
In view of the foregoing, we think it fair to require that a request for striking the second degree count be made by a defendant who desires submission of that crime solely as a lesser included offense. In the absence of such defense request, the verdict of second degree murder in addition to first degree murder is akin to a special finding,47 sought by the prosecution and acquiesced in by the defense, as to the state of mind concerning the homicide apart from the intent as to the felony.48 The requirement of a defense motion also obviates any risk that a trial court’s sua, sponte dismissal might be misunderstood and thereafter lead to contentions of double jeopardy, or questions as to the appropriateness of subsequently charging second degree murder as a lesser offense.
9. Our conclusion that the defendant is required to make the motion that *1232second degree murder be presented only as a lesser included offense rests on our view that the lack of such restriction does not tend to confuse the jury, and our inability to find any reasonable basis for concluding that, either in the case at bar or others that come to our mind, the jury has been or may be confused as to its duties in determining what showing is requisite to establish a case of first degree murder.
Appellant’s argument, if we understand it correctly, is ultimately cast in terms of jury room mystique: namely, that when all is said and done, one can never tell what would have gone on in the jury room had the charge been given.
We reject defendant’s approach. We might reach a different result if we started from the premise that the jury has an unrestricted function in determining whether its verdict should reflect a conclusion of guilt as to the lesser or greater offense. But the law defines the jury’s duty otherwise. It must first consider the highest crime charged by the government in its indictment, and consider whether the defendant is guilty on that charge. If it is satisfied beyond a reasonable doubt that defendant is guilty of that greater offense, it is the jury’s duty to bring in a verdict that says so. Only if the jury has a reasonable doubt as to guilt of the higher offense, may a jury performing its duty acquit of that charge, and only then may it turn to consideration of whether defendant is guilty of the lesser offense.
There are occasions when a court accepts a jury verdict that cannot be defended in terms of rationality and consistency, occasions that reflect the jury’s historic power.49 But this does not mean that a defendant has been legally prejudiced merely because the terms of reference to the jury do not cater to the possibility that it may act irrationally or in blatant disregard of the law.
Multiple convictions cannot be said to constitute cause for reversal unless either the crimes are truly inconsistent or the circumstances are such as to make it reasonable to conclude that the jury was unable to keep the various matters separate or may have been confused as to what constituted the particular offenses. Without such a showing there is no reasonable possibility that the defendant was prejudiced. Prejudice is not shown by invoking the speculative possibility that a jury would have reached a different verdict by acting irrationally, or by invoking a vague and irrational possibility that somehow the whole thing might have gone differently had only the words been changed a bit.
The fact that the jury “might have done it differently” was rejected as a basis for finding prejudicial error in the Hirabayashi line of cases.50 This principle is fully applicable in the area of lesser included offenses where the doctrines have been shaped from the start so as to exclude claims based on the hope of irrational or inconsistent verdicts.51
In appellant’s case it is not reasonable to infer that the failure to follow a lesser included offense approach may have confused the jury on the issue of guilt of felony-murder. We cannot say that the jury’s concurrent consideration of both felony-murder and second degree mur*1233der reflects a plain violation, of substantial rights.52
Unless and until the question is reconsidered by Congress, perhaps in the light of recommendations of the new Commission on Revision of the Criminal Laws of the District of Columbia, the trial judge has no discretion to give less than the life sentence for felony-murder.53 That judgment is accordingly Affirmed.
. See, ante, p. 1204.
. See, e.g., charge quoted below in note 7.
. In capital cases, the court is particularly likely to find “plain error” when the error is substantial enough to constitute prejudicial error. See, e. g., Tatum v. United States, 88 U.S.App.D.C. 380, 190 F.2d 612 (1951), and cases cited at 88 U.S.App.D.C. 388 n. 3, 190 F.2d 614 n. 3.
. 22-2401. Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in section 22-401 or 22-402, rape, mayhem, robbery, or kidnapping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.
22-2402. Whoever maliciously places an obstruction upon a railroad or street railroad, or displaces or injures anything appertaining thereto, or does any other act with intent to endanger the passage of any locomotive or car, and thereby occasions the death of another, is guilty of murder in the first degree.
22-2403. Whoever with malice aforethought, except as provided in sections 22-2401, 22-2402, kills another, is guilty of murder in the second degree.
. 120 U.S.App.D.C. at 132, 344 F.2d at 517.
. 120 U.S.App.D.C. at 131, 344 F.2d at 516.
. See Instruction #87, Criminal Jury Instructions prepared by the Junior Bar Section of the District of Columbia Bar Association (1906) : “You may not find the defendant guilty of both murder in the first degree and murder in the second degree. If you find the defendant guilty of murder in the first degree, you must find him not guilty of murder in the second degree. If you find the defendant guilty of murder in the second degree, you must find him not guilty of murder in the first degree.”
. See, e.g., Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961) ; Dozier v. United States, 127 U.S.App.D.C. 266, 382 F.2d 482 (1967); Thompson v. United States, 97 U.S.App.D.C. 116, 228 F.2d 463 (1955). Compare, where verdicts on two counts inconsistent as a matter of fact, Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932) (Holmes, J.); Bickel, Judge and Jury — Inconsistent Verdicts in the Federal Courts, 63 Harv.L.Rev. 649 (1950).
' 9. E.g., Commonwealth v. Haskins, 128 Mass. 60 (1880); Perry v. Martin, 73 N.J.D. 310, 62 A. 1001 (1906). At common law the rule is not merely a prohibition of conviction of both offenses. If the accused were guilty of the theft he could not be convicted of the receiving, regardless of whether the indictment contained a larceny count. E.g., Reg. v. Perkins, 5 Cox O.C. 554, 169 Eng.Reprints 582 (1852) ; Rex. v. Owen, 168 Eng.Reprints 1200 (1825). The difficult situation is where the “receiver” is also an accessory before the fact, and therefore liable as a principal. On these facts the cases have split, some holding that the defendant may be convicted only of larceny, Reg. v. Perkins, supra, others that he may be convicted of both offenses, Weisberg v. United States, 49 App.D.O. 28, 258 F. 284 (1919), and still others apparently holding that he may be convicted of either offense but the jury must choose between them, Milanovicli v. United States, supra note 8.
. Milanovicli v. United States, supra note 8.
- 22 D.C.Code § 3501.
. 22 D.C.Code § 3501(d): “The provisions of this section shall not apply to the offenses covered by section 22-2801.”
. Dozier v. United States, supra note 8; Whittaker v. United States, 108 U.S.App.D.C. 268, 281 F.2d 631 (1960); Younger v. United States, 105 U.S.App.D.C. 51, 263 F.2d 735, cert. denied, 360 U.S. 905, 79 S.Ct. 1289, 3 L.Ed.2d 1257 (1959); Thompson v. United States, supra note 8. But compare the disposition of Dozier v. United States, supra, with that of Milanovich v. United States, supra.
. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
. The former rule of Blockburger v. United States, supra note 14, that separate offenses could be punishable by consecutive sentences, is clearly too broad in view of subsequent Supreme Court decisions, e.g.. Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). This court’s most recent formulation of the considerations to control whether sentences may be cumulated does not rely merely on the evidentiary requirements of proving each offense. Irby v. United States, 129 U.S.App.D.C. 17, 390 F.2d 432 (1967) (en banc).
Multiple violations also raise substantial problems in the context of double jeopardy, i.e., when acquittal on conviction of one offense will bar prosecution for another “offense” that is part of the same transaction. See note 26 infra.
. The punishment for first degree murder must be either death or life imprisonment. 22 D.C.Code § 2404. Prior to 1962 amendment, Act of March 22, 1962, 76 Stat. 40, the death sentence was mandatory. Johnson v. United States, 225 U.S. 405, 32 S.Ct. 748, 56 L.Ed. 1142 (1912) (jury lias no power to recommend life imprisonment).
. Evans v. United States, 98 U.S.App.D.C. 122, 123, 232 F.2d 379, 380 (1956), citing Ekberg v. United States, 167 F.2d 380 (1st Cir. 1926); Davenport v. United States, 122 U.S.App.D.C. 344, 353 F.2d 882 (1965).
Decisions by state courts likewise hold that there is no prejudicial error in simultaneous convictions of two offenses even though they may not be punished by consecutive sentences, or are in fact merely different degrees of the same offense, see, e. g., Wildman v. State, 42 Ala.App. 357, 165 So.2d 396 (1963) ; State v. Boodry, 96 Ariz. 259, 394 P.2d 196, 379 U.S. 949, 85 S.Ct. 44S, 13 L.Ed.2d 546 (1964); People v. McFarland, 58 Cal.2d 748, 26 Cal.Rptr. 473, 376 P.2d 449 (1962); State v. Riley, 28 N.J. 188, 145 A.2d 601 (1958) ; State v. Quintana, 69 N.M. 51, 364 P.2d 120 (1961); People ex rel. Maurer v. Jackson, 2 N.Y.2d 259, 159 N.Y.S.2d 203, 140 N.E.2d 282 (1957); Commonwealth ex rel. Shaddock v. Ashe, 340 Pa. 286, 17 A.2d 190 (1941).
. 120 U.S.App.D.C. at 132, 344 F.2d at 517.
. Suppose the jury were required to register an acquittal of premeditated murder, because they convicted defendant of first degree felony-murder. Suppose the felony-murder conviction is later reversed for insufficient evidence as to the felony. Defendant would argue that he could not be retried for premeditated murder because the jury convened to consider that charge, to whose verdict he was entitled, had brought in a verdict of acquittal. Cf. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).
Similar problems are raised if, as the dissent contends, first and second degree murder are distinct and different offenses, and a Naples II charge, see note 7 swpra, has been given. A defendant convicted of first degree felony-murder, and therefore automatically acquitted of second degree murder, might appeal on the grounds that the evidence will not support the felony conviction, e.g., that he was too intoxicated to have the specific intent to rob. If he prevailed in the appellate court, he could, on retrial contend that the jury verdict of acquittal of second degree murder bars any second trial for that crime, even though intoxication does not negative the “malice” required for that crime.
The dissent suggests that the jury can be told to withhold decision and “abstain” on the second degree count if it convicts on the felony murder charge. If, liowever, the crimes are “inconsistent” as stated in Naples and reiterated in the dissent, it is unlikely that this device would avoid the double jeopardy problem in view of the overtones of the Downum and Green decisions. Moreover, the approach of the dissent would not enable defendant to gain the protection of the double jeopardy clause, available under the court’s decision, by obtaining a verdict from a jury making a rational judgment applying the law of second degree murder to the evidence produced at this trial, possibly at great expense, possibly from exculpatory witnesses who will never be available again. (See point 8, below, and particularly paragraph containing footnotes 44-46.)
. Ch. 854, §§ 798, 799, 800, 31 Stat. 1321 (1901). The first degree statute was amended by Act of June 12, 1940, 54 Stat. 347, to make a non-purposeful killing in the course of certain felonies first degree murder. Prior to that the felony-murder rule extended only to purposeful killings in the course of a felony. See Jordon v. United States, 66 App.D.C. 309, 87 F.2d 64 (1936); Marcus v. United States, 66 App.D.C. 298, 86 F.2d 854 (1936); Letter of Attorney General Cummings, December 30, 1938, to Senate Committee on the Judiciary, printed as an appendix to Coleman v. United States, 111 U.S.App.D.C. 210, 220-221, 295 F.2d 555, 565-566 (1961) (en banc), cert. denied, 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed. 2d 613 (1962).
. Prior to the adoption of the District of Columbia Code in 1901, the common law of crimes was operative in the District. The Act of February 27, 1801, 2 Stat. 103, made the laws of Virginia and Maryland operative in the parts of the District they had ceded. The Act of March 2, 1831, 4 Stat. 448, provided penalties for various offenses, but “all definitions and descriptions of crimes” were to remain as theretofore. See Hill v. United States, 22 App.D.C. 395 (1903).
. “Murder is, therefore, now thus defined, or rather described, by Sir Edward Coke: ‘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’.” 4 Blackstone, Commentaries § 195. For the historical development of this crime, see generally Perkins, A Re-Examination of Malice Aforethought, 43 Yale L.J. 537, 539-44 (1934); Note, Felony Murder as a First Degree Offense: An Anachronism Retained, 66 Yale L.J. 427, 428-31 (1957).
. See, e.g., 18 U.S.C. § 1111; and generally Wechsler & Michael, A Rationale of the Law of Homicide I, 37 Colum.L.Rev. 701, 705 n. 16 (1937).
. For discussion of the history of the degree device, see Keedy, History of the Pennsylvania Statute Creating Degrees of Murder, 97 U.Pa.L.Rev. 759 (1949); Wechsler & Michael, supra, note 23 at 703-07. For recommendation that it be abandoned now that capital punishment is no longer mandatory for any type of murder, see Model Penal Code § 201.6, comment at 70 (Tent.Draft No. 9, 1959).
. Where on the facts of the case the defendant as a matter of law must be guilty of first degree murder if he killed, he may insist that the verdict be guilty of first degree murder or not guilty. Green v. United States, 95 U.S.App.D.C. 45, 218 F.2d 856 (1955), but this rule finds its justification in a fear of a compromise verdict of guilty of second degree murder, even though the jury was not unanimously convinced beyond a reasonable doubt that defendant committed the homicide. Where only second degree murder is charged, defendant cannot be heard to insist on a trial for a higher offense if any. Compare United States v. Fleming, 215 A.2d 839 (D.C.Ct.App.1966) (fact that offense completed no defense to prosecution for attempt).
. Appellant’s memorandum on reargument leans heavily on Green v. United States, 355 U.S. 184, 194 n. 14, 78 S.Ct. 221, 226, 2 L.Ed.2d 199 (1957), where the Court wrote: “It is immaterial whether second degree murder is a lesser offense included in a charge of felony murder or not. The vital thing is that it is a distinct and different offense.” In Green, however, the issue did not involve the permissibility of multiple convictions or consecutive sentences. The question was whether retrial for first degree murder after a successful appeal of a jury verdict of guilty of second degree rather than first degree murder violates the double jeopardy clause. The notion of “separate and distinct” offenses, determined by their evidentiary requirements, has been the guiding principle for determining the scope of double jeopardy protection. It stems from The King v. Vandercomb & Abbott, 2 Leach 707, 168 Eng.Rep. 455 (1796), where the “same evidence” test determined whether a plea of autrefois acquit would lie. See generally Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L. Rev. 1 (1960); Kircheimer, The Act, the Offense, and Double Jeopardy, 58 Yale L.J. 513 (1949); Comment, Twice in Jeopardy, 75 Yale L.J. 262 (1965); Comment, Statutory Implementation of Double Jeopardy Clauses: New Life for a Moribund Constitutional Guarantee, 65 Yale L.J. 339 (1956). We need not consider whether the evidentiary rule, which has been reevaluated to the extent that it permits consecutive punishments, may, also be in process of reevaluation to the extent that it limits the plea of double jeopardy, see Abbate v. United States, 359 U.S. 187, 196, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) (separate opinion of Brennan, J.); United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); compare Robison v. United States, 390 U.S. 198, 88 S.Ct. 903, 19 L.Ed.2d 1040 (1968).
Where the identity of offenses for purposes of double jeopardy is at issue, first degree murder is distinct from second degree murder because it requires an extra element of proof, namely that the killing was premeditated or that it was perpetrated in the course of an enumerated felony. Therefore, a jury’s failure to convict of first degree murder is a refusal to find that extra element. It creates a double jeopardy bar either on a theory of implied acquittal of the greater offense or because the jury has been dismissed, without the defendant’s permission, without rendering a verdict as to the greater offense. See Downum v. United States, supra note 19. On this latter ground, where the two offenses are proved by the same evidence but carry different penalties, see Cichos v. State of Indiana, 385 U.S. 76, 87 S.Ct. 271, 17 L.Ed.2d 175 (1966) (writ of certiorari dismissed as improvidently granted).
. United States v. White, 225 F.Supp. 514 (D.D.C.1963); W. Mathes & E. Devitt, Federal Jury Practice and Instructions, § 15.10 at 159 (1965). It was in light of this principle that the writer of this opinion stated, in Austin v. United States, that: “Since a verdict of murder in the second degree negatives a finding of premeditation and deliberation, the jury could not be permitted in the same verdict to recite that the murder was in cold blood.” (127 U.S.App.D.C. 180, 193 n. 27, 382 F.2d 129, at 142 (1967)) Given that the jury has been told to first decide guilt as to first degree murder, its decision to pass on to second degree murder and convict of that reflects a determination that some element of first degree murder is lacking (or else misunderstanding of the charge).
The Austin footnote was in error in citing Naples II, or in implying that Naples II could be defended on that basis, as that case did not involve second degree murder charged as a lesser offense. In acknowledging that error, it may be appropriate to invoke the wisdom of Jackson, J., concurring in McGrath v. Kristensen, 340 U.S. 162, 176, 177, 71 S.Ct. 224, 95 L.Ed. 173 (1950).
. This is the customary definition of an included offense, although it is not strictly accurate when crimes are differentiated on the basis of the kind of intention the actor must have. For example, proof of an intentional killing does not, in a sense, establish that the actor was reckless. There is more precise analysis in the Model Penal Code § 1.07 (4) which defines an offense as included when:
(a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) it consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or
(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
. Thus an appellate court can order entry of convictions as to second degree murder when the evidence is insufficient only as to premeditation. Austin v. United States, 127 U.S.App.D.C. 180, 382 F.2d 129 (1967).
. Because the felony-murder rule does disregard the actor’s intention to do bodily harm, it has had “an extensive history of thoughtful condemnation.” 65 Colum. L.Rev. 1496 (1965). See, e.g., First Report of His Majesty’s Commissioners on Criminal Law 29 (1834) (“totally incongruous with the general principles of our jurisprudence”); 3 J. Stephen, History of the Criminal Law of England 75 (1883) (“a monstrous doctrine”); Model Penal Code § 201.2, comment 4 at 37 (Tent. Draft No. 9, 1959) (principled argument in its defense is hard to find). See generally, Note, Felony Murder as a First Degree Offense: An Anachronism Retained, supra note 22.
. 16 Cox C.C. 311 (1887).
. Coke, Institutes Parts III & V 56 (1680) hypothesized that a death caused by a stray arrow shot at a tame fowl would be murder, since hunting tame fowl was illegal. See also Stephen, Digest of the Criminal Law, art. 223 (1887). But in his charge in Rex v. Serné, supra, Stephen thought the felony had to be one itself dangerous to life.
. Particularly Lee v. United States, 72 App.D.C. 147, 112 F.2d 46 (1940). See also, Marcus v. United States, supra note 20, 66 App.D.C. at 305, 86 F.2d at 861; Sabens v. United States, 40 App.D.C. 440, 442 (1913); Norman v. United States, 20 App.D.C. 494, 499 (1902); Jackson v. United States, 114 U.S.App.D.C. 181, 313 F.2d 572 (1962) (by implication).
. Hansborough v. United States, 113 U.S.App.D.C. 392, 394, 308 F.2d 645, 647 (1962).
. See e.g., Jackson v. United States, supra note 33; Kitchen v. United States, 95 U.S.App.D.C. 277, 278, 221 F.2d 832, 833 (1955), cert. denied, 357 U.S. 928, 78 S.Ct. 1378, 2 L.Ed.2d 1374 (1958); Goodall v. United States, 86 U.S.App.D.C. 148, 180 F.2d 397, 17 A.L.R.2d 1070, cert. denied, 339 U.S. 987, 70 S.Ct. 1009, 94 L.Ed. 1389 (1950).
. See, e. g., Coleman v. United States, supra note 20; Green v. United States, supra 95 U.S.App.D.C. at 48, 218 F.2d at 859; Goodall v. United States, supra 86 U.S.App.D.C. at 151, 180 F.2d at 400.
. See Sansone v. United States, 380 U.S. 343, 349-350, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896); Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895). See also Model Penal Code § 1.07(5): “The Court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.”
. Jackson v. United States, supra, 114 U.S.App.D.C. at 183, 313 F.2d at 574 (1962).
. See note 27 supra.
. Kelly v. United States, 125 U.S.App.D.C. 205, 370 F.2d 227 (1966), cert. denied, 388 U.S. 913, 87 S.Ct. 2127, 18 L.Ed.2d 1355 (1967). The doctrine of lesser included offenses originated as a rule for the benefit of the prosecution, to permit a (diminished) charge when there was failure in prosecution proof of an element of the crime charged in the indictment. It was extended to permit the accused to request a lesser included offense instruction.
. Certainly it would be inappropriate to submit a count of second degree murder in a case where that crime could not be charged as a lesser included offense.
. We thereby overrule Naples II insofar as it holds the mere conviction of both offenses necessarily establishes prejudicial error.
. Fed.R.Crim.P. 8(a) permits joinder wherever the offenses are “based on the same act or transaction.” The Model Penal Code § 1.07(2) and § 1.09(1) would require joinder by imposing, with some limitations, a bar to a subsequent prosecution. Compare Robison v. United States, 390 U.S. 198, 88 S.Ct. 903, 19 L.*1231Ed.2d 1040 (1968); Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958); Ciucci v. State of Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed. 2d 983 (1958); see also Abbate v. United States, supra note 26.
. Downum v. United States, supra note 26, but cf. United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); Cichos v. State of Indiana, supra note 26.
. Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). If defendant can be retried for the same offense after reversal of conviction, it is clear that he can be retried as to one whose elements are contained therein. A difficult double jeopardy question would arise if a Naples II charge were given and the jury acquitted as to second degree murder while convicting of first degree murder, see note 19 supra.
. See Carsey v. United States, 129 U.S.App.D.C. 205, 392 F.2d 810 (1967).
. We note, in passing, that while the Federal Rules of Criminal Procedure do not specifically provide for special findings of fact, Rule 57(b) might serve as authorization. See, e.g., Holmes v. United States, 124 U.S.App.D.C. 152, 363 F.2d 281 (1966). Special jury verdicts in criminal cases have deep common law roots. See for example Judge Palmieri’s careful opinion in United States v. Ogull, 149 F.Supp. 272 (S.D.N.Y.1957), aff’d sub nom. United States v. Gernie, 252 F.2d 664 (2d Cir.), cert. denied, 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed.2d 1073 (1958). The Supreme Court has approved their use at least by strong implication, e.g., Kawakita v. United States, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249 (1952). Moreover, as such a finding is possible if the case is tried without jury, F.R.Crim.P. 23(c), a comparable procedure might be required under United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).
. We need not now consider whether and to what extent the kind of special finding of second degree murder verdict under discussion requires modification of the conventional common law instruction that “malice” exists if the defendant had a wicked state of mind. Defendant may contend that such a malice instruction perpetuates the prejudice from an error appearing in connection with definition of the other felony.
. United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943); Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932) (Holmes, J.); Jackson v. United States, supra note 33; compare United States v. Maybury, 274 F.2d 899 (2d Cir. 1960) ; see generally, Bickel, Judge and Jury — Inconsistent Verdicts in the Federal Courts, 63 Harv.L.Rev. 649 (1950).
. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ot. 1375, 87 L.Ed. 1774 (1943), holding that a conviction may stand even though there is error as to some other count on which sentence has been concurrently imposed. Yet one can never really tell what the jury would have done in fact had it not been for the presence of an error, however analytically separate its legal setting.
. See cases cited supra note 37.
. There is one action, of a technical nature, to which defendant is entitled on this appeal, even though he did not raise tlie point in the District Oourt. He is entitled to ask that the judgment on the lesser sentence be vacated — which is of course not the same as a verdict of acquittal. This course is followed by some state courts, see e.g., Wildman v. State, supra note 17; People v. Quinn, 61 Cal. 2d 551, 39 CaLRptr. 393, 393 P.2d 705 (1964); State v. Quintana, supra note 17. Others hold that the lesser conviction should be vacated (without, however, affecting the conviction or judgment of the greater offense). State v. Riley, supra note 17. The New York courts, however, regard the concurrent sentence as not being punishment at all, People ex rel. Maurer v. Jackson, supra note 17; People v. Cheeks, 16 A.D.2d 742, 227 N.Y.S.2d 105 (4th Dept. 1962), aff’d, 13 N.Y.2d 703, 241 N.Y.S.2d 177, 191 N.E.2d 677.
While error on a count as to which a concurrent sentence has been imposed is not grounds for reversal, Hirabayashi v. United States, supra note 50, there are federal cases directing that the concurrent sentence should be vacated where imposed on multiple convictions of the same or included offenses, on a theory that parole or pardon may conceivably be affected thereby. See, e.g., Audett v. United States, 265 F.2d 837 (9th Cir. 1959); Dailey v. United States, 259 F.2d 433 (7th Cir. 1958), cert. denied, 359 U.S. 937, 79 S.Ct. 653, 3 L.Ed.2d 638 (1959); United States v. Machibroda, 338 F.2d 947 (6th Cir. 1964) (dictum). Although we think it very unlikely that parole or pardon for murder will be adversely affected by a concurrent sentence for manslaughter, we see no particular reason why that concurrent sentence should be left standing and we direct that it be vacated.
. Under the present statute neither the sentencing court nor the jury can provide a less severe punishment tailored to the individuated circumstances of the crime, even where the death is accidental. In appellant’s case the judge held there was no evidence of premeditated murder and on Count II the jury did not convict of second degree murder but only of manslaughter. The judge could not consider the possibility that appellee’s offense reflected not an established rapist criminality but a transient passion; that his lady friend’s rejection earlier in the evening may have produced what was an aberration rather than a characteristic response. The problem is different from that presented where the felony preceding the death is likely to be premeditated; the warning that even accidental homicides will be first degree murder may deter some robbers and housebreakers from the use of guns.
The Model Penal Code recommends that the fact that a homicide occurred in the course of one of a list of felonies be taken into account as an aggravating factor in sentencing, but be subject to offset by mitigating circumstances.