Concurring Opinion by
Mr. Justice Cohen:I concur in the reasoning and result of the majority opinion- in reversing the judgment of conviction in *511Commonwealth v. Redline and in overruling the principle established in Commonwealth v. Thomas, 382 Pa. 639, 117 A. 2d 204 (1955). However, I believe the majority did not go far enough. I would also overrule our decisions in Commonwealth v. Almeida, 362 Pa. 596, 68 A. 2d 595 (1949) and Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464 (1955).
To me a conviction of murder in the first degree upon the theory of felony-murder depends upon the combination of the following elements — all of which are essential.
1. There must be a homicide.
2. The homicide must have been committed by an act of the defendant or, by applying the “co-conspirator’s rule”, by one acting in concert with him in the furtherance of the criminal conspiracy.
3. The criminal undertaking during which the death resulted must have been a felony (a common law felony).
In such circumstances the felony-murder rule operates to supply the element of malice aforethought to the homicide so as to make the homicide murder. Where the murder was committed in the course of the felony of arson, rape, burglary, robbery, or kidnapping, the Pennsylvania “degree of murdei*” statute applies to make the murder one of first degree. All other felony-murder not perpetrated in the course of the above enumerated felonies is murder in the second degree. (Act of June 24, 1939, P. L. 872, §701, 18 P.S. §4701.)
When Almeida is weighed against the above, requirements it is apparent that the decision cannot stand because the homicide therein was not committed “by an act of the defendant or, by applying the co-conspirator’s rule, by one acting in concert with him in furtherance of the conspiracy.” ■
*512When Bolish is likewise weighed against these requirements, it also is apparent that the decision of this Court cannot stand because in that case no homicide was committed.
In Almeida the defendant in attempting to escape from the scene of his robbery provoked a gun battle with police in which a third party was shot and killed by one of the pursuing officers. The policemen’s act of shooting was excusable. That excusable shooting, however, cannot confer liability upon Almeida for the death of a third party. “The hilling must have been done by the defendant or by an accomplice or confederate or by one acting in furtherance of the felonious under talcing. ” (Majority opinion page 496). “In adjudging a felony-murder, it is to be remembered at all times that the thing which is imputed to a felon for a killing incidental to his felony is malice and not the act of hilling.” (Majority opinion page 495) (emphasis in the original). Since Almeida himself did not commit the homicide, nor did anyone acting in concert with him so do, it follows that Almeida should not have been convicted of murder. (See the numerous cases cited in Majority opinion pages 486-510).
In the Bolish case, a conspirator, Flynn, accidentally killed himself in the perpetration of an arson while his co-conspirator, the defendant, remained without. Bolish also should not have been convicted of murdér because no homicide was committed. “Homicide does not include intentional or accidental self-destruction.” I Warren, Homicide 164 (Permanent ed. 1938) (emphasis supplied). Homicide is “the killing of one human by another.” (See cases cited in Majority opinion pages 492, 493, 498). Thus, the Commonwealth failed to establish the first requirement for a conviction of felony-murder; there being no homicide, there was no murder.
*513Flynn was not guilty of any crime for accidentally killing himself. Bolish, therefore, although equally liable for all acts of his co-conspirator in furtherance of the conspiracy, cannot be held criminally responsible for an act of his co-felon if the act does not bring liability upon the co-conspirator himself.
In the only other reported opinion in which this issue was presented to an appellate court for determination, People v. Ferlin, 203 Cal. 587, 265 Pac. 230 (1928), the California Supreme Court held, on facts substantially similar to those of the Bolish case, that the accused must be acquitted of murder. And in People v. LaBarbera, 287 N. Y. Supp. 257 (Sup. Ct. 1936), again on facts akin to those of the Bolish case, it was held that under the New York Penal Law the accused was not guilty of murder because there was no killing of one person by another.
I might be compelled to a different conclusion in the Bolish case if, as the majority opinion suggests, the evidence pointed inescapably to a finding that Flynn was a compliant dupe in Bolish’s hands and was knowingly sent by Bolish into a situation likely to cause his death.1 However, the evidence does not justify such a conclusion, nor was this hypothesis clearly explained and submitted to the jury as the sole basis for a conviction of murder under the evidence presented in the Bolish case.
From the standpoint of public policy what purpose is served by the result reached by the majority in the Bolish case? “. . . [T]he deterrent effect of such a result is very doubtful; the increased punishment strikes at the wrong thing — not at the harm intended, *514but at the slight chance of an unintended greater harm; and emotions of vengeance are an insufficient justification for the fictional attribution of the mens rea of murder [and certainly the act of killing itself] to one whose desire was quite certainly not a desire to kill.” Morris, The Felon’s Responsibility for the Lethal Acts of Others, 105 U. of Pa. L. Rev. 50, 80 (1956).
If, as the majority point out, new criminal liabilities should be imposed by the legislature rather than formulated by the court, then the decisions in both Bolish and Almeida should not be allowed to stand. Until the decisions in these two cases no defendant had ever been held guilty of murder for either the accidental self-killing of a fellow-conspirator or for the excusable killing of an innocent party by an officer of the law even though both deaths occurred while felonies were in progress. That being so, the liability of the defendants for murder in Bolish and Almeida can only be the result of a piece of judicial ex post facto lawmaking. Criminal acts which did not warrant convictions of murder at the time of their commission should not later be held by this Court to constitute murder.
I would overrule Commonwealth v. Almeida and Commonwealth v. Bolish.
One “commits” a homicide if he deliberately places another in a position of deadly peril from an independent force or agency and death thereby results.