concurring:
I join in the court’s opinion because I agree that controlling precedent makes second degree murder a lesser included offense of felony murder. See ante at 563 n. 6. On that premise, the court is correct: “If the jury which found appellant guilty of felony murder [at the first trial] had also announced a guilty verdict on the second-degree charge, such verdict would have been deemed a nullity under the doctrine of merger.” Ante at 564. Similarly, “no legal significance can be attached to the first jury’s verdict of ‘not guilty’ on the second-degree count,” ante at 564, since guilt of that lesser included offense necessarily was established by the felony murder conviction.
I have substantial doubt, however, that second degree murder is a lesser included offense of felony murder.1 In the present case, the indictment properly charged, and the first jury properly considered, separate counts of felony murder and second degree murder. “The offenses are distinct in the sense that they have different elements.” Fuller v. United States, 132 U.S.App.D.C. 264, 289, 407 F.2d 1199, 1224 (1968) (en banc) (footnote omitted), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969). The first only “requires that the killing occur in the course of certain enumerated felonies.” Id.; see D.C.Code § 22-2401 (1981); supra note 1. The second requires “malice aforethought.” D.C. Code § 22-2403 (1981); Fuller, 132 U.S. App.D.C. at 293, 407 F.2d at 1228. The only basis for characterizing second degree murder as a lesser included offense of felony murder, therefore, is the common law “theory of transferred intent”; i.e., the intent to commit the felony is “transferred to the killing accompanying the felony to make it a killing done with ‘malice.’ ” Ante at 563 n. 6. Otherwise, the felony murder would lack an element present in second degree murder, with the result that the latter could not be entirely included within the former. See Pendergrast v. United States, 332 A.2d 919, 924 (D.C.1975).
In sum, without the use of transferred intent to create a lesser included offense, an accused could be convicted of both felony murder and second degree murder, although one conviction would have to be vacated as a matter of statutory policy, not merger, since there was only one killing. See Naples v. United States, 120 U.S.App.D.C. 123, 131-32, 344 F.2d 508, 516-17 (1964). Similarly, absent the use of transferred intent, if one were indicted separately for felony murder and second degree murder (as in this case), and convicted of the former but acquitted of the latter, the jury necessarily would, and properly could, have found an absence of malice — a result that could not be deemed a nullity for double jeopardy purposes.
It seems to me, therefore, that upon retrial of a felony murder charge when the first jury has acquitted of second degree murder, the second jury can properly consider a second degree murder charge only if there, is a clearly articulated and justified rule of law either (1) that second degree murder is a lesser included offense of a felony murder by use of transferred intent, or (2) that the kind of malice inherent in second degree murder as a lesser included offense of felony murder is substantively different from the malice necessarily proved when second degree murder, as such, is charged. In the first instance, the first jury’s acquittal of second degree murder would be a nullity; in the second instance, it would be irrelevant.
*567I am dubious about the use of transferred intent, see supra note 1, and I believe the second alternative has no statutory basis. Given the purposes underlying the double jeopardy clause, see Douglas v. United States, 488 A.2d 121, 130-31 (D.C.1985), I have doubts that the state — in retrying a felony murder case after reversal and remand — can properly retry the accused for second degree murder as well when the jury has already acquitted on that charge at the earlier trial. See Turner v. United States, 459 A.2d 1054 (D.C.1983), aff'd on rehearing, 474 A.2d 1293 (D.C.1984). The only arguable basis for doing so is a strained legal fiction (transferred intent) deeming second degree murder a lesser included offense of felony murder, thus making the first jury’s acquittal a nullity.
. One can be convicted of felony murder even when there is not an intentional killing, e.g., when a cashier dies of a heart attack during the course of an armed robbery. It strains the imagination to find an intentional homicide— second degree murder — as a lesser included offense of felony murder under such circumstances.