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September 26, 1955


Appeal, No. 157, Jan. T., 1955, from judgment of Court of Oyer and Terminer of Philadelphia County, Apr. T., 1954, No. 1487, in case of Commonwealth of Pennsylvania v. Henry Thomas, Jr. Judgment reversed.


Victor Wright, Assistant District Attorney, with him Samuel Dash, First Assistant District Attorney, and Richardson Dilworth, District Attorney, for appellant.

Garfield W. Levy, with him Donald J. Goldberg and Harry M. Berkowitz, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 382 Pa. Page 640]


The Commonwealth appeals from the judgment of the court below sustaining the defendant's demurrer to the Commonwealth's evidence in the trial of defendant upon an indictment for murder.

For the purposes of this appeal, the following are the pertinent agreed facts: Defendant and Henry

[ 382 Pa. Page 641]

Jackson, Jr., the deceased, entered the grocery store of one Cecchini and ordered him to open the cash drawer. Jackson was armed with a revolver which he displayed to Cecchini. The defendant removed the money, and he and Jackson ran from the store, - Jackson running one way and defendant the other. Cecchini secured his own pistol and chased Jackson. In the exchange of shots Cecchini killed Jackson. Defendant escaped, but was later apprehended.

The sole question is whether defendant can be convicted of murder under this state of facts. That is, can a co-felon be found guilty of murder where the victim of an armed robbery justifiably kills the other felon as they flee from the scene of the crime?

Our Penal Code of 1939, P.L. 872, 18 PS § 4701, provides: "All murder ... which shall be committed in the perpetration of any ... robbery ... shall be murder in the first degree ..." The Code does not define "murder," but merely fixes the degree of the crime. In Commonwealth v. Drum, 58 Pa. 9, 15, it was said: "At the common law murder is described to be, when a person of sound memory and discretion unlawfully kills any reasonable creature in being ..., with malice aforethought, expressed or implied. The distinguishing criterion of murder is malice aforethought. But it is not malice in its ordinary understanding alone, a particular ill-will, a spite or a grudge ... It comprehends not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured." (Italics supplied).

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

[ 382 Pa. Page 642]

    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, 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": 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.

[ 382 Pa. Page 643]

"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 ... 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-felon for murder in the first degree, even though after the robbery was completed 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 killing a third person (police officer) came 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

[ 382 Pa. Page 644]

    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. An arsonist is bound to know the perils and natural results of a fire which are reasonably foreseeable according to the common experience of mankind, and in particular to know that an occupant of the building set on fire, an accomplice, a fireman and the public who are likely to come to watch the fire, may die in or as a natural proximate result of the fire. The attempt of an officer or person to put out the fire, or to rescue people or property therein, or the attempt of any person to escape from the burdening building does not constitute in legal contemplation a superseding cause which is sufficient to relieve the arsonist from murder in the first degree. In reason, logic and principle we can see no valid distinction between those cases and a case where an accomplice is killed while setting fire to a house (or building) or attempting to escape therefrom, - the latter's death is just as readily foreseeable as is the death of an owner who attempts to escape or to rescue lives or property from the building." (Italics supplied) In the Bolish case the co-felon's death was the unintentional result of his own acts (of arson), without the intervention of a third person or of the defendant.

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 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

[ 382 Pa. Page 645]

    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 cofelon. 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.

So far as this defendant is concerned, the justification or excuse of the actual slayer, for the killing under consideration, is no different than for the killings in the cases hereinbefore cited.*fn1


Judgment reversed and new trial ordered.


Jackson and defendant attempted to hold up and rob a grocery store; the owner shot and killed Jackson. Can defendant be found guilty of murder under those facts?

The modern and most accurate definition of murder is thus stated in Commonwealth v. Bolish, 381 Pa. 500, 510, 113 A.2d 464: "Murder is defined as an unlawful killing of another with malice aforethought, express or implied."*fn1 Malice, express or implied, it is universally agree, is the trade-mark of murder.

[ 382 Pa. Page 646]

Where a killing occurs in the commission of a robbery malice is implied and the felony murder doctrine applies - all authorities, ancient, modern, case and text agree and both of the dissenting opinions admit - to unintentional and accidental killings which are the natural and reasonably foreseeable result of the robbery: Book IV Blackstone Commentaries, §§ 192-193, page 1589; §§ 200-201, pages 1598-99; Commonwealth v. Bolish, 381 Pa., supra, pages 510, 520, and the numerous cases and text authorities cited therein. If we analyze how such a killing can (and does) amount to murder, it will aid us in solving the question involved in the instant case. The reason is that (a) any person committing any common law felony or one of the enumerated statutory felonies, possesses a malevolent state of mind which the law calls "malice"; and (b) malice is present in the felon (or felons) actually or by legal implication not only at the time of the original felony but also at the time of the killing; and (c) such person is from time immemorial responsible for the natural and reasonably foreseeable results of the felony. Commonwealth v. Bolish, 381 Pa., supra; Commonwealth v. Almeida, 362 Pa. 597, 68 A.2d 595; Commonwealth v. Guida, 341 Pa. 305, 308, 19 A.2d 98; Commonwealth v. Lessner, 274 Pa. 108, 112, 118 A. 24; IV Blackstone Commentaries, §§ 200-201, page 1599; Clark & Marshall "Crimes", 4th Ed., § 245, page 298.

Justice JONES and Justice MUSMANNO admit that the felony murder doctrine is part and parcel of the common law but believe that the felony murder doctrine should not apply where the killing is (so-called) "justifiable".

[ 382 Pa. Page 647]

Justice JONES states: "I am at a loss to understand how anyone can be guilty of murder at common law for ... a justifiable homicide." We might fairly ask the analogous question: If Justice JONES is correct, "How can anyone be guilty of murder [as all authorities agree they can] for an accidental or an unitentional homicide?"*fn2 How 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 minority calls) a justifiable killing in the perpetration of a robbery? Another point overlooked by the minority is that the killing of a robber may be (and usually is) a justifiable killing so far as the intended victim or a police officer is concerned, but that does not make it a justifiable killing qua the co-felon who caused the shooting.

Felony-murder, like malice, which is the sine qua non of murder, is a creation of the law. It origin is shrouded in antiquity. The reason for its origin, development and application to modern conditions was and is "the protection of society". Malice is a malignant state of mind - a mind filled with a wicked malevolent intent to commit, singly or with others, a felony which, according to the experience of mankind, will naturally and likely result in the killing of some

[ 382 Pa. Page 648]

    person. It is the parent as well as an integral part of felony murder - they both were firmly imbedded in the common law and are centuries old. Without the application of the felony murder doctrine or principle, an unintentional or accidental killing in a hold-up could not amount to common law murder. Malice is obviously just as much present in the felon or felons in a so-called justifiable killing which occurs in a robbery, as in an accidental or unintentional killing which occurs in a robbery. Consequently, if the killing occurred in a robbery, what does it matter who fired the fatal shot or who was killed?

It is interesting and relevant to note that the two dissenting Justices differ as to what is and what is not a justifiable killing. Justice MUSMANNO believes that the felony murder doctrine applies if the person killed was an innocent person, irrespective of who fired the fatal shot; but it does not apply if the peson killed was one of the robbers, since killing a robber while he or an accomplice is committing a robbery is justifiable. Justice JONES, on the other hand, apparently believes that the felony murder doctrine applies only if the defendant or one of the robbers fired the fatal shot and that in such an event it does not matter who was killed.

Isn't the distinction made by Justice JONES and by Justice MUSMANNO a distinction without any justifiable or legal difference since, we repeat, the malignant state of mind which the law calls "malice" is present in each felon in a so-called justifiable killing just as much as in an accidental or an unintentional killing and in each case the killing was the natural and reasonably foreseeable result of the felony? Furthermore, doesn't each of these attempted distinctions ignore sound public policy as well as the theory and application of the doctrine of "implied malice" and "felony murder"?

[ 382 Pa. Page 649]

Moreover, Justice JONES'S present view appears to be diametrically different from and inconsistent with (that part of) the standard or test (which is presently relevant) adopted by him in his carefully considered dissenting opinion in Commonwealth v. Almeida, 362 Pa., supra, where he said (page 643): "The jury should have been instructed that, in order to find the defendant guilty of murder, it was no 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 reasonably foreseeable consequences was a killing such as actually occurred."*fn3

In the light of that "reasonably foreseeable consequences" test, which was the same (common law) test laid down by the majority opinion in Commonwealth v. Almeida, and followed by this Court ever since Almeida, isn't his present position inexplicable?

There is, in my judgment, no reason, principle or justice to support the distinction drawn by the minority; and even more important, the Courts of Pennsylvania - after an exhaustive consideration of all the theories and contentions which have been advanced by the minority in this case - have clearly, specifically and unequivocally ruled to the contrary.

Because a man's life is at stake and because of the importance of the felony murder doctrine, it is wise to consider the theories and propositions advanced by the minority - even though they have been repeatedly rejected by the Supreme Court of Pennsylvania - and

[ 382 Pa. Page 650]

    to re-examine the decision in the Almeida case*fn4 and what the law of Pennsylvania was prior to Almeida, and what it has been ever since Almeida.

Justice JONES erroneously premises his present dissenting opinion with the statement (a) that the only murder known to the law of Pennsylvania is (which the exception of the wanton derailment of a railroad train: Section 919 Penal Code of 1939, P.L. 872) common law murder, i.e., murder as it existed under the common law of England; and (b) that the majority opinion extends Commonwealth v. Almeida, which over-extended the felony murder doctrine, ...

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