dissenting.
Although the majority recognized that the Commonwealth’s Attorney agreed at trial of this case that the Commonwealth would “give up any claim ... to concert of action,” the majority holds that the Commonwealth was not precluded from prosecuting Stanley Justin Berkeley for felony-murder under Code § 18.2-32. I disagree with the majority’s holding.
Because of its stipulation, the Commonwealth was required to prove that Berkeley actually committed the murder, i.e., was the principal in the first degree. See Johnson v. Commonwealth, 220 Va. 146, 150, 255 S.E.2d 525, 527 (1979) (“only the person who is the immediate perpetrator may be a principal in the first degree”). The principle underlying a felon’s liability as a principal in the second degree under the felony-murder doctrine is based upon a concert of action theory. Because the record is devoid of proof beyond a reasonable doubt that Berkeley killed the victim, I would hold that the Commonwealth failed to prove the stipulated theory upon which it prosecuted Berkeley, and I would reverse his conviction.
The grand jury returned a capital murder indictment charging that Berkeley “willfully, deliberately and with premeditation *288kill[ed] and murder [ed] Melissa Harrington during the commission of, or subsequent to, rape in violation of [Code ]§ 18.2-31.” At the conclusion of the Commonwealth’s evidence at trial, the indictment was amended to read that Berkeley “maliciously kill [ed] and murder [ed] Melissa Harrington in the commission of rape or abduction.” In amending the indictment to charge felony-murder, the Commonwealth’s Attorney stipulated that he would not assert that there was “concert of action” between Berkeley and Andrew Chabrol, the co-defendant.
The jury was not instructed that it could find Berkeley guilty of murder if the victim died during the occurrence of the abduction. Nothing in the record explains that omission. The jury was instructed that it could find Berkeley guilty of murder only if the victim died during the occurrence of the rape. No evidence proved, however, that Berkeley was the person who actually killed the victim. Indeed, Andrew Chabrol pleaded guilty to capital murder of the victim. See Chabrol v. Commonwealth, 245 Va. 327, 427 S.E.2d 374 (1993).
A defendant may be “a principal in the second degree [to a felony-murder] and, as such, criminally responsible for the consequences of his conduct ‘as if a principal in the first degree.’ ” Heacock v. Commonwealth, 228 Va. 397, 403, 323 S.E.2d 90, 94 (1984). A person’s culpability as a principal in the second degree arises from the concept that “[d]ue to the concert of action, [the principal in the second degree] is deemed to have shared [the principal in the first degree’s] intent.” Riddick v. Commonwealth, 226 Va. 244, 248, 308 S.E.2d 117, 119 (1983). At best, the evidence proved only that Berkeley was a principal in the second degree to the act of felony-murder perpetrated by Chabrol.
On this appeal, the Commonwealth argued in its brief that “[concert of action] has nothing to do with felony-murder.” The Commonwealth also argued that “under the felony-murder theory, . . . [proof of] ‘concert of action’ and ‘shared intent’ [is] not required.” The Commonwealth further asserted that concert of action is only relevant if the Commonwealth had been attempting to convict Berkeley of murder as a principal in the second degree. Thus, the Commonwealth asserts that “[t]his appeal, then, reduces itself to the self-answering question of whether the evidence was sufficient to prove that the homicide was within the res gestae of the predicate felonies that Berkeley clearly committed.”
*289This argument ignores the absence of proof that Berkeley acted as a principal in the first degree to the murder. The Supreme Court of Virginia has rejected the “proximate cause theory of liability” as the basis for criminal responsibility in felony murder cases. See Wooden v. Commonwealth, 222 Va. 758, 763-65, 284 S.E.2d 811, 814-16 (1981). As it argued unsuccessfully in Wooden, the Commonwealth again argues in this Court a theory that would premise an aider and abettor’s liability in a felony-murder case upon proximate cause.
The majority opinion apparently adopts the Commonwealth’s arguments but also goes further and “hold[s] that any degree of causation is sufficient.” (emphasis added). That holding is in direct conflict with Wooden. See 222 Va. at 763-65, 284 S.E.2d at 814-16. Moreover, the majority invokes Berkeley’s participation in the abduction as a sufficient degree of causation to uphold this conviction. The record reflects, however, that the jury was instructed on felony-murder as follows:
The Court instructs the jury that the defendant is charged with the crime of first degree murder. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:
(1) That Melissa Harrington was killed;
(2) That the killing was malicious; and
(3) That the killing occurred in the commission of rape in which the defendant participated.
If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt each of the above elements of the offense as charged, then you shall find the defendant guilty ....
Thus, even though the jury was not instructed that abduction could be the predicate offense that would support a conviction of felony-murder, the majority finds that the “record contains evidence from which the fact finder could reasonably infer that the abduction continued until victim’s death, and thus, the homicide occurred as a part of the res gestae of the criminal venture.” This reasoning improperly premises Berkeley’s criminal liability upon a *290theory that was not submitted to the jury. Dunn v. United States, 442 U.S. 100, 106 (1979) (“To uphold a conviction on a charge that was [not] . . . presented to a jury at trial offends the most basic notions of due process”). “It is as much a violation of due process to send an accused to prison following a conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Cole v. Arkansas, 333 U.S. 196, 201 (1948).
Felony-murder is codified in Virginia under Code § 18.2-32 and retains the common law elements of murder.7 In Wooden, the Virginia Supreme Court defined felony-murder as follows:
Where a person maliciously engages in criminal activity, such as robbery, and homicide of the victim results, the malice inherent in the robbery provides the malice prerequisite to a finding that the homicide was murder. And, all of the criminal participants in the initial felony may be found guilty of the felony-murder of the victim so long as the homicide was within the res gestae of the initial felony.
222 Va. at 762, 284 S.E.2d at 814.
Felony-murder was initially developed as a means to elevate a homicide committed during the course of a felony to murder. King v. Commonwealth, 6 Va. App. 351, 354, 368 S.E.2d 704, 705-06 (1988). Murder is distinguished from other killings by the presence of malice aforethought. In order to find a felon guilty for a murder committed during a felony, it is necessary that this mens rea is present by the person who actually causes the death. See Wooden, 222 Va. at 765, 284 S.E.2d at 816. Malice is imputed to the felon who causes a death from his intent to commit the felony. Id. at 762, 284 S.E.2d at 814. If the felon charged with felony-murder is not the actual perpetrator of the homicide, malice is imputed from the perpetrator of the killing to the co-felon charged with felony-murder. See id.; Commonwealth ex rel. Smith v. Myers, 261 A.2d 550, 553-55 (Pa. 1970).
*291There are several different theories of felony-murder liability which state courts have adopted. See John S. Anooshian, Note, Should Courts Use Principles of Justification and Excuse to Impose Felony-Murder Liability? 19 Rutgers L.J. 451, 459-62 (1988). The majority viewpoint, which Virginia follows, is an agency theory. Under that theory, liability lies “only where the act of killing is ‘either actually or constructively committed’ by a felon ‘or by someone acting in concert with him or in furtherance of a common design or purpose.’ ” Anooshian, at 461-62 (citation omitted); Wooden, 222 Va. at 763-65, 284 S.E.2d at 815. See also Commonwealth v. Redline, 137 A.2d 472, 478-79 (Pa. 1958).
The facts of Wooden illustrate this idea. Wooden and three other persons joined to commit a robbery. Wooden’s co-felon shot the victim of the robbery. Before the victim died, the victim shot and killed Wooden’s co-felon. Wooden was convicted of two felony-murders. She appealed from the conviction of felony-murder that grew out of the death of her co-felon. 222 Va. at 760, 284 S.E.2d at 812-13. Citing Pennsylvania’s long history of case decisions on the felony-murder doctrine and relying upon the principles developed in those decisions, the Supreme Court of Virginia reversed Wooden’s conviction and held that a criminal participant in a felony cannot be convicted of felony-murder when a co-felon is killed by the victim of the initial felony. Id. at 765, 284 S.E.2d at 816. The Court reasoned that because no evidence proved that the victim killed the co-felon with malice, malice cannot be imputed to Wooden under the felony-murder rule.8 Id. at 762, 284 S.E.2d at 814.
For felony-murder prosecutions in states, such as Virginia, that follow the agency theory, liability turns upon the intent of the perpetrator of the killing. To uphold a conviction, “the killing must have been done by the defendant or an accomplice or confederate *292or one acting in furtherance of the felonious undertaking.” Haskell v. Commonwealth, 218 Va. 1033, 1042, 243 S.E.2d 477, 482 (1978) (citing Commonwealth ex rel. Smith v. Myers, 261 A.2d 550, 555 (Pa. 1970)). As a result, a felon can only be guilty of felony-murder in Virginia if a death results from the felon’s own act or from the act of a person acting in concert with the felon in connection with the underlying felony.
A contrary theory, which Virginia has rejected, is the view that a felon is guilty of any homicide resulting from the commission of a felony whenever the evidence proves that the felony is the proximate cause of the homicide. See Wooden, 222 Va. at 764, 284 S.E.2d at 815. In other words, in Virginia a felon may not be convicted of felony-murder if the actual killing was committed by the police or the victim or by some other person not acting in concert with the felons. Id.
In disregarding the principle that a principal in the second degree’s liability for felony-murder is based upon concert of action, the majority resurrects the proximate cause rationale. The majority believes that it is unnecessary to prove concert of action for a felony-murder conviction to stand. The majority’s disregard of Berkeley’s argument that concert of action is inherent in applying the doctrine of felony-murder to a principal in the second degree manifests an erroneous view that malice imputed to the felon charged with felony-murder need not flow through the killer but rather arises solely through the principle of proximate cause. In that way, a felon may always be guilty of the felony-murder of a killing done by anyone, as long as proximate cause is found. Wooden has addressed and rejected that theory.
The issue squarely presented in this case is whether concert of action is subsumed within the felony-murder doctrine when an aider and abetter is prosecuted. In Virginia, the standard jury instruction defining concert of action is as follows:
If there is concert of action with the resulting crime one of its incidental probable consequences, then whether such crime was originally contemplated or not, all who participate in any way in bringing it about are equally answerable and bound by the acts of every other person connected with the consummation of such resulting crime.
*293Rollston v. Commonwealth, 11 Va. App. 535, 543, 399 S.E.2d 823, 827 (1991).
Our cases also hold that transferred intent occurs “if an accused shoots at another intending to kill him, and a third person is killed because of the act, that same intent follows the bullet and is transferred to the killing of the third person, even if such death was accidental or unintentional.” Riddick v. Commonwealth, 226 Va. 244, 248, 308 S.E.2d 117, 119 (1983). Thus, if two people act in concert in the commission of a felony, and one felon shoots a person, that felon’s intent is transferred and shared with the other felon as a principal in the second degree. Id. See also Epps v. Commonwealth, 216 Va. 150, 156, 216 S.E.2d 64, 69 (1975). It follows, therefore, that a co-felon who is not the actual killer may be charged with felony-murder as a principal in the second degree under a concert of action theory. Indeed, this Court has specifically upheld the giving of a concert of action instruction in a felony-murder trial where the defendant was not the actual killer. See Rollston, 11 Va. App. at 543, 399 S.E.2d at 828. See also People v. Brown, 328 N.W.2d 380, 383 (Mich. Ct. App. 1982) (where there is evidence of concert of action, an aiding and abetting jury instruction is proper in a felony-murder case).
Code § 18.2-18 is explicit in stating that “[i]n the case of every felony, every principal in the second degree and every accessory before the fact may be indicted, tried, convicted and punished in all respects as if a principal in the first degree; . . . except in the case of a killing for hire.” In Heacock v. Commonwealth, 228 Va. 397, 403-04, 323 S.E.2d 90, 94 (1984), the Supreme Court affirmed Heacock’s conviction for felony-murder under Code § 18.2-33. The Court found immaterial Heacock’s contention that the evidence failed to show that he administered the fatal injection. The Court ruled that Heacock was a principal in the second degree because he was aiding and abetting in the preparation of the narcotics and, as such, was equally as guilty as a principal in the first degree. Id. Relying upon Heacock, this Court in Hickman v. Commonwealth, 11 Va. App. 369, 373, 398 S.E.2d 698, 700 (1990), aff'd, 242 Va. 263, 410 S.E.2d 88 (1991), held that the defendant’s participation as a principal in the second degree in the decedent’s ingestion of cocaine was sufficient to support his conviction under the felony-murder doctrine. See also Rollston, 11 Va. App. at 548, 399 S.E.2d at 830-31.
*294Because Virginia’s law on felony-murder liability for a felon who was not the actual killer is based upon a concert of action theory, I believe the Commonwealth was barred from convicting Berkeley under Code § 18.2-32 after it agreed to forego proceeding under a concert of action theory. Due process encompasses “a fundamental sixth amendment concern that guilt be initially adjudicated before a jury based on the government’s case as presented at trial.” Cola v. Reardon, 787 F.2d 681, 697 (1st Cir.), cert. denied, 479 U.S. 930 (1986). Thus, I dissent from the majority’s holding.
Felony-murder is also codified under Code § 18.2-33 as the killing of one accidently while in the prosecution of some felonious act other than those specified in Code §§ 18.2-31 and 18.2-32.
The Court cited both Commonwealth v. Redline, 137 A.2d 472 (Pa. 1958), and Commonwealth ex rel. Smith v. Myers, 261 A.2d 550 (Pa. 1970), in its holding that a participant in a felony may not be convicted of the felony-murder of a co-felon killed by the victim of the initial felony. The rationale employed in each case is different. Redline’s holding is based on a justifiable homicide theory. In Redline, a police officer shot and killed a robber. The court held that a felon cannot be liable for the murder of the lawful conduct of another, since it was justifiable homicide. Id. at 483. Thus, liability depended upon state of mind of the victim. Myers, the more recent of the two cases, reaffirmed an old concept based upon an agency theory—liability will only lie when the killing is done by one acting in furtherance of the felony. Id. at 555, 559-60.