concurring in part, dissenting in part):
I concur in the affirmance of appellant’s conviction of robbery. As to his *674conviction of felony-murder based on the killing by appellant’s co-felon of the victim of the robbery, during the course of its commission, I would reverse. The instruction to the jury on that phase of the case, insofar as the instruction applied to appellant who did not himself kill the victim, did not require the jury to find, as I believe to be essential to his conviction of first degree felony-murder, that the killing was committed in furtherance of a design or purpose which appellant held in common with the one who actually killed the victim.
22 D.C. Code § 2401 provides that “[w]hoever * * * in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary * * * kills another * * * is guilty of murder in the first degree.” 1 Under this provision only the person who actually kills another is guilty of first degree murder. To hold a co-felon such as appellant guilty of first degree murder more must be shown, namely, an aiding and abetting2 in the commission of the crime of murder defined by Section 2401. That section does not provide that one who aids and abets the commission of a robbery during which another commits a homicide is sufficient for conviction of the former of first degree murder.
The instruction to the jury, nevertheless, was as follows:
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.
If 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.
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:
* * •» -x- -x- *
(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.
Appellant did not himself kill the deceased cab driver, and indeed he seemed to repudiate the shooting. Possibly the homicide was the independent act of appellant’s co-felon, committed to the dismay of appellant. This is not to say that appellant could not be found guilty of murder. The problem is that his guilt of that offense was not submitted to the jury in terms which would allow, but not require, the jury to find that he aided and abetted commission of the homicide. The proper test in such a case in my opinion should be, not whether the homicide was within the scope of the robbery, but whether it was in furtherance of a common design or purpose.3 See People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130 (1965) (In Bank); Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958).
For the foregoing reason I would reverse appellant’s conviction of first de*675gree murder and grant him a new trial of that charge with an instruction com-formably with the views above expressed.
I concur in affirmance of the conviction of robbery.
. Proof of deliberate and premeditated malice is not essential in such circumstances to a conviction of first degree murder.
. 22 D.C.Code § 105.
. This is not to say that the jury must find that appellant and Whiteside planned specifically to use the force of shooting the victim, but only that as a minimum they planned to use such force if necessary to consummate the robbery. This concert between co-felons, of course, could bo shown by circumstantial evidence. The point, however, is that the determination should be left to the jury under instructions properly framing the issue.