*238Dissenting Opinion by
Mr. Chief Justice Bell:This is the age of Crime and Criminals, and the peace-loving citizen is the forgotten man. Mnrder, robbery and rape are rampant, and this tidal wave of ruthless crime, violence and widespread lawlessness* which too often goes unpunished is due in considerable part to recent pro-criminal decisions of the highest Courts in our State and Country. No matter how guilty a convicted criminal undoubtedly is, no matter how terrible his crime was, or how many crimes he has previously committed, the highest Courts of our Country (1) have in recent years extended and continue to expand the so-called rights of criminals, and (2) are completely oblivious of the rights, the security, the safety and the welfare of the law-abiding public. Even worse, if possible, is the fact that the highest Federal and State Courts are frequently making retroactive their newly created and expanded rights of guilty criminals, with the result that dangerous criminals who have been in jail for a dozen or a score or more of years are released or granted new trials which, in practical effect (because of the length of time and the inability to find trial witnesses, or their faded recollections), is the equivalent of release. Judges too often forget that Justice is not a one-way street—one way for the criminal only—Justice is a two-way street where the rights and protection of the law-abiding people should be at least equal to those of the criminal.
This alarming crime wave which is inundating our Nation and in our large cities terrifying our people, *239can only be halted or curtailed by speedier Court trials and by swifter and more commensurate punishment of every man, woman and juvenile who breaks, or aids another in breaking, the law. In this era of turmoil, rioting, violence and widespread ruthless crime, which has become a daily occurrence in our Cities, States and Nation, a commensurate sentence means a severe sentence which will not only fit the particular crime and the particular criminal, but will act as a powerful deterrent to “prospective” criminals and to “repeating” criminals.
The Majority’s Holding
In a pro-criminal Opinion which is so disastrous to the safety and protection of Society, this Court has drastically changed and made a shambles of the felony-murder doctrine. For the second time the Court has repudiated our previously well-settled felony-murder law and the basic reasons and the fundamental principles upon which this Court’s prior felony-murder decisions were predicated; and they have overruled, without the slightest legal or moral justification, many recent decisions of this Court which were rendered at a time when the Supreme Court of Pennsylvania was considered to be one of the two or three best Courts in our Country.
The Majority specifically hold that if a killing occurs during the commission or attempted perpetration of a robbery or other major felony, or during the attempted escape of one of the robbers or any of the dangerous cofelons, none of the robbers and none of the cofelons is guilty of murder—if the fatal shot was fired by the holdup victim or by a policeman or other law enforcement officer, or by a person attempting to prevent the robbery or the robber’s (or felon’s) escape, or by anyone except one of the robbers or a cofelon. This *240decision, which is so disastrous to Society, is reached by unrealistic, and at times far-fetched reasoning, which together with its predecessor, Commonwealth v. Redime, 391 Pa. 486, 137 A. 2d 472, which it expands, will produce the most harmful damage to law-abiding citizens ever inflicted sua sponte* by the Supreme Court of Pennsylvania.
Worse still, the Majority make their decision in this case retroactive and apply it to a criminal who was justly convicted of murder twenty-three years ago.
The Prior Law and Its Rationale
For ages, it has been the well-settled and wisely-established law that when a person intentionally commits or joins or conspires with another to commit a felonious act, or sets or joins another in setting in motion a chain of circumstances the natural and probable or reasonably foreseeable result of which will be death or serious bodily harm to some person, he and his cofelons are guilty of the crime which was a product or result of the aforesaid criminal act or chain of circumstances. If the felon or cofelons possessed legal malice,** and death resulted, all the felons who participated in the felonious act or in the aforesaid chain of circumstances would be guilty of murder.
In the leading cases of Commonwealth v. Moyer and Commonwealth v. Byron, 357 Pa. 181, 53 A. 2d 736, the Court unanimously held that every person who committed or attempted to commit a felony such as robbery, or feloniously'participated therein, was guilty of *241murder in the first degree, even though the fatal bullet was fired by the intended victim in repelling the robbery. Chief Justice Maxey, speaking for a unanimous Court, relevantly and wisely said (pages 190-191) :
“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 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 results 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. . . . 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 *242Earl Shank, the proprietor of a gas station in Ridley 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.”
In Commonwealth v. Almeida, 362 Pa. 596, 68 A. 2d 595, the Court (with one concurring Opinion and one dissent) once again reiterated the application of the felony-murder rule in a case where an off-duty patrolman was killed by a bystander in a gun battle with the robbers, and every robber was held to be guilty of murder even though the fatal shot was fired by a bystander. The Court, in an Opinion by Chief Justice Maxey, said (pages 601, 602, 603, 604, 605) :
“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 doer of all that follows—if that unlawful act *243be robbery, and if tbe 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. ... ‘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 aggressions 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. 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. . . .’
“. . . This Court in Commonwealth v. Doris, 287 Pa. 547, 135 A. 313, held that a conviction of murder of the first degree was proper, although it appeared that, after a robbery had been completed and the conspirators were trying to effect their escape, an accomplice of the defendant shot and killed the deceased.
“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
*244wit, 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 cases 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-Byron cases this Court after a thorough discussion 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 was not dictum but authority. ‘Whenever á 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 P. 330, 332, 86 C.C.A. 502, 16 L.R.A., N.S., 1103. See also Schuetz’s Estate, 315 Pa. 105, 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 whose 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 cimlly responsible for that death and must answer in damages for it. Wharton on Homicide, Third Edition, p. 30, says under the heading of ‘Causal Connections’ that: ‘. . . one whose wrongful act hastens or accelerates the death of another, or contributes to its cause, is guilty of homicide, though other causes co-operate. . . .’
“Justice Holmes in his book on ‘The Common Law,’ (36th Ed.) pp. 56 and 57, [appropriately] said: Acts *245should 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.’ ”*
In Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d 733, we held that the driver of the alleged get-away car was guilty of first-degree murder, and in an unanimous Opinion said (pages 599-600) : “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. Bobb, 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.
“In Com. v. Bobb, 284 Pa. 99, 130 A. 302, the defendant was indicted and convicted of murder. He was a lookout and had nothing to do with the burglary or the murder. The Court said: ‘If defendants “combine to commit a felony or make an assault, and, in carrying out the common purpose, another is killed, the one who enters into the combination but does not personally commit the wrongful act is equally responsible for the homicide with the one who directly causes it” : Com. v. Micuso, 273 Pa. 474, 478. “It is not necessary, however, to prove that the party actually aided *246in the commission of the offense; if he watched for his companions, in order to prevent surprise, or remained at a convenient distance in order to favor their escape, if necessary, or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law he was aiding and abetting”: Weston v. Com., 111 Pa. 251, 263; Com. v. Biddle, [200 Pa. 640].’”
In Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464, this Court said (page 520) : “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.”
In Commonwealth v. Thomas, 382 Pa. 639, 117 A. 2d 204, the Court held that when one of two robbers running from a store which they had just robbed is killed by the hold-up victim, both robbers are guilty of murder in the first degree. In this case, the Court reaffirmed Commonwealth v. Almeida, 362 Pa., supra; Commonwealth v. Moyer, 357 Pa., supra; Commonwealth v. Lowry, 374 Pa., supra; Commonwealth v. Bolish, 381 Pa., supra; Commonwealth v. Doris, 287 Pa. 547, 135 Atl. 313; Commonwealth v. Cuida, 341 Pa. 305, 19 A. 2d 98; and Commonwealth v. Sterling, 314 Pa. 76, 170 Atl. 258. The Court quoted at some length from several of the above-mentioned cases, and pertinently said (page 642):
“If the defendant sets in motion the physical power of another, he is liable for its result. ‘Acts should be *247judged by their tendency under the known circumstances, not by tbe 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, kills him, within the meaning of the law of felonious homicide. It is a rule both of reason and the law that whenever one’s will contributes to impel a physical force, whether another’s, his own, or a combined 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 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’: »*
The Court further said (pages 644-645) : “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 was ‘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 for distinction merely because the one killed was a co-felon. It was a killing in the perpetration of a robbery which was ‘unquestionably contemplated and *248callously ignored by tbe 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.”
Mr. Justice Cardozo, in “The Nature of the Judicial Process,” pages 66 and 67, wisely said: “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 distance . . . The final cause of law is the welfare of society . . .”
Blackstone, IY Blackstone Commentaries, 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: ...”
All of the aforesaid cases were actually or in practical effect overruled when there was a change of personnel in the Supreme Court of Pennsylvania, at which time they ignored all the reasoning and the principles and the prior decisions of this Court and changed the law in and by Commonwealth v. Redline, 391 Pa. 486, 137 A. 2d 472. I believe that this was the most unrealistic, the most unwise, and the most damaging blow to the protection and safety of Society ever heretofore delivered by the Supreme Court of Pennsylvania.
For all of the reasons hereinabove mentioned, I very vigorously dissent.
The decision of the Majority giving Smith a new trial—Smith never took any kind of appeal or any post-conviction petition until the present appeal—is inexcusably unfair and unjust to Almeida and Hough, whose repeated petitions for a new trial and their appeals from the judgment of sentence of murder were rejected and dismissed by this Court, and also by Federal Courts. See Commonwealth ex rel. Hough v. Ma*249roney, 425 Pa. 411, 229 A. 2d 913; Commonwealth ex rel. Almeida v. Bundle, 409 Pa. 460, 187 A. 2d 266, cert. den. 374 U.S. 815; Commonwealth ex rel. Hough v. Maroney, 402 Pa. 371, 167 A. 2d 303, cert. den. 366 U.S. 971; Commonwealth ex rel. Almeida v. Baldi, 361 Misc. Docket No. 9 (1950), cert. den. 340 U.S. 867; Commonwealth v. Almeida, 362 Pa. 596, 68 A. 2d 595; Commonwealth v. Hough, 358 Pa. 247, 56 A. 2d 84; United States ex rel. Hough v. Maroney, 247 F. Supp. 767 (W.D. Pa.); United States ex rel. Almeida v. Baldi, 104 F. Supp. 321 (E.D. Pa.), aff’d 195 F. 2d 815, cert. den. 345 U.S. 904, rehearing den. 345 U.S. 946.
It has often been said that “Justice is blind,” meaning thereby that Justice is absolutely fair to everyone, and is not subject to any outside or improper influence whatsoever. In this case, Justice is certainly blind, but it is a new and different social and legal blindness; and what it erroneously terms “Justice” is “gross injustice,” primarily to Society and, secondarily, to Smith’s co-felons, Almeida and Hough.
So widespread has lawlessness become that gangs terrorize with impunity parts of large cities, and rioting, vandalism, forcible seizure of buildings and college campuses and even seizure and desecration of churches, too often go unpunished, due to the timidity of public officials or heads of seized or vandalized properties, or the mollycoddling attitude and the ultra-lenient sentences of many lower Court Judges.
Not required by a decision of tbe Supreme Court of tbe United States.-
Legal malice is defined in Commonwealth v. Chermansky, 430 Pa. 170, 242 A. 2d 237; Commonwealth v. Lawrence, 428 Pa. 188, 236 A. 2d 768; Commonwealth v. Carroll, 412 Pa. 525, 194 A. 2d 911; Commonwealth v. Gooslin, 410 Pa. 285, 189 A. 2d 157.
Italics throughout ours, unless otherwise indicated.
Italics in Commonwealth v. Almeida Opinion.
Italics in Commonwealth v. Thomas Opinion.