dissenting, joined by MACK and FERREN, Associate Judges:
From the creation of the judicial system of the District of Columbia in 18011 until the decision of this case and its companion case, Byrd v. United States, 510 A.2d 1035 (D.C.1986) — which were heard by the en banc court on the same day — no court in the District of Columbia has ever adopted the legal fictions of “felony murder malice” or “transferred malice” in the law of murder. A majority of this court has now done so. They have done so, in my judgment, without analysis or reasoning. The majority cites to no legal authority in this jurisdiction or elsewhere.2 They cite no commentary or scholarly work. The majority merely pronounces an ipsi dixit. From this unprincipled and erroneous holding, I dissent.
I
Our first degree murder statute, D.C. Code § 22-2401 (1981) provides:
Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, or without purpose so to do kills another in perpetrating or in attempting to perpetrate any arson, as defined in § 22-401 or 22-402, rape, mayhem, robbery, or kidnapping, or in perpetrating or *659attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, is guilty of murder in the first degree.
As is apparent, the statute defines two types of felony murder: (1) purposely killing another while perpetrating or attempting to perpetrate any felony, and (2) without purpose to do so, killing any person while perpetrating or attempting to perpetrate arson, rape, mayhem, robbery or kidnapping, or an armed housebreaking. It is the latter type of felony murder, a non-purposeful killing, with which we deal in this case. It is on this context that our analysis must focus and to which I now turn.
II
Rule 31(c) of the Superior Court Rules of Criminal Procedure provides, in relevant part, that the “defendant may be found guilty of an offense necessarily included in the offense charged.” Under this rule and the doctrine of lesser included offenses adopted by this court, either side may have the jury instructed on a lesser included offense if “the lesser offense which was not charged ‘consists] entirely of some but not all of the elements of the greater offense’ which was charged.” Hawkins v. United States, 399 A.2d 1306, 1307 (D.C.1979) (quoting Pendergrast v. United States, 332 A.2d 919, 924 (D.C.1975)). See Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965). The standard is applied by ascertaining whether all the elements of the lesser offense are contained in the greater. Kelly v. United States, 125 U.S. App. D.C. 205, 206, 370 F.2d 227, 228 (1966), cert. denied, 388 U.S. 913, 87 S.Ct. 2127, 18 L.Ed.2d 1355 (1967).
In considering whether second degree murder is a lesser included offense of first degree felony murder according to this standard, we must start with the statutory definitions of these two crimes. D.C. Code § 22-2403 (1981) defines second degree murder as a killing committed with “malice aforethought.” Although this court has not set out a systematic explanation of the malice required for second degree murder, juries in the jurisdiction are commonly instructed on the malice element of this offense as follows:
“Malice” does not necessarily imply ill-will, spite, hatred, or hostility by the defendant toward the person killed. “Malice” is a state of mind showing a heart regardless of the life and safety of others. It may also be defined as the condition of mind which prompts a person to do willfully, that is, on purpose, without adequate provocation, justification or excuse, a wrongful act whose foreseeable consequence is death or serious bodily injury to another.
Criminal Jury Instructions for the District of Columbia, No. 4.23 (3d ed. 1978). In other words, the states of mind required for a finding of malice are: (1) an intent to act in callous disregard for the life and safety of others, or (2) an intent to cause death or serious bodily injury. See Powell v. United States, 485 A.2d 596, 603 (D.C.1984) (Rogers, J., dissenting), cert. denied, — U.S.-, 106 S.Ct. 420, 88 L.Ed.2d 339 (1985). By contrast, as it concerns us here, felony murder is defined as a killing committed “without purpose so to do” while perpetrating or attempting to perpetrate any of six enumerated felonies. D.C. Code § 22-2401 (1981).
It is apparent from these definitions that second degree murder requires proof of a mental state element which is irrelevant to felony murder; one may be convicted of the latter even if the killing was entirely unintentional, if it was committed during the course of an enumerated felony. Applying traditional lesser offense analysis to the terms of the statutes, then, second degree murder is not a lesser included offense of felony murder, but a distinct crime. See generally Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Ball v. United States, 429 A.2d 1353, 1361 (D.C.1981) (test of whether there are two offenses or only one is whether each crime requires proof of a fact that the other does not).3
*660The United States, by attributing to felony murder an element of intent described as “felony murder malice”, contends that all the elements of second degree murder are contained in felony murder, and that, therefore, the former is a lesser included offense of the latter according to traditional analysis. Felony murder malice, the argument goes, was one of the four types of the “malice aforethought” common to all murder under the common law, the other three types being intent to kill, intent to cause serious bodily injury, and wanton disregard for the lives of others. When the criminal law was codified in the District, two categories of malice were raised to first degree status: felony murder in the course of any of six enumerated felonies, and premeditated intent to kill. Thus, the argument continues, all of the present statutory forms of murder, first degree premeditated, first degree felony murder, and second degree murder, require proof of a malice element derived from the common law. It is merely the particular “manifestation” or “category” of malice which varies from one offense to the other. In the case of felony murder, the malice element is established by proof of the commission of the felony.4
The majority, citing dicta in the opinion of a division of this court in Byrd v. United States, supra note 2, 500 A.2d at 1386, agrees with appellee’s reasoning. Maj.Op. at 658. I find this variation on the transferred intent theme to be unconvincing. At bottom, it imputes an element of intent to felony murder, where there is none. Whether felony murder was once included under the common law label “malice aforethought” is not, to my mind, a determinative consideration. While it is true that “[i]n the absence of a statutory definition of the elements of a crime, the common law definition is controlling,” Perkins v. United States, 446 A.2d 19, 23 (D.C.1982), we have here a statutory definition of first degree felony murder whose use of the language “without purpose so to do” directly contradicts the imputation of any form of intent. The fact is that a jury in a second degree murder trial must find such intent to have been present during the killing; in a felony murder trial, it need not. The government’s contention that, under traditional lesser offense doctrine, felony murder contains all of the elements of second degree murder is refuted by reason, as well as by prior pronouncements of courts in this jurisdiction recognizing the two offenses as having distinct elements. See supra note 3.
Ill
The majority relies on still another device to justify second degree murder as a lesser included offense of felony murder. It appears to adopt the common law doctrine of transferred intent, a legal fiction whereby the intent to commit the underlying felony is transferred to the killing accompanying the felony to make it a killing committed with malice.
Until now, this common law doctrine has never been adopted in this jurisdiction, as the division which first heard the present appeal recognized. Towles, supra note 3, *661496 A.2d at 563 n. 6. See also Fuller, supra note 3, 132 U.S.App.D.C. at 294, 407 F.2d at 1229. I am uncertain as to what extent the majority purports to adopt the doctrine now. The majority rather timidly proposes that transferred intent is not “farfetched or a ‘strained legal fiction’ in cases like the instant one, where a person engaged in a robbery attempt uses a deadly weapon to accomplish his objective.” Maj. Op. at 657. Does this mean that intent will be imputed only to killings done in the course of felonies committed with a deadly weapon? If so, how can we justify singling out this category of felony murders for special transferred-intent treatment? Short of adopting the common law presumption of intent in all felony murder cases, neither this court nor the trial court is entitled to decide as a matter of law, in some felony murder cases but not in others, what is essentially a factual issue to be charged by the grand jury in the indictment and decided by the petit jury at trial: whether the defendant intended to kill the victim of the felony.
Assuming for the sake of argument that the transferred intent doctrine is “not farfetched ... in cases like the instant one,” what would the majority do with other cases where its application is far-fetched? 5 Again, are we to say that the doctrine of transferred intent will apply in some cases of felony murder but not in others, depending upon how far-fetched its application would be?
In this as in all areas of the law, the legal principles supporting our decisions must be reasoned and consistent. This court must either accept the common law doctrine of transferred intent, applying it in all felony murder cases, or reject it entirely. If it is rejected, the rule allowing instruction in second degree murder as a lesser included offense of felony murder is left with no foundation in legal reason. If it is adopted, we must be prepared to accept a legal fiction which is, at best, not far-fetched in the view of some judges in some cases, as the sole rationale for a practice which, without such justification, would have to be considered an infringement on the constitutional rights of a criminal defendant. I do not accord such little weight to those rights.
IV
Both appellee and amicus Rauh, perhaps cognizant of the conceptual difficulties in considering second degree murder a lesser included offense of felony murder under traditional lesser offense analysis, endorse the less stringent standard set forth in United States v. Whitaker, supra note 3.6 Supplemental Brief For Appellee at 16-19; Brief For Amicus Curiae Rauh at 15-17. The majority, though declining to expressly adopt the Whitaker formula, chooses to consider it as a factor, and finds that the two offenses are “inherently related in the Whitaker sense.” Maj.Op. at 658.
Putting aside the question of whether second degree murder and felony murder do meet the Whitaker “inherent relationship” standard,7 appellee and the majority are mistaken in applying this formula to the facts of the present case.
*662In Whitaker, defendant, indicted for first degree burglary, was denied a request to instruct the jury on unlawful entry as a lesser included offense. The circuit court held that although the element of trespass in the lesser offense of unlawful entry was, in rare circumstances, not required for a showing of the greater offense of burglary, the instruction should have been permitted: “defendant is entitled to invoke Rule 31(c) when a lesser offense is established by the evidence adduced at trial in proof of the greater offense, with the caveat that there must also be an ‘inherent’ relationship between the greater and lesser offenses.” Id. at 349, 447 F.2d at 319 (emphasis added). The word “defendant” is to be stressed. The Whitaker court took pains to emphasize that its analysis did not apply to 'prosecution requests for lesser offense instructions, pains which were apparently wasted on appellee and amicus Rauh. In the second half of its opinion, the court stressed that, in addition to analysis of the congruity of elements, “[t]here is another strand of traditional doctrine present in lesser included offense law, of common law and constitutional origin, that the nature of the charge in the indictment must be such as to give the defendant notice that he could at the same time face the lesser included offense charge.” Id. at 350, 447 F.2d at 320. The court then went on to abandon the traditional rule of mutuality, by which the right of the defense to a lesser-included offense instruction could not exceed that of the prosecution, reasoning that “[t]he defense ought not to be restricted by the stringent constitutional limits upon the prosecutor’s right.” Id. at 351, 447 F.2d at 321. Whitaker thus left untouched the constitutional notice restrictions on prosecution-requested instructions, applying its new “inherent relationship” analysis only to instructions requested by the defense.
This court has never applied the Whitaker “inherent relationship” formula to lesser offense instructions requested by the prosecution; in fact, we have specifically declined to do so. In In re W.B.W, 397 A.2d 143 (D.C.1979), the District of Columbia advanced the “inherent relationship” formula to support a conviction of malicious burning as a lesser-included offense of the charged offense of arson, even though the elements of the former were not strictly included in the latter. This court rejected the formula:
[T]he government has failed to carry its analysis of Whitaker far enough, for the Whitaker court went beyond the statement quoted above [setting out the inherent relationship standard] and established a further requirement of notice when applying this “novel” approach.... Thus the prosecutor’s right to invoke the lesser-included offense doctrine ... is limited to the offense of which defendant has been given notice by the indictment. ...
Id. at 148 (citations omitted). The arguments of appellee and amicus Rauh are substantially similar to those advanced by the government in W.B.W., and, in my view, must be rejected here as they were there. Whitaker has no bearing on lesser included offense instructions requested by the prosecution, except in its reiteration of the constitutional limitations which restrict them.
V
Once the Whitaker analysis is rejected, as it must be, the “special” lesser-included offense rule is left standing on, at most, the flimsy foundation of transferred intent, a legal fiction which has never been adopted in this jurisdiction. The inherent weakness in the logical and legal foundations of this rule8 is apparent in Fuller v. United States, supra note 3, the case which has been cited as controlling authori*663ty supporting it. See Towles, supra note 3, 496 A.2d at 563-64; Whalen v. United States, 379 A.2d 1152, 1158 (D.C.1977), rev’d on other grounds, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Declining to rule on the applicability of the transferred intent doctrine in the District, the Fuller court could offer as its only justification for the rule the fact that the practice had been permitted for a long time in the District; therefore, defense counsel in a felony murder trial would be on notice that a second degree murder instruction would be allowed the prosecution even though not charged in the indictment. 132 U.S. App.D.C. at 294-95, 407 F.2d at 1229-30. See also Jackson v. United States, 114 U.S.App.D.C. 181, 183, 313 F.2d 572, 574 (1962). I submit that a practice which finds as its only justification the fact that it has always been done, has no justification at all.
The practice must be reexamined in the light shed by the fifth and sixth amendments. The fifth amendment provides that “Mo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” U.S. Const, amend. V. The sixth amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.” U.S. Const, amend. VI. The purpose of the requirement that a person be indicted by a grand jury is to “limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.” Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960). The indictment must contain the elements of the offense charged so as to apprise the defendant of what he must be prepared to meet. Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962). A jury may not be instructed on an offense involving elements not charged in the indictment; to do so would be
[t]o allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment [and] would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.
Id. at 770.
The majority finds these constitutional principles inapplicable to the present case. Maj.Op. at 657. I find them determinative. If the government had intended to seek a conviction for second degree murder in addition to first degree felony murder, it could simply have shown the grand jury evidence to obtain a second degree murder indictment as well. It did not do so. The trial court, relying on a rule which permits courts to read felony murder indictments as if they alleged an element which they do not, permitted an instruction on an offense which exceeded the scope of the indictment. In my view, this rule is contrary to lesser included offense law and unsupported in logic; its application is violative of defendant’s constitutional rights. I would reverse the trial court’s order denying appellant’s motion to set aside his conviction of second degree murder.
. Act of Feb. 27, 1801, ch. 15, 2 Stat. 103.
. Although the majority cites the division opinion in Byrd v. United States, 500 A.2d 1376, 1386 (D.C.1985), which the en banc court adopted, see Byrd v. United States, supra, 510 A.2d at 1037, the only case or authority cited in either Byrd opinion on this issue is a cf. cite. That citation reads in full:
Cf. Thorne v. United States, 471 A.2d 247, 248 (D.C.1983) (in burglary prosecution, proof that appellant harbored not only intent to assault but also intent to destroy property did not constitute proof of an additional fact for merger analysis; one of two convictions for burglary based on single act of entry ordered vacated).
Byrd v. United States, supra, 500 A.2d at 1386.
. Both the federal circuit court in Fuller v. United States and the division of this court which *660first heard the instant appeal recognized that, shorn of the legal fiction of transferred intent, the two crimes were distinct offenses. Fuller v. United States, 132 U.S.App.D.C. 264, 293, 407 F.2d 1199, 1228 (1968) (en banc), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969); Towles v. United States, 496 A.2d 560, 563 n. 6 (D.C.), vacated, 497 A.2d 793, cert. dismissed, — U.S. -, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985). See also United States v. Whitaker, 144 U.S.App.D.C. 344, 348 n. 11, 447 F.2d 314, 318 n. 11 (1971).
. Correlatively, appellee argues that in 1940 when Congress raised to first degree status killings done in the course of six enumerated felonies, it left a residual category of second degree felony murder, consisting of non-purposeful killings committed in the course of a non-enumerated felony. Thus, asserts the government, there exists a category of second degree murder malice, which, like first degree "felony murder malice,” does not require a charge or proof of any intent element. The government fails to cite any case in this jurisdiction indicating the existence of some “residual” second degree felony murder, nor am I aware of any. None of the cases in this jurisdiction which have allowed second degree murder to stand as a lesser included offense of felony murder have done so on the basis that the jury could have found the killing to have been committed during an unen-umerated felony.
. Judge Ferren, concurring in the majority opinion of the division which originally heard this appeal, notes, for example, the hypothetical case of a cashier dying 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." Towles, supra note 3, 496 A.2d at 566 n. 1 (Ferren, J., concurring).
. Whitaker is not binding precedent in this jurisdiction, since it was decided subsequent to the effective date of court reorganization. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971).
.According to Whitaker, to be inherently related, the greater and lesser offenses "must relate to the protection of the same interests, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense." 144 U.S.App.D.C. at 349, 447 F.2d at 319. Even if this standard were applicable to the present case, I have serious doubts as to whether the two offenses at issue here would meet it, since the proof of intent required for a showing of second degree murder is not, even in the general run of these cases, "necessarily" presented as part of the showing of felony murder.
. Amicus Public Defender Service suggests that the rule may merely be the result of a historical anomaly in the codification of the murder statute in the District. Prior to the 1940 amendment of the statute, conviction for first degree felony murder required proof of both the commission of the felony and intent to kill. Thus, second degree murder was legitimately a lesser-included offense of felony murder. Since the 1940 amendment, however, first degree felony murder has not required an allegation or proof of intent to kill, but the practice of instructing on second degree murder as a lesser included offense seems to have survived.