Dissenting Opinion by
Mr. Justice Musmanno:On April 1, 1954, Henry Thomas, Jr., and Henry Jackson, Jr., invaded the grocery store of Frederick Cecchini in Philadelphia for the purpose of committing a robbery. Jackson held a revolver while Thomas rifled the cash register and then they both fled. The proprietor Cecchini seized a pistol from behind a counter and shot at Jackson who returned the fire. In the ensuing running gun battle Cecchini killed Jackson. The surviving robber Thomas was later apprehended and indicted for murder under the Act of June 24, 1939, P. L. 872, §701; 18 P.S. 4701, which provides, inter alia, that “(a) All murder . . . which shall be committed in the perpetration of . . . any . . . robbery . . . shall be murder in the first degree.”
After the Commonwealth had presented its evidence at the trial, the defendant demurred by contending that the facts did not make out first degree murder under the cited statute. The Court sustained the demurrer and the Commonwealth appealed. The Majority of this Court has reversed the judgment and ordered a new trial on the. charge of murder.
*679There can be but little doubt, of course, that Henry Thomas committed robbery, but I do not see how he can be charged with murder. The statute under which Thomas has been indicted specifically states that “all murder which shall be committed in- the perpetration of any robbery shall be murder in the first degree.” The killing of Jackson was not in the remotest degree murder. It was justifiable homicide. Cecchini not only had the right but -he was compelled to kill Jackson on two counts: (1) in self defense; (2) to prevent the escape of a fleeing felon. How can such a legal act be the basis of a charge of murder?
If Jackson had actually taken his own life at the scene of the robbery, or immediately thereafter, could Thomas be indicted for murder? According to the agreed statement of facts, Thomas and Jackson separated after leaving Cecchini’s store. Jackson ran west and Thomas ran east. While fleeing in the opposite direction from his accomplice, Jackson on his own engaged Cecchini in a battle and lost his life as the result of his own homicidal aggressiveness. To hold Thomas then for the act of Jackson who brought about his own death as much as if he had shot himself, is, as I view the matter, absolutely insupportable in the law books or in any classroom of serious discussion.
The obvious intent of the Act of 1939 was to punish with the severest possible penalty all those engaged in robbery if, during the unfolding of the robbery or escape therefrom, some innocent person was killed. The individual killed here was not an innocent person, he was not a victim; he was one of the perpetrators of the robbery. He was killed not during the furtherance of the robbery, but while the victim himself was trying to prevent the robbery.
One could conclude from the Majority Opinion that since Thomas was a robber, society is justified in kill*680ing Mm. But any penalty which goes beyond what the law specifically prescribes for a certain offense is an assault on the majesty and the dignity of the law itself. Society is not benefited when the norms of established procedure are exceeded by those charged with upholding them. If the sovereign power of the Commonwealth believes that robbers should be put to death, the Legislature should enact a statute to that effect. But until the General Assembly so speaks, this Court or any other Court has no right to read into the statute what is not there. As the Superior Court well said it in the case of Com. ex rel. Green v. Keenan, 176 Pa. Superior Ct. 103, 106: “The legislature has exclusive power to determine the penological system of the Commonwealth, and it alone can prescribe the punishments to be meted out for crime.”
With all the will in the world to wish otherwise, I can only see in the Majority’s Opinion an arbitrary exercise of power arising out of a zeal to combat criminals, which zeal does not surpass that of this writer’s. However, zeal must be channeled into the ways of the law as written. Although the Majority Opinion covers some 1200 words it never succeeds in explaining how the word “murder” in the Act of 1939 can be made to mean anything else. In fact at the end it practically concedes its arbitrariness when it says that Jackson’s death “was a hilling in the perpetration of a robbery.” I repeat that the statute says: “Murder which shall be committed in the perpetration of any robbery shall be murder in the first degree.” It does not say “killing.” If the Majority can torture the word “murder” into the word “killing,” then why may not manslaughter be read as assault and battery, why may burglary not become larceny and what is to hinder the interpretation of arson as malicious mischief? The Court has the power to do this, but with such abandonment to *681legalistic malapropism, it is inevitable that the whole criminal code will soon be awash in a verbal Sargasso Sea.
The defendant Thomas as an individual may be of little importance in the forum of intellectual argumentation which this case has created. It is to be regretted that there should not be a more worthy subject to save, but robber and criminal as Thomas undoubtedly is, he still may not be used as a target for illegal punishment. I do not want to see this highest court in our Commonwealth use processes of reasoning which do not respond to the demands of fair play which is part of the American way of life. I make a plea in this Dissenting Opinion for legal common sense. It is gratifying to note that the lower Court was not thrown into a panic by the problem which the situation presented. Its powers of reflection were not routed by the forces of emotion. It courageously held the line of reason at the Thermopylae of logic and did not retreat at the Gettysburg of fact.
But the Majority here retreats from logic, abandons precedent, and treats the words of a very clear statute as empty vessels into which any meaning may be poured. But such a procedure is to martyrize the dictionary and to make of the science of language a haphazard aggregation of loose-jointed syllables.
I protested against the decision in the case of Commonwealth v. Bolish, 381 Pa. 500 where this Court only several months ago decided that the defendant there could be tried for murder ip the first degree because his confederate was killed in an accidental explosion at the locale of the crime of arson even though Bolish was nowhere near the incendiary fire. I regarded that decision as a most unwise one and I still think so, but the hole in the dike of the law on this subject made by the pronouncement in that case is now *682widening into a full break, and blind vengeance pours through the break, indifferent to reason and justice.
Nor does the Almeida case, which the Majority quotes, justify what is being done here. In that famed case a policeman who was engaged in the endeavor to restrain and capture some robbers was shot accidentally by another policeman. Almeida, one of the robbers, was properly tried and convicted of murder on the felony-murder doctrine because his participation in the robbery encompassed the possibility of injuring or even killing innocent persons. Pointing out that the proximate cause of the policeman’s death was the robbery, this Court said: “The principle of proximate cause in criminal cases was applied by one of the ablest of Pennsylvania nisi prius judges 105 years ago, to wit, President Judge King, in the case of Commonwealth v. Hare, 2 Pa. L. J. 467 (1844). Two separate bodies of men were fighting each other with firearms in a public street and as a result a citizen was killed. Judge King held that the members of both bodies of men were guilty of felonious homicide .... President Judge King instructed the jury, inter alia, as follows: ‘If during such a scene of unlawful violence an innocent third person is slain,. . . such a homicide would be murder at common law . . . and all participants in such an act are alike responsible for its consequences .... Shall the violators of the public peace, whose unlawful acts have produced the death of the unoffending, escape, became from the manner and time of the fire it is impossible to tell from what quarter the implement of death was propelled? Certainly not Commonwealth v. Almeida, 362 Pa. 596, 606.
It will be noted that the Court speaks of the victim as an “innocent third person” or an “unoffending” person. But in the instant case Jackson was not an innocent third person, nor was he an unoffending per: *683son. He was one of the robbers! And he was killed. If it were possible to try a dead man, Jackson himself, under the theory announced by the Majority, should he be tried, for his own murder!
In the case of Commonwealth v. Moyer, 357 Pa. 181, this Court quoted from Bishop on Criminal Law as follows : “ ‘A man may be guilty of a wrong which he did not specifically intend, if it came naturally or even accidentally through some other specific or a general evil purpose . . . “One is responsible for what wrong flows directly from Ms corrupt intentions . . .” ’ ” (p. 194).*
But there was no wrong in Jackson’s death. Shooting Jackson was right, and therefore that killing, without assuming the most farcical position, cannot possibly form the basis of a murder charge.
This Court said also in the Almeida case: “If Mrs. Ingling [the widow of the deceased policeman] should bring an action ... for causing the death of her husband there is no doubt of her ability to recover a judgment against them.”
That observation, of course, is logical and just, but could anything be more absurd than Mrs. Jackson in the case at bar bringing a tort action against Thomas for the death of her husband who was not only tainted Avith the robbery he had committed but whose hands were stained with the murder he was attempting? That is the difference between the Almeida case and the present case.
The State of California recently passed on the very question we are here considering. In the case of People v. Ferlin, 265 P. 2d 230, 234-5, one Fisher and one Skala conspired to commit arson. In the perpetration of their crime, Skala was accidentally killed. Ferlin was then tried for murder on the felony-murder theory *684and was convicted. But the Supreme Court of California reversed the verdict saying: “It cannot be said from the record in the instant case that defendant and deceased had a common design that deceased should accidentally kill himself. Such an event was not in furtherance of the conspiracy, but entirely opposed to it.' It follows that the verdict of the jury finding the defendant guilty (of murder) . . . was against the law.” What the California Supreme Court said above applies to the facts in the case before us. As I have already stated, the killing in this case was not in furtherance of the robbery, “but entirely opposed to it.”
The crime situation in the United States is admittedly a grave one and all forces of the law, including the judiciary, have a duty to exert every effort to vanquish criminals. But what the Majority is doing here is grotesque. It is investing the dead Jackson with virtues of good citizenship. It completely ignores that Jackson was a robber, a felon, a would-be murderer, an armed member of the criminal forces the nation is combatting. He was seeking to destroy Cecchini, an admittedly good citizen. But Cecchini turned the tables on him and Jackson made his exit in true bandit fashion, shooting it out with the law. To use this felon’s death as the basis for the charge of constructive murder is to turn the drama of a murder trial into a legalistic vaudevillian performance.
The whole theory of the criminal law is to punish for what should not have happened. In every prosecution for murder the controlling principle of the Commonwealth’s case is that the dead victim should be alive. The rationalization behind criminal jurisprudence is that if society could turn back time, it would prevent the happening of the event which it now condemns. But if that chronological miracle could be achieved in this case, society would not desire to pre*685vent the killing of Jackson, who received his just deserts as he was engaged in trying to kill an innocent person.
There has never so far as I have been able to discover until this case a prosecution for murder that was not based on the proposition that the victim had the right to live and therefore the defendant is to be punished for having untimely cut off the days of that victim. The killing which is the subject of every murder trial represents evil. But in this ease we have the startling situation of the law seeking to punish not evil but good. The killing of Jackson was not evil, it was not even excusable homicide; it was a killing which the law demanded. How can anyone be punished for what the law required? If the reasoning adopted by the Majority in the disposition of this case were to be carried to its ultimate development, it would mean that everyone connected with a robbery should be executed if one of the robbers went to the electric chair, because that in itself is a killing.
Should the Courts be placed in the preposterous situation of trying a murder case where no murder was committed?
I dissent.
AU italics, mine.