Dissenting Opinion by
Mb. Justice Bell:The brutal crime wave which is sweeping and appalling our Country can be halted only if the Courts stop coddling, and stop freeing murderers, communists and criminals on technicalities made of straw. The Court's seem to have forgotten that Justice is not á one-way street — law-abiding citizens and law-abiding eommunitiés are entitled, at least equally with criminals, tó thé protection of the law.
*515The felony murder doctrine was clearly and well established in Pennsylvania by legal principles which are several hundred years old and in particular by 5 decisions of the Supreme Court of Pennsylvania handed down in the last ten years which are directly in point and sustain, without the slightest doubt, the conviction of this murderer (Eedline). Faith in Justice, and confidence and trust in our Courts are seriously impaired when these recent and notable decisions of this Court, as well as long established principles of law- are repudiated and overruled or discarded — not ■for the protection of society or for any other worthy objective, but to give further protection to individuals who are defying our laws, destroying the peace and jeopardizing the welfare of our communities.
Eedline and Worseck held up at gun-point persons in the Midway Eestaurant in Eeading. They disarmed and held captive two police officers. They then fled, compelling a man named Herschman to accompany them, obviously intending to use him as a shield. Some officers saw them, whereupon Eedline aimed a 45-cali-ber revolver at a policeman who was 15 to 20 feet away, and fired point-blank but failed to hit his intended victim. Eedline was the first one to shoot. The policeman returned the fire and in the ensuing gun battle two policemen, Eedline and Worseck were injured, the policemen seriously. Worseck died from the wound inflicted by a bullet from a policeman’s gun. The majority can free Eedline only by performing a colossal surgical operation on the felony murder law of Pennsylvania — with disastrous damage to the public.
In Order to Free Eedline of Murder
(1) the present majority has to expressly overrule the very important and controlling recent felony murder decisions of this Court namely Commonwealth v. *516Almeida, 362 Pa. 596, 68 A. 2d 595 (1949), the leading modern case on the subject of felony murder which has since been affirmed and quoted with approval by this Court in 4 recent decisions, Commonwealth v. Moyer and Byron, 357 Pa. 181, 53 A. 2d 736, Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464, and Commonwealth v. Thomas, 382 Pa. 639, 645, 117 A. 2d 204 (handed down only two years ago) which the majority admit unquestionably sustains Redline’s conviction ;*
(2) the present majority has to repudiate all the basic reasons and fundamental principles upon which this Court’s prior felony murder decisions were predicated in Commonwealth v. Moyer and Byron, 357 Pa. (1947), in Commonwealth v. Almeida, 362 Pa. (1949), in Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d 733 (1953), in Commonwealth v. Bolish, 381 Pa. (1955) and in Commonwealth v. Thomas, 382 Pa. (1955) ;
(3) the present majority has to adopt the contentions and theories which have been repeatedly and strenuously argued by convicted murderers for ten years, but which, after very careful consideration, were utterly and completely refuted and rejected by this Court in five carefully considered and comprehensive opinions.
Because of these facts it is necessary to carefully and thoroughly analyze and review the principles of felony murder, its origin and development, and most important of all, the recent Pennsylvania cases inter*517preting it, in order to demonstrate the fallaciousness and untenability of the majority opinion.
The majority opinion specifically decides that when two robbers attempt to kill a policeman and in the ensiling gun-play one of the robbers is killed by the policeman, the other robber cannot be convicted of murder because it was a justifiable killing, i.e., it is justifiable to kill a robber. Let us examine how the majority opinion reaches that conclusion.
Common Law Murder According To Blaekstone
The majority opinion goes back to and bases its conclusion on Blackstone’s Commentaries, circa 1765. Blaekstone, quoting from Sir Edward Coke, Lord Chief Justice of England, thus defines murder: “ ‘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’ ”: IV Blackstone’s Commentaries, §195, page 1591. We agree with the majority that “malice, express or implied” is the “hall-mark” of murder both in Blackstone’s day and today: IY Blackstone’s Commentaries, §198, page 1596; Commonwealth v. Bolish, 381 Pa., supra; Commonwealth v. Almeida, 362 Pa., supra; Commonwealth v. Dorazio, 365 Pa. 291, 74 A. 2d 125; Commonwealth v. Thomas, 382 Pa., supra; Commonwealth v. Malone, 354 Pa. 180, 47 A. 2d 445; Commonwealth v. Drum, 58 Pa. 9.
We note, parenthetically, that the law of Pennsylvania dealing with murder, including felony murder, has naturally advanced beyond that in Blackstone’s day in order to keep pace with modern conditions of society. However, even Blaekstone furnishes no authority for the majority’s opinion or conclusion. For example,, Blaekstone says that an accidental or unintentional homicide is an excusable homicide (§182, page *5181580 et seq.). But Blaekstone then gives examples which demonstrate — and the majority opinion admits— that this statement or proposition of law did not mean then, and certainly does not mean today, that all accidental or unintentional, homicides are excusable. An excusable, i.e. an accidental or unintentional homicide was interpreted, even in Blackstone’s day and many times' since then in Pennsylvania,* not to mean or include an accidental or unintentional death which arises out of or results from a homicide committed during a felony. For example, Blaekstone says: “. . . if one intends to do another felony, and undesignedly kills a man, this is also murder”: IY Blackstone’s Commentaries, §§200-201, page 1599. lie then gives the classic illustration which has become hornbook law to every student, lawyer and Judge: “Thus, if one shoots at A. and misses him, but kills B., this is murder, [even though the killing of B. was unintentional and accidental] because of the previous felonious intent, which the law transfers from one to the other.” In other words, as Blaekstone points out, if A intends to shoot B but misses him and unintentionally kills a stranger, or if A, intending to commit any one of the crimes which were felonies at common law,** accidentally and unintentionally kills a man, he is guilty of murder. This type of felonious homicide became known as felony murder, and as the majority opinion admits, was firmly imbedded in the common law even before Blackstone’s day.
*519The reason for the felony murder doctrine or principle in Blackstone’s day as well as today; is obvious —it was established as a wise and absolutely necessary rule for the protection of society.
The majority opinion admits, as it must, that under the decisions of the Supreme Court of Pennsylvania. — unless they are overruled — (1) Bedline was properly convicted of murder and (2) the killing of the co-robber by a policeman was a justifiable killing qua the policeman, but not qua the robber who set in motion the felonious forces which he knew would likely cause death to his co-felon or to a policeman or the proposed victim or an innocent bystander. The majority, attempting to escape these inescapable facts, bases its opinion upon the syllogism: Blackstone holds that no one can be convicted for a justifiable killing and since it is justifiable for a policeman to kill a robber during the perpetration of a robbery, no one can be convicted of murder for killing one of the robbers. While it is immaterial what Blackstone said, in view of the Pennsylvania cases interpreting felony murder, the majority’s theory or conclusion is not supported even by Blackstone.
Blackstone says, §177, page 1577: “Now, homicide, or the killing of any human creature, is of three kinds: justifiable, excusable, and felonious. The first has no share of guilt at all; the second very little; but the third is the highest crime against the law of nature that man is capable of committing.” . Blackstone then gives examples of (a) justifiable homicides, and (b) murders; some of the killings which were considered murder in Blackstone’s day would be considered justifiable or excusable today.
The first and probably most important example of justifiable hómicidé given by Blackstone is the case of an executioner who validly executes a convicted cri'mi-' *520nal who is condemned to die. He then points out that to wantonly kill a felon or a traitor is murder. In other words, killing a felon or a convicted murderer may be justifiable if committed by X and murder if committed by Y. Furthermore, Blackstone nowhere says that if A and B agree to rob C, A could not be guilty of the murder of B if B was intentionally or unintentionally shot by a policeman during the robbery.
Moreover, the law is not static — it is progressive; its essence, its strength, its growth, and its efficiency lie in the indisputable fact that both in the civil law and in the criminal law the principles, and particularly the basic principles enunciated and established by the Courts are continuously applied to new or different factual situations. If that were not so, the domain of the law would be as large and extensive as the principality of Monaco, and the law would progress like a turtle. Countless examples of this axiom or self-evident truth are familiar or will quickly occur to everyone.
Murder In Pennsylvania Is Common Law Murder As Modified By The Legislature And As Interpreted And Applied By The Supreme
Court of Pennsylvania
' Murder in Pennsylvania was originally common law murder* as it existed at common law in England and subsequently in colonial times and in the early days of the Commonwealth. But murder in Pennsylvania is no longer solely common law murder as it existed in colonial times and subsequently in the early days of this Commonwealth. First, our courts have interpreted murder in the light of modern conditions; and *521second, in addition to the statutory train-wreclcing crime of murder,* the Legislature (1) has made death resulting accidentally, unintentionally or otherwise from the common law misdemeanor of kidnapping, murder in the first degree, and (2) has made a killing, accidental, unintentional or otherwise, in the perpetration of statutory arson, staUtiory rape, and statutory burglary, murder in the first degree: Commonwealth, v. Bolish, 381 Pa., supra; Commonwealth, v. Maloney, 365 Pa. 1, 73 A. 2d 707; Commonwealth v. Gossard, 383 Pa. 239, 117 A. 2d 902.
Nevertheless, it remains true that our theory and our definition of murder was initially derived from and even today is based, with the above statutory exceptions, upon the common law as interpreted and applied to modern conditions by the decisions of the Supreme Court of Pennsylvania. These recent decisions of the Supreme Court of Pennsylvania are the key to the felony murder door — the key which the majority have-forgotten or lost.
*522“Murder is defined as an unlawful killing of another with malice aforethought, expressed or implied: Commonwealth v. Buzard, 365 Pa. 511, 515, 76 A. 2d 394”: Commonwealth v. Bolish, 381 Pa., supra. How have the Courts of Pennsylvania interpreted the words “implied malice”, and in particular, how have they applied the principles of felony murder to the complex situations of our modern life? This'Court has applied the felony murder doctrine and its basic principles in five* cases in the last ten years in which the murder occurred in the perpetration of one of the statutory felonies. Each of the recent felony murder cases after 1949 reaffirmed the decision of this Court in the leading case of Commonwealth v. Almeida, 362 Pa. (1949) and reiterated, usually at great length, the basic principles upon which that decision was so clearly and convincingly predicated.
We shall analyze and review the recent felony murder decisions of this Court and the rationale and the fundamental principles upon which they were based.
Recent Pennsylvania Cases Dealing With Felony Murder
In Commonwealth v. Moyer and Byron, 357 Pa. 181, 53 A. 2d 736 (1947), defendants’ conviction of murder was sustained by this Court which specifically held that if an innocent bystander was killed during .a rob-, bery it made no legal difference whether the bystander was killed by one of the felons or by one of the proposed victims. That case directly rules the Bedline case and sustains his conviction of murder. The Court said (page 188 et seq.) : “The second assignment of error is based on the excerpt from the charge of the court in which the jury was instructed-that: ‘All of *523the participants in an attempted robbery are guilty of murder in the first degree if someone is killed in the course of the perpetration of the first-named crime. That is the law of the Commonwealth of Pennsylvania.’ The appellants challenge that statement and say that the issue in this case is whether or not the decedent met his death by a wound inflicted by the defendant Moyer or by the garage owner Shank.
“This assignment of error poses the question whether or not these defendants can legally be convicted of murder if the bullet which killed Zerbe came from the revolver fired by the latter’s employer in an attempt by him to frustrate the attempted robbery. We have no doubt that even under these facts, which facts the Commonwealth does not concede, the complained of conviction was proper.
“A man or men engaged in the commission of such a felony as robbery can be convicted of murder in the first degree if the bullet which causes death toas fired not by the felon but by the intended victim in repelling the aggressions of the felon or felons. . . .
“The doctrine that when malice is the mainspring of a criminal act the actor will be held responsible for any consequence of his act though it was not the one intended was recognized centuries ago when it was held that, quoting from Blaekstone, Book IV, page 1599, section 201, ‘if one shoots at A and misses him, but kills B, this is murder, because of the previous felonious intent, which the law transfers from one to the other.’ (Italics supplied). It is equally consistent with reason and sound public policy to hold that when a felon’s attempt to commit robbery or burglary sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence *524results from the initial criminal act. For any individual forcibly to defend himself or his family or his property from criminal aggression is a primal human instinct. It is the right and duty of both individuals and nations to meet criminal aggression with effective countermeasures. Every robber or burglar knows when he attempts to commit his crime that he is inviting dangerous resistance. Any robber or burglar who carries deadly weapons (as most of them do and as these robbers did) thereby reveals that he expects to meet and overcome forcible opposition. What this court said in Commonwealth v. LeGrand, 336 Pa. 511, 518, about burglars, applies equally to robbers: “Every burglar is a potential assassin and when his felonious purpose encounters human opposition his intent to steal becomes an intent to Mil and any weapon he finds at hand becomes a weapon of murder.” Every robber or burglar knows that a likely later act in the chain of events he inaugurates will be the use of deadly force against him on the part of the selected victim. For whatever results follow from that natural and legal use of retaliating force, the felon must be held responsible. For Earl Shank, the proprietor of a gas station in Eidley Township, Delaware County, which at 11 P.M. on July 13, 1946, was being attacked by armed robbers, to return the fire of these robbers with a pistol which he had at hand was as proper and as inevitable as it was for the American forces at Pearl Harbor on the morning of December 7, 1941, to return the fire of the Japanese invaders. The Japanese felonious invasion of the Hawaiian Islands on that date was in law and morals the proximate cause of all the resultant fatalities. The Moyer-Byron felonious invasion of the Shank gas station on July 13, 1946, was likewise the proximate cause of the resultant fatality.
*525“If in fact one of the bullets fired by Earl Shank in self-defense killed Harry Zerbe, the responsibility for that killing rests on Moyer and his co-conspirator Byron, who had armed themselves with deadly weapons for the purpose of carrying out their plan to rob Shank and whose murderous attack made Shank’s firing at them in self-defense essential to the protection of himself and his employees and his property. If, for example, a father sees his child being kidnapped and opens fire, as any normal father would be expected to do if he had a gun available, and if the bullet which he fires at the kidnapper inadvertently kills the child, the death of the child is properly attributable to the malicious act of the kidnapper.”
That case not only on its facts but by its reiteration and application of basic principles of law directly governs and controls the Bedline case and compels us to affirm Redline’s conviction of murder.
Commonwealth v. Moyer and Byron was followed and approved by Commonwealth v. Almeida, 362 Pa. 596, 68 A. 2d 595, which became known as the leading felony murder case in Pennsylvania. In that case, which factually and legally directly rules the Bedline case and affirms his conviction of murder, Almeida was convicted of murder when a policeman was killed during a robbery by a bullet from the gun of another policeman. We believe that no case in the history of this Commonwealth was ever as carefully considered, debated and thoroughly discussed before the Opinion was approved by that distinguished Court as the Almeida case.* The Court, speaking through Chief Justice Maxey in a learned comprehensive Opinion of 41 pages, said, inter alia: “The Commonwealth contends that the jury was justified in finding that the bullet *526which killed Ingling was fired by one of the three confederates and further that it is immaterial whether the bullet was fired by one of them or whether it was fired by one of the policemen in repelling the assault of the bandits and in attempting to frustrate their escape.
“The defendant’s first assignment of error is that the court charged the jury as follows: it makes no difference who fired the shot, even if a shot was fired by Mrs. Ingling [a passerby who was the wife of the deceased] it was murder.’ Defendant’s second assignment of error is based on the court’s refusal to affirm defendant’s thirteenth point for charge, which reads as follows: ‘If you find that the bullet which was fired and killed the deceased was not fired by any one of the three men charged with perpetrating the robbery in question, you cannot convict the defendant of murder in the first degree.’ ... ‘I will charge the jury that it makes no difference who fired the shot, even if a shot was fired by Mrs. Ingling, it was still murder.’
“In his charge the trial judge said: ‘If that [fatal] shot were fired by anyone, even anyone removed from these three participants, and that shot was fired in the perpetration of a robbery, members of the jury, that is murder; that is murder in the first degree. . . . If one or more persons set in motion a chain of circumstances out of which death ensues, those persons must be held responsible for any death which by direct, by almost inevitable sequence, results from such unusual criminal act. . . . So, if the death of Officer Ingling was the inevitable consequence of the' unlawful act, or acts, of the defendant, or the continuation of the unlawful act, or acts, of the defendant, acting in concert — for every one who does an unlawful act is considered by the law as the doér of all that follows *527—if that unlawful act be robbery, and if the result of that act is a killing, members of the jury, that killing is murder.’
“The defendant’s thirteenth point for charge which the trial judge correctly rejected was in effect a request that the court instruct the jury that in order to convict the defendant of the death of Officer Ingling, the jury would have to find that the fatal shot was fired by one of the three robbers. Such an instruction would have been in defiance of this Court’s decision in Commonwealth v. Moyer and Commonwealth v. Byron, 357 Pa. 181, 53 A. 2d 736, which decision the trial judge dutifully followed. In that decision handed down on June 30, 1947, this Court held in an opinion concurred in by the siso judges who heard the argument on appeal, that: ‘A man or men engaged in the commission of such a felony as robbery can be convicted of murder in the first degree if the bullet which causes death was fired not by the felon but by the intended victim in repelling the aggression of the felon or felons . . . when a felon’s attempt to commit robbery or burglary sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act* . . . *528Every robber or burglar knows when he attempts to commit his crime that he is inviting dangerous resistance ... If in fact one of the bullets fired by Earl Shank in self-defense killed Harvey Zerbe, the responsibility for that killing rests on Moyer and his co-conspirator Byron, who had armed themselves with deadly weapons for the purpose of carrying out their plan to rob Shank and whose murderous attack made Shank’s firing at them in self-defense essential to the protection of himself and his employees and his property.’ . . .
“The factual issue the defendant raises in this case is identical with the factual issue raised by the defendants in Commonwealth v. Moyer and Byron, supra; to wit, who fired the fatal bullet — one of the robbers or a man who was lawfully resisting the criminal attack of the robbers? The legal question presented and decided in the Moyer-Byron case was precisely the legal question raised in the instant case; to wit, when men who are feloniously shot at by robbers return their fire in self-defense and a third person is killed by a shot fired by the defenders, are the robbers whose felonious action caused the shooting guilty of murder? In the Moyer-Bryon case this Court after a thorough *529discussion of that question decided that under the facts of that case, ‘The Moyer-Byron felonious invasion of the Shank gas station on July 13, 1946, was likewise the proximate cause of the resultant fatality.’ (191 of 357 Pa.) That ivas not dictum but authority.* ‘Whenever a question fairly arises in the course of a trial, and there is a distinct decision thereon, the court’s ruling in respect thereto can in no sense be regarded as mere “dictum”.’ New York Cent. & H.R.R. Co. v. Price, 159 F. 330, 332, 86 C.C.A. 502, 16 L.R.A., N.S., 1193. See also Schuetz’s Estate, 315 Pa. 195, 172 A. 865. Our decision in Commonwealth v. Moyer and Byron, supra, is authority for our decision in this case.
“Our decision in the Moyer-Byron case was an application of the long established* principle that he lohose felonious act is the proximate cause of another’s death is criminally responsible for that death and must answer to society for it* exactly as he who is negligently the proximate cause of another’s death is civilly responsible for that death and must answer in damages for it . . . ‘Though there is an active force intervening after defendant’s act, the result will nevertheless be proximate if the defendant’s act actively caused the intervening force. In such a ease the defendant’s force is really continuing in active operation, by means of the force it stimulated into activity. . . Defendant *530may by his conduct so affect a person or an animal as to stir him into action; the result of such action is chargeable to defendant . . .’
“Justice Holmes in his book on ‘The Common Law’, (36th Ed.) pp. 56 and 57, said: Acts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies them . . . ‘The object of the law is to prevent human life being endangered or taken . . . the law requires [men] at their peril to know the teachings of common experience, just as it requires them to know the law . . . the test of murder is the degree of danger to life attending the act under the known circumstances of the case.’
“Courts in the United States, England and Canada have applied the foregoing principles of ‘proximate cause’ in murder cases, as the cases now to be cited and reviewed in this opinion demonstrate.
“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. At the trial of Isaac Hare, one of the rioters, on a charge of murder, 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 in all the parties engaged in the affray. It would be a homicide, the consequence of an unlawful act, and all participants in such an act are alike responsible for its consequences. If the law should be called upon to detect the particular agents by whom such a slaying has been perpetrated in a general combat *531of this hind, it toould perpetually defeat •justice and give immunity to guilt. . . . Shall the violators of the public peace, whose unlawful acts have produced the death of the unoffending, escape, because from the manner and time of the lire it is impossible to tell from what quarter the implement of death was propelled? Certainly not. The law declares to such outlaws : you are equally involved in all tlie consequences of your assault on the public peace and safety. Is there any hardship in this principle? Does not a just regard to the general safety demand its strict application? . . . Joseph Eice Avas killed ... at a time when the probabilities are that both belligerents Avere maintaining a desultory fire upon each other, and hence it becomes difficult to say with positive accuracy by Avhiclx he was killed. Are the party at the market to escape the consequence of his death by raising a doubt whether a shot from their opponents at Jefferson Street, Harmony court and the Germantown road, may not have killed him?’ After stating that 'each and all are criminally liable for all the consequences flowing from such acts of unauthorized vengeance’, Judge King said: 'Such Ave believe to be the Iuav, founded on the plainest reason, justified by the clearest expediency, and demanded by the most obvious necessity.’ (Italics supplied.) . . .
''Applying the aforegoing principles to the instant case, we have a band of robbers engaged in an exchange of shots with city policemen whose duty it is to subdue the■ bmidits if possible. In the course of the exchange of deadly bullets Officer Ingling is slain. The policemen cannot be charged with any wrongdoing because their participation in the exchange of bullets Avith the bandits was both in justifiable self-defense and in the performance of their duty. The felonious acts of the robbers in firing shots at the policemen, Avell knoAving *532that their fire would be returned, as it should have been, was the proximate cause of Officer Ingling’s death.
“The doctrine of proximate cause in criminal cases was applied by the Supreme Court of Tennessee in Letner v. State, 299 S.W. 1049 (1927). The facts were that three youths were crossing a river in a boat at a dangerous point. When the boat ivas about in the middle of the river someone standing above the western bank shot into the water about six feet from the boat,. A second shot hit the water nearer the boat whereupon one of the youths jumped out causing the boat to capsize as a result of which the two other occupants were drowned. The man who fired the shot was indicted for murder. The defense contended that the death of the two youths was caused by the capsizing of the boat by the third occupant and that this act constituted a supervening cause. The Court held that the defendant could not avoid the consequences of his wrongful act by relying on a supervening cause which resulted naturally and proximately from that act. The Court said: ‘. . . in the instant case the wrongful act of the defendant; that is, firing at or near the boys in the boat, was the proximate cause, the producing cause, the cause that was primarily responsible for the death of deceased.’ . . . ‘Defendant’s act or omission need not be the immediate cause of the death; he is responsible if the direct cause results naturally from his conduct.’
“Under neither the common law nor our statute is an accidental killing murder. It is not even a felony. Yet this Court has uniformly held that an accidental killing in the perpetration of or the attempt to perpetrate a robbery or burglary or any other of the enumerated felonies is murder in the first degree. The reason is that any person committing or attempting to commit, any of these major felonies is motivated by *533malice and when the killing of a human being directly results, even though not intended, from his malicious act, it is murder because malice, the essential element of murder is present. The felon’s Malicious act in perpetrating or attempting to perpetrate, his planned major crime is justly regarded by the law as the causative antecedent of the homicide. In cases of this kind society puts its punitive hand on the person responsible for the legally blamable cause. This doctrine is authoritatively recognized in the law. . . .
“It has been argued that our opinion in the case of Commonwealth v. Moyer and Commonwealth v. Byron, supra, and our opinion in the instant case are ‘novel’. They are no more of a ‘novelty’ than was the opinion of this Court in Commonwealth v. Doris, supra. They are no more ‘novel’ than was the first decision which ever held that even an accidental killing in the perpetration or attempted perpetration of robbery or burglary is murder in the first degree. That is now the law of this Commonwealth: Commonwealth v. Lessner, 274 Pa. 108, 118 A. 24; Commonwealth v. Kelly, 333 Pa. 280, and 337 Pa. 171, 10 A. 2d 431. They are not as novel as was the first decision at common law that if one shoots at ‘A’ and misses him and kills ‘B’, this is murder, because of the previous felonious intent, which the law transfers from one to the other. (Blackstone, Book IV, page 1599, section 201.)
“What Justice Cardozo said is applicable here: ‘when they [judges] are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distcmce . , . The final cause of law is the welfare of society* . . . Justice and general utility, *534such will be the two objectives that will direct our course.’ Justice Holmes said: H think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage.’
“There can be no doubt about the cjustice’ of holding that felon guilty of murder in the first degree who engages in a robbery or burglary and thereby inevitably calls into action defensive forces against him, the activity of which forces result in the death of a human being. Neither can there be any doubt about the ‘general utility’ of a ruling which holds this defendant Almeida guilty of the murder of Officer Ingling, even if it had been established that the bullet which killed that officer was fired by one of the police officers who were returning the fire of Almeida and his confederates and were attempting to prevent their escape. . . .
“A knave who feloniously a/nd maliciously starts ‘a chain reaction’ of acts dangerous to liuma,n life must be held responsible for the natural fatal results of such acts. This is the doctrine enunciated by the textbook writers • on criminal law, and which has been applied by the. courts . . .”
If the decisions of this Court in Commonwealth v. Moyer and Byron and Commonwealth v. Almeida, which applied long established legal principles to protect law-abiding citizens and law-abiding communities, displeased the people of Pennsylvania, the Legislature could, and according to the majority opinion’s view, should have passed an Act changing the law and absolving robbers and other dangerous criminals from- a killing which occurred in the perpetration of a robbery, unless one of the robbers fired the fatal shot. Although *535the Legislature met many times thereafter, namely, January 4, 1949 to April 28, 1949, January 2, 1951 tó December 22, 1951, January 6, 1953 to July 27, 1953, January 3, 1955 tó May 22, 1956, and January 1, 1957 to June 20, 1957, it did not change the decisions of Moyer, Byron and Almeida or the basic principles upon which they were predicated.
Furthermore, the majority opinion blandly and blindly ignores the very important fact — the importance and magnitude of which is overpowering — that Commonwealth v. Almeida was thereafter affirmed by four decisions of the Supreme Court of Pennsylvania, three of which quoted extensively from that case and based their decision (of guilty of murder) upon the basic principles so clearly and forcefully enunciated and reiterated in the Almeida case. These decisions were Commonwealth v. Phillips, 372 Pa. 223, 93 A. 2d 455 (1953) ; Commonwealth v. Lowry, 374 Pa., supra (1953) ; Commonwealth v. Bolish, 381 Pa., supra (1955) ; Commonwealth v. Thomas, 382 Pa. 639, 117 A. 2d 204 (1955).
In Commonwealth v. Lowry, 374 Pa., supra, the Court affirmed a look-out’s conviction of murder and in a unanimous opinion said (page 599) : “Where a killing occurs in the course of a robbery, all who participate in the robbery including the driver of the get-away car are equally guilty of murder in the first degree even though some one other than the defendant fired the fatal shot. Com. v. Robb, 284 Pa. 99, 130 A. 302; Com. v. Moyer and Com v. Byron, 357 Pa. 181, 53 A. 2d 736; Com. v. Hough, 358 Pa. 247, 56 A. 2d 84; Com. v. Almeida, 362 Pa. 596, 68 A. 2d 595; Com. v. Thomas, 357 Pa. 68, 53 A. 2d 112; Blackstone, Book 4, pages 192, 193.”
Commonwealth v. Bolish, 381 Pa., supra (1955) sustained another conviction of felony murder. That *536case reaffirmed Commonwealth v. Almeida, 362 Pa., supra, and Commonwealth v. Moyer, 357 Pa. supra, and predicated its conclusion solely and entirely upon the reasoning and principles enunciated in those cases. The Court held that a man who commits or procures the commission of arson is guilty of murder in the first degree, if the death of the accomplice resulted accidentally and unintentionally from the accomplice’s own act in the commission of the arson. The Court, quoting extensively from the Almeida and the Moyer-Byron cases, said inter alia (pages 510 et seq.) :
“We now come to the main contention, of the defendant, viz.: the killing which resulted from this arson could not amount to a so-called felony murder and consequently was not murder under the law of Pennsylvania. Expressed another way, the so-called felony murder doctrine does not apply to the death of an accomplice which resulted from the accomplice’s own act in the perpetration of arson . . . Defendant assumes (a) that Flynn was an accomplice and (b) actually set the fire which caused his own death, and based on this premise argues that Flynn’s act was an intervening and superseding force which, relieved defendant from the killing. . . .
“The theory of the common law was that anyone who committed a common law felony possessed legal malice; and where a killing naturally resulted therein or therefrom, even though the killing was unintentional or accidental, the legal malice was carried over from the original felony and the original felon was guilty of murder. . . .
“Malice express or implied is the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, *537cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances.
“To summarize: If there was an unlawful killing with (legal) malice, express or implied, that will constitute murder even though there was no intent to injure or kill the particular person who was killed and even though his death was unintentional or accidental: cf. Commonwealth v. Almeida, 362 Pa. 596, 68 A. 2d 595; Commonwealth v. Moyer and Commonwealth v. Byron, 357 Pa. 181, 53 A. 2d 736; Commonwealth v. Guida, 341 Pa. 305, 19 A. 2d 98; Commonwealth v. McLaughlin, 293 Pa. 218, 142 A. 213; Commonwealth v. Robb, 284 Pa. 99, 130 A. 302; Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d 733; Commonwealth v. Buzard, 365 Pa. 511, 76 A. 2d 394; Commonwealth v. Dorazio, 365 Pa. 291, 74 A. 2d 125; Commonwealth v. Sterling, 314 Pa. 76, 170 A. 258; Commonwealth v. Lessner, 274 Pa. 108, 118 A. 24; Commonwealth v. Exler, 243 Pa. 155, 89 A. 968; Commonwealth v. Drum, 58 Pa. 9; 4 Blackstone, Commentaries 192-193; 40 C.J.S. §13 p. 857, §20 p. 866, §21 p. 868; Wharton, Homicide §2 p. 2, §92 p. 112 (3rd ed. 1907); Maurer, Pennsylvania Criminal Law: Murder §3582 p. 915 et seq., §3689 p. 953 et seq.; 1 Warren, Homicide §74 (Perm. ed. 1938); Clark & Marshall, Crimes §245 (4th ed. 1940). . . .
“. . . ‘This court said in Commonwealth v. Kelly, 333 Pa. 280, 287, 4 A. 2d 805, “To this Commonwealth one must answer as a malicious criminal for any fatal injury he here causes a human being by anything done by him intentionally or unintentionally during the commission or attempted commission of any of the specified felonies, for malice is the mainspring of his outlawed enterprise and his every act within the latter’s ambit is imputable to that base quality. Such a rule *538is essential to tlie protection of human life.” In that case we held, as we had previously in Commonwealth v. Lessner, 274 Pa. 108, 118 A. 24, that “when in the commission or attempted commission of a robbery there is ‘no break in the chain of events’ between the felony and the shooting which caused death, even though ‘the discharge [of the gun] was unintentionally caused [by the felon] while struggling with his victim, or with a third party, who came to the latter’s assistance,’ the defense of accidental killing is inadmissible and the homicide is, under the statute, ‘murder of the first degree.’
“ ‘The doctrine that when malice is the mainspring of a criminal act the actor will be held responsible for any consequence of his act though it was not the one intended was recognized centuries ago when it was held that, quoting from Blackstone, Book IV, page 1.599, section 201, “if one shoots at A and misses him, but kills B, this is murder, because of the previous felonious intent, which the law transfers from one to the other.” (Italics supplied.)’
“How far Pennsylvania has gone in holding that each of the jiersons who participated in a criminal act such as robbery is guilty for all the acts of his confederates in furtherance of the common design, is strikingly apjnirent from Commonwealth v. Doris, 287 Pa. 547, 135 A. 313. In that case one of the robbers killed a policeman during his escape or flight and (his killing occurred after the defendant, who was a co-robber, had been seized by and was in the custody of police officers; yet this Court sustained defendant’s conviction of murder in (he first degree with penalty of death.
“In Clark and Marshall on Crimes (4th Ed.) page 298, the law is thus stated: ‘§245. Homicide in the Commission of a Felony, (a) In General. — At common *539law, malice was implied as a matter of law in every case of homicide while engaged in the commission of some other felony, and such a killing was murder whether death was intended or not. The mere fact that the party was engaged in the commission of a felony was regarded as sufficient to apply the element of malice.
“ ‘On this principle, it was murder at common law unintentionally to kill another in committing, or attempting to commit, burglary, arson, rape, robbery, or larceny.
“ ‘The doctrine has repeatedly been recognized and applied in this country, and is to be regarded as still in force, except where it has been expressly abrogated by statute.’ . . .
“Commonwealth v. Almeida, 362 Pa., supra, is on its facts so analogous to the instant case and in principle so directly controlling that we shall quote from that exhaustive opinion at some length.”*
*540After quoting therefrom at great length, the Court said (page 519): “ ‘A knave who feloniously and maliciously starts “a chain reaction” of acts dangerous to human life must be held responsible for the natural fatal results of such acts. This is the doctrine enunciated by the textbook writers on criminal law, and which has been applied by the courts.7. . .
“We may thus summarize what has become the settled law of Pennsylvania: If a person with legal malice commits an act or sets off a chain of events from which, in the common experience of mankind, the death of another is a natural or reasonably foreseeable result, that person is guilty of murder, if death results from that act or from the events which it naturally produced. If the original malicious act was arson, rape, robbery, burglary or kidnapping, the original actor is guilty of murder in the first degree.77
If the people of Pennsylvania believed that Commonwealth v. Bolish, Commonwealth v. Almeida, Commonwealth v. Moyer and Byron, and Commonwealth v. Lowry, were wrongly decided or laid down a principle of law which unjustly protected law-abiding citizens and law-abiding communities, the Legislature could, and according to the majority view should, have passed an Act altering the law when it. met- subsequently to these decisions.
Commonwealth v. Moyer and Byron, Commonwealth v. Almeida, Commonwealth v. Lowry, and Commonwealth v. Bolish were followed by Commonwealth v. Thomas, 382 Pa. 639, 117 A. 2d 204, which once again based its affirmance of felony murder upon the basic *541principles laid down in the Moyer, Almeida, Bolish cases, from which it quoted at length. In the Thomas case Jackson and the defendant, Thomas, attempted to hold up and rob a grocery store. The owner shot and killed Jackson. This Court held that the defendant, under these facts, was guilty of murder in the first degree. Commonwealth v. Thomas, as the majority admit, is factually on all-fours with and unless overruled, directly and unquestionably rules and controls the Redline case and sustains Redline’s conviction of murder.
What was the basis, what were the reasons and principles for the Court’s decision holding Thomas to be guilty of murder? The Court, speaking through Mr. Justice Arnold, said, inter alia:
“In applying the felony-murder statute, we have held that the malice of the initial offense attaches to whatever else the criminal may do in connection therewith. ‘It makes no difference that [the defendant] . . . and the other conspirators could not know in advance the precise course of events that would follow when they attempted to complete their evil designs’: Commonwealth v. Guida, 341 Pa. 305, 310, 19 A. 2d 98.
“If the defendant sets in motion the physical power of another, he is liable for its result. ‘Acts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies them. . . . the law requires [men] at their peril to know the teachings of common experience, just as it requires them to know the law. . . . “the test of murder is the degree of danger to life attending the act under the known circumstances of the case” ’ . . .‘ “He whose act causes in any way, directly or indirectly the death of another, hills him, within the meaning of the law of felonious homicide. It is a *542rule both of' reason and the law that whenever one’s will contributes to impel a physical force, proceeding from whatever different sources, he is responsible for the result, the same as though his hand, unaided, had produced it . . ’ ‘There can be no doubt about the ‘justice” of holding that felon gunlty of murder in the first degree who engages in a robbery or burglary and thereby inevitably calls into action defensive forces against him, the activity of which forces result in the death of a human being’: Commonwealth v. Almeida, 362 Pa. 596, 605, 629, 68 A. 2d 595.
“As has been said many times, such a rule is equally consistent with reason and sound public policy, and is essential to the protection of human life. The felon’s robbery set in motion a chain of events which were or should have been within his contemplation when the motion was initiated. He therefore should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act.
“ ‘. . . Every robber or burglar knows when he attempts to commit his crime that he is inviting dangerous resistance . . . knows that a likely later act in the chain of events he inaugurates will be the use of deadly force against him on the part of the selected victim. For whatever results follow from that natural and legal use of retaliating force, the felon must be held responsible Commonwealth v. Moyer, 357 Pa. 181, 191, 53 A. 2d 736. (Italics supplied ).
“The driver of a get-away car is guilty of murder in the first degree where the killing was committed by his- accomplices in the course of robbery: Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d 733.
“In Commonwealth v. Doris, 287 Pa. 547, 135 A. 313, we sustained a conviction of a co-feloh for murder in the first degree, even though after the robbery was *543completed and the conspirators were trying to effect their escape, defendant’s accomplice shot and killed a police officer, at which time defendant was already in the custody of and restrained by police officers.
“In Commonwealth v. Moyer, supra, we held that it was immaterial whether the bullet hilling a third person (police officer) eame from the defendant’s pistol or that of the victim of the robbery.
“In Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464 (reversed on other grounds), we held a conviction of murder in the first degree to be proper even though defendant’s accomplice (in arson) actually set the fire which caused his own death. The defendant there contended that the accomplice’s act was an intervening and superseding force relieving the defendant of the killing. We there said: ‘Courts have a duty, especially in these days when crime has become so prevalent, to see that the lives, the property and the rights of law-abiding people are protected and consequently must delicately balance the scales of justice so that the rights of the public are protected equally with those of persons accused of crime. . . .
“So, too, in the instant case. That the victim, or any' third person such as an officer, would attempt to prevent the robbery or to prevent the escape of the felons, and would shoot and kill one of the’ felons wás ‘as readily foreseeable’ as the cases where an innocent bystander is killed, even unintentionally, by the defendant’s accomplice, or where the victim of the robbery is slain, or where a pursuing officer is killed. The killing of the co-felon is the natural foreseeable result of the initial act* The robbery was the proximate cause of the death. We can see no sound reason *544for distinction merely because the one hilled was a co-felon. It was a killing in the perpetration of a robbery which was ‘unquestionably contemplated and callously ignored by the defendant, who most certainly intended to commit a crime which he knew might well give rise to it’: Commonwealth v. Sterling, 314 Pa. 76, 80, 170 A. 258.”
Commonwealth v. Almeida, Commonwealth v. Moyer and Byron and all the other recent felony murder decisions of this Court were again approved and the basic and long established principles enunciated therein were reviewed and reaffirmed in a comprehensive concurring opinion of 14 pages. See Commonwealth v. Thomas, 382 Pa. 639, 645.
. Commonwealth v. Thomas, 382 Pa., supra, was handed down on September 26, 1955. The Legislature of Pennsylvania met from January 3, 1955 to May 22, 1956, and from January 1, 1957 to June 20, 1957. If the people of Pennsylvania believed that Commonwealth v. Thomas, Commonwealth v. Bolish, Commonwealth v. Almeida, Commonwealth v. Lowry and Commonwealth v. Moyer and Byron were unjust decisions or laid down principles which improperly or unfairly protected law-abiding citizens from murderers and other dangerous criminals the Legislature could, and, we repeat, under the majority’s view should have changed the law, but the Legislature made no change.
Refutation of Statements and Propositions in the Majority Opinion
It is an indisputable fact that until the cases of Commonwealth v. Bolish and Comnnonwealth v. Thomas the writer of the present majority opinion was the only Justice who dissented in or from any of the aforesaid' decisions- or - opinions of the Court. The' propositions óf law which are adopted by the present niájórity *545opinion have been continuously and vigorously advocated for the last ten years by convicted murderers and have been carefully considered, analyzed and rejected by this Court in their opinions and decisions commencing with Commonwealth v. Moyer and Byron and Commonwealth v. Almeida.
The specific reason or ground for the present majority opinion — a justifiable homicide — was vigorously urged but was completely and unequivocally rejected by this Court in Commonwealth v. Thomas. It was thus clearly expressed by the writer of the present majority opinion in his dissenting opinion in Commonwealth v. Thomas, 382 Pa., supra, where he said: “I am at a loss to understand how anyone can be found guilty of murder at common law . . . for a . . . justifiable homicide.” There are three convincing answers to this question. In the first place, going all the Avay back to Blackstone, Blackstone says: “If a man, however, does such an act of which the probable consequence may be, and eventually is, death; such killing may be murder, although no stroke be struck by himself and no killing be primarily intended.” IY Blackstone’s Commentaries, §197, page 1594.
The second convincing answer is that a homicide may be justifiable qua a policeman or one defending his life or home, and felonious qua another person, for, as even Blackstone points out, it is murder to wantonly kill a felon.
The third convincing answer is found in a score of cases hereinabove cited which hold that while an accidental or unintentional killing is excusable or justifiable and is not even a felony, an accidental or unintentional killing' which occurs in the perpetration of a robbery, burglary, arson, rape, or kidnapping, is murder. If the majority opinion is correct that a person cannot be guilty of murder in Pennsylvania, *546for a so-called justifiable homicide, how can anyone be guilty of murder, as all authorities from Blackstone’s day until today agree — and the majority opinion admits — they can, for an accidental or unintentional homicide? All authorities, including the majority opinion, agree that malice is the essential, indispensable ingredient, the hall-mark of murder and that without the doctrine of implied or transferred malice there could not be any felony murder. It is absolutely indisputable that during a robbery legal malice is present in all the robbers, irrespective of who fared the fatal shot or who was hilled! That is one of the crucial touchstones which the majority have completely overlooked and without which the majority cannot build its house. How then, we repeat, is it possible to draw a logical or realistic or sound or legal distinction — so far as the crime of murder is concerned — between an unintentional or accidental killing in the perpetration of a robbery and what the majority opinion calls a justifiable killing in the perpetration of a robbery since in each case every robber possessed malice during the robbery and the attempted escape!
The reason for the origin, development and application of the felony murder doctrine is the protection of society. Without the application of the felony murder doctrine or principle, an unintentional or accidental killing in a hold-up could not' amount, in Blackstone’s day or today, to murder. Yet (legal) malice is, we reiterate, obviously just as much present in the felons, in a so-called justifiable hilling which occurs in a robbery, as it is in an accidental or unintentional hilling which occurs in a robbery. Consequently, if the killing occurred in and as a natural result of the robbery, what does it matter who fired the fatal shot or who was killed? r
*547It is clear as crystal that Redline cannot be freed of murder merely by overruling the very recent case of Commonwealth v. Thomas, bad as that would be. Even more important it is an indisputable fact that Redline cannot be freed of murder by this Court unless (1) it specifically overrules Commonwealth v. Almeida, 362 Pa. and Commonwealth v. Moyer and Byron, 357 Pa. as well as Commonwealth v. Thomas, 382 Pa.* and also, according to Justice Musmanno and Justice Cohen, Commonwealth v. Bolish, 381 Pa. supra; and (2) it repudiates and rejects all the basic principles of felony murder which have existed for several centuries and have been constantly iterated and reiterated in the decisions of the Supreme Court of Pennsylvania and particularly in the recent cases of Commonwealth v. Almeida, Commonwealth v. Moyer and Byron, Commonwealth v. Lowry, Commonwealth v. Bolish and Commonwealth v. Thomas; and (3) it destroys one of the few remaining barriers which furnish some protection to law-abiding communities against murderers, as well as the deterrence of felonious crime by dangerous criminals. All of the aforesaid felony murder cases, particularly Commonwealth v. Thomas, Commonwealth v. Moyer and Byron and Commonwealth v. Almeida, *548the latter two of which have been cited and quoted with approval by this Court in recent cases, directly rule the Eedline murder; and it is impossible to avoid, evade or escape from the fundamental rationale and the basic reasons and the basie principles upon which those decisions were based and those convictions of murder sustained, without expressly overruling all those cases and repudiating and rejecting the basic reasons and principles enunciated therein.
Whether the present majority opinion is considered alone or in conjunction with Justice Cohen's concurring opinion, the conclusion is inescapable — they have succeeded in making a shambles of the law of felony murder in Pennsylvania.*
How many times do basic principles of law have to be reiterated in order to become the settled law of this Commonwealth? How many times do leading cases have to be cited with approval and approvingly quoted in extenso, in order to become the settled law of Pennsylvania?
It may be trite but it is indisputably true and it is certainly necessary to say that there must be some real stability in our Courts and their decisions, in order to enable businessmen to make contracts, to enable every citizen to know his rights, and every public official to know the powers and limitations of government, and finally, to enable society to protect itself against crime.** Sib Edwabd Coke, Lord Chief *549Justice of England, thus wisely erected in circa 1620 a beacon light which, until the last few years, has guided lawyers, Judges, businessmen and everyone alike: “The knowne certaintie of the law is the safetie of all”. That maxim or standard was inscribed on the walls of Law Schools; more important, it was imbedded for hundreds of years in the minds and thoughts of every (English and) American lawyer and, until recently, of every American Judge. The words of Owen J. Roberts, the learned and distinguished Justice of the Supreme Court of the United States, are particularly appropriate. In Smith v. Allwright, 321 U.S. 649, 669, he aptly said: “The instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket ‘good for this day and train only
Is this Court going to justly and adequately protect law-abiding communities as we have done for over 100 years; are we going to maintain principles and standards and decisions whose “knowne certaintie is the safetie of all”, or are we going to mark our decisions “good for this day and train only”?
Commonwealth v. Almeida, 362 Pa., supra, Commonwealth v. Bolish, 381 Pa., supra, and Commonwealth v. Thomas, 382 Pa., supra, would have to be overruled according to the concurring opinion of Justice Cohen in Commonwealth v. Redline; and Commonwealth v. Bolish and Commonwealth v. Thomas would have to be overruled according to Justice Musmanno’s dissenting opinion in Commonwealth v. Bolish, 391 Pa. 550, 138 A. 2d 447.
See cases infra.
Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464, tlie Court in a footnote said: “At common law there were 8 or 9 felonies, namely, murder, manslaughter, rape, sodomy, robbery, larceny, arson, burglary, and perhaps mayhem: Clark & Marshall, Crimes §3 (4th ed. 1940) ; 1 Wharton, Criminal Law §26 (12th ed. 1932).”
Cf. Commonwealth v. Drum, 58 Pa. 9; Commonwealth v. Bolish, 381 Pa. supra ; Commonwealth v. Thomas, 382 Pa. supra.
Section 919 of The Penal Code of 1939, P. L. 872, 18 PS §4919; Commonwealth v. Johnson, 368 Pa. 139, 81 A. 2d 569. The majority opinion commences its review of relevant authorities by stating: “The only constitutional power competent to define crimes. . . . is the legislature, and courts do well to leave the promulgation of police regulations to the people’s chosen legislátive representatives .... The definition of murder at English' common law . . . alone defines the crime in this State. . . . except for one spe-. cial and presently irrelevant mode of death-dealing by means of intentional train-wrecking, there is no statutory crime of murder in Pennsylvania.” Although not presently important, it seems to me that these statements are inconsistent, and that neither of them is accurate. It is true that murder has never been expressly defined by statute in Pennsylvania and it has been sometimes said that it is “common law murder”. But the latter statement is not accurate. Cf. Commonwealth v. Bolish, 381 Pa. 500, 509, 510, 113 A. 2d 464.
They were reiteratéd in another reéent decision of this-Court;
Justice Charles Alvin Jones was the lone diss,enter.
We believe that Justice Jones’ dissenting opinion in Commonwealth v. Almeida, is diametrically opposed to his present opinion and specifically recognizes that a felon can be found guilty of the murder of his accomplice even if the fatal shot was not fired by one of the felons, provided, as he stated in Almeida, “it can be factually found that the conduct of the defendant or Ms accomplices set in motion a chain of events among whose reason-son,ably foreseeable consequences was a killing stick as actually occurred.” In order to determine the accuracy of our interpretation of Justice Jones’ position in Almeida, we shall quote at length the pertinent parts of his dissenting opinion. He there said (page *528C43) : “Whether the acts of Almeida and his confederates were sufficient to constitute the proximate cause of the killing was a question of law but whether they did constitute the proximate cause was a question of fact for the jury. . . . The jury should have been instructed that, in order to find the defendant guilty of murder, it was not only necessary for them to find the killing to have been coincidental with the perpetration of a felony in which the defendant was at the time participating but that they would also have to find that the fatal shot was fired by one of the felons or, if not fired by one of them, that the conduct of the defendant or his accomplices set in motion a chain of events among whose reasonable foreseeable consequences iras a 1eilling such as actually occurred.”
Although the question is academic and immaterial, the Justices who composed that Court (and since then Justice Bell in his concurring opinion in Commonwealth v. Thomas, 382 Pa. 639, 117 A. 2d 204) specifically held that this was not dictum; moreover, it was not a new but a long established principle of criminal law. Blackstone said, §197, page 1594: “If a man, however, does such an act of which the probable consequence may be, and eventually is, death; such killing may be murder, although no stroke be struck by himself and no killing be primarily intended ...”
We note that the same basic philosophy was. expressed by Chief Justice von Mósohzisker in Commonwealth v. Parker, 294 *534Pa. 144, 154, 143 A. 904: “. . . we take judicial knowledge of. the fact that offenders of that designation [habitual criminals] have become so general that the law, not only lex seripta but non scripta, must advance to prótect society against them.”
When the writer of the present majority opinion says (as he also said in his dissenting opinion in Commonwealth v. Almeida, 362 Pa., supra) that certain propositions stated in the opinion of the Court in Commonwealth v. Moyer and Byron are dictum, it is to be recalled that the Court specifically held in Commonwealth v. Almeida that those propositions 'therein asserted were not dictum. When the writer of the present majority opinion states (as he also did in his dissenting opinion in Commonwealth v. Almeida) that his views are supported by Commonwealth v. Thompson, 321 Pa. 327, 184 A. 97, and Commonwealth v. Mellar, 294 Pa. 339, 144 A. 534, we cannot fail to note that this statement was rejected and refuted, and these cases were clearly distinguished by the Court in its learned exhaustive opinion in Commonwealth v. Almeida. When the writer of the present majority opinion cites 5 cases from other jurisdictions to support his views (as he also did in his dissenting opinion in Commonwealth v. Almeida), we cannot refrain from once again pointing out that those cases were considered and either distinguished or rejected by the Court in Commonwealth v. Almeida. Furthermore, the decisions of this *540Court which cited cases from other States, as well as text authorities to support their opinions, are so recent that it is unnecessary to again cite or analyze them. See particularly Commonwealth v. Almeida and the concurring opinion in Commonwealth v. Thomas, 382 Pa., supra.
Realistically, it is just as if defendant’s bullet had ricocheted off the wall and killed his co-felón. . . ......
From the majority opinion in the present case and from the dissenting opinion of Justice Musmanno tiled this day in Commonwealth v. Bolish, we learn for the first time that an Assistant District Attorney had nolle prossed the murder indictment in Commonwealth v. Thomas. We do not have before us the record in the second Thomas case, and therefore do not know whether new facts and circumstances justified ihe actions of the officer who is supposed to protect the public and to obey the mandates of the Supreme Court of Pennsylvania. However, if the Assistant District Attorney caused the murder indictment against Thomas to be nolle prossed in intentional defiance of the the opinion of the Supreme Court of Pennsylvania in Commonwealth v. Thomas, 382 Pa., he should have been held “in contempt” and severely punished.
In the majority opinion, Commonwealth v. Almeida, like Mohammed’s coffin, is suspended between Heaven and earth. However, unlike Mohammed’s coffin, which is headed upward toward Heaven, the coffin containing Commonwealth v. Almeida is pointed downward in preparation for a speedy flight into the bowels of the earth.
A couple of centuries ago the punishment inflicted upon a person convicted of a minor offense was so terrible (often death) *549that Courts leaned over backwards to devise protection for him. Today the pendulum has swung far in the other direction so that it is society, and not the criminal, which is sorely in need of protection by the Courts. In spite of this the highest Courts in the land are constantly weakening or eliminating the few safeguards which remain to protect law-abiding communities against dangerous criminals.