Criminal Law – Felony -Murder Rule – Application to the Justifiable Killing of An Accomplice by the Intended Victim

The defendant and an armed accomplice held up a grocery store, took money at gun point from the proprietor and fled in opposite directions. The proprietor pursued the accomplice and killed him in the gun battle that ensued. Defendant escaped, but later was apprehended and indicted on a charge of first degree murder. On appeal from a judgment sustaining defendant’s demurrer to the evidence, held, reversed and new trial ordered, three judges dissenting. The defendant may be convicted of first degree murder under the Pennsylvania statute which provides that “all murder … which shall be committed in the perpetration of … any … robbery … shall be murder in the first degree.” Commonwealth v. Thomas, 382 Pa. 639, 117 A. (2d) 204 (1955).