Orth, J.,

delivered the opinion of the Court.

With the common law of England, to which the inhabitants of Maryland are constitutionally entitled, Md. Const., Dec. of Rights, Art. 5, came the doctrine of accessoryship applicable to felonies. Although the common law may be changed by legislative act1 or judicial decision,2 the doctrine has not been altered in this jurisdiction. Maryland is one of the few, if not the only state, which has retained this doctrine in virtually the same form as it existed at the time of William Blackstone in the 18th century, and it represents the law of Maryland at the present time.3 State v. Williamson, 282 Md. 100, 111, 382 A. 2d 588 (1978) (concurring opinion by Levine, J.).

*192Accompanying the common law doctrine across the Atlantic were certain highly technical procedural rules, not altogether logical, which had developed from the distinction between principals and accessories before the fact. These rules operate to the advantage of the accused and the detriment of the prosecution, for they “tended to shield accessories from punishment notwithstanding overwhelming evidence of their criminal assistance.” W. La Fave & A. Scott, Handbook on Criminal Law § 63, pp. 498-499 (hereinafter referred to as La Fave & Scott). The rules are frequently procedural embarrassments to the State, see State v. Magliano, 7 Md. App. 286, 255 A. 2d 470 (1969), and the case at hand furnishes yet another example. It concerns the application of the common law doctrine of accessoryship to the crime of murder, and the procedural embarrassments to. the State are compounded by the statutory classification in Maryland of murder into degrees, which was unknown at the English common law.

I

The ultimate question on this appeal is whether the Circuit Court for Prince George’s County erred in dismissing an indictment returned against James Edward Ward,4 Harry Edward Brockman and David Victor Maness were charged with the premeditated murder of Gerald Joseph Godbout, Jr. on 28 April 1972, and were tried in the Circuit Court for Prince George’s County. Each pleaded guilty to and was convicted of the murder in the second degree under a plea bargain arrangement.5 Maryland Rule 731 e, formerly Rule 724. On *19317 July 1974 Ward was indicted for various offenses relating to the murder. At the time of the dismissal of the indictment on 11 April 1978, only the third count remained.6 It charged Ward as an accessory before the fact of the murder of Godbout, alleged to have been committed by Brockman and Maness “feloniously, wilfully and of their deliberately premeditated malice aforethought.” It presented that Ward “did unlawfully aid, counsel and procure the said ... Brockman and ... Maness to do and commit the said murder----”

The indictment was dismissed upon the grant of a motion filed by Ward claiming that the third count was defective. In light of the allegations in the motion, the arguments made regarding them, and the comments of the court, these questions are presented which go to the determination of *194whether the court erred in dismissing the indictment as defective:

1) May there be an accessory before the fact of murder in the second degree?

2) If so, did the form of the third count permit Ward to be tried as an accessory before the fact of murder in the second degree?

3) In any event, may Ward be guilty of murder in the first degree as accessory before the fact when his principals stand convicted of murder in the second degree?

II

We lay a foundation for our determination of whether the court erred in dismissing the indictment by examining the relevant terms involved.

Murder

Homicide is the killing of a human being by a human being. It is culpable when it is felonious, and it is felonious when it is not justifiable or excusable. See Clark & Marshall, A Treatise on the Law of Crimes §§ 10.00-10.14 (7th ed. 1967) (hereinafter referred to as Clark & Marshall); L. Hochheimer, Crimes and Criminal Procedure §§ 656-678 (1st ed. 1897) (hereinafter referred to as Hochheimer); R. Perkins, Criminal Law 28-96 (2d ed. 1969) (hereinafter referred to as Perkins).

“In the English common law there was but one crime of felonious homicide (if petit treason is ignored). [7] The division of this into murder and manslaughter resulted from early statutes intended to exclude the *195more heinous types of homicide from benefit of clergy. In its origin this was merely a difference in penalty dependent upon the presence or absence of aggravating circumstances, and no doubt it would have been worded in terms of ‘degrees’ of the crime if that concept had been in use at the time. For most purposes murder and manslaughter have come to be regarded as distinct offenses....” Perkins, Parties to Crime, 89 U. Pa. L. Rev. 581, 587 (1941).

In Maryland, murder and manslaughter are not considered as degrees of felonious homicide, but are regarded as distinct offenses, distinguished by the presence of malice aforethought in murder and the absence of malice in manslaughter. Davis v. State, 39 Md. 355 (1874); Weighorst v. State, 7 Md. 442 (1855).8

At the common law there were no degrees of murder. A conviction of felonious homicide with malice aforethought, that is, murder, called for the sentence of death and was excluded from the benefit of clergy.9 The penalty of death for all acts of murder long ago came to be thought too severe because of the widely different circumstances and varying atrociousness under which one person may feloniously kill another. Ameliorative measures were taken in many states through legislative enactments, generally by dividing murder *196into degrees and relating the punishment to the degree.10 Maryland followed this pattern. Acts 1809, ch. 138, § 3. The preamble to § 3 expressed its object:

“And whereas the several offences which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment____” 11

As presently codified, the statute declares that “[a]ll murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree,” Maryland Code (1957, 1976 Repl. Vol.) art. 27, § 407,12 and “[a]ll other kinds of murder shall be deemed murder in the second degree,” id. § 411.

Principals and Accessories

“In the field of felony the common law divided guilty parties into principals and accessories.” Perkins at 643. Principals came to be classified as in the first degree (perpetrators) or in the second degree (abettors) and accessories as before the fact (inciters) or after the fact (criminal protectors).13

*197A principal in the first degree is one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent. A principal in the second degree is one who is guilty of felony by reason of having aided, counseled, commanded or encouraged the commission thereof in his presence, either actual or constructive. An accessory before the fact is one who is guilty of felony by reason of having aided, counseled, commanded or encouraged the commission thereof, without having been present either actually or constructively at the moment of perpetration. An accessory after the fact is one who, with knowledge of the other’s guilt, renders assistance to a felon in the effort to hinder his detection, arrest, trial or punishment. See State v. Williamson, 282 Md. 103-105; Camphor v. State, 233 Md. 203, 205, 196 A. 2d 75 (1963); Thornton v. State, 232 Md. 542, 544, 194 A. 2d 617 (1963); Veney v. State, 225 Md. 237, 238, 170 A. 2d 171 (1961); Davis v. State, 38 Md. 15, 45 (1873); Agresti v. State, 2 Md. App. 278, 280, 234 A. 2d 284 (1967); 4 W. Blackstone, Commentaries *34-38 (hereinafter referred to as Blackstone); Clark & Marshall §§ 8.01-8.03,8.06; Hochheimer §§ 31-36; Perkins at 643-669. For a neat summary of the common law of parties as applied to felonious homicide, see State v. Powell, 168 N. C. 134, 138, 83 S. E. 310 (1914).

Ill

(1)

We receive little assistance from the common law in considering whether there may be an accessory before the *198fact of second degree murder because, as we have indicated, murder was not divided into degrees at the common law. Blackstone asserts in his discussion of what offenses admit of accessories: “In murder and other felonies, there may be accessories: except only in those offences, which by judgment of the law are sudden and unpremeditated, as manslaughter and the like; which therefore cannot have any accessories before the fact.” Blackstone *36. Commentators reject this exception. Perkins characterizes it as “a far-fetched corollary” to the rule that an accessory cannot be tried before his principal. Perkins at 673. 1 P. Wharton, Criminal Law § 680, p. 908 (12th ed. 1932) (hereinafter referred to as Wharton) states flatly: “A person may be legally convicted as accessory before the fact of murder in the second degree.” 1R. Anderson, Wharton’s Criminal Law and Procedure § 111, p. 241 (1957) (hereinafter referred to as Anderson) asserts: “There may be accessories before the fact to the crime of murder in different degrees.” This view is thus explained in Wharton:

“It has been doubted whether there can be an accessory before the fact to manslaughter, since accessoryship presupposes premeditation, and premeditation is incompatible with manslaughter. But... an instigator may, in hot blood, stimulate a person incensed with another to execute a deed of vengeance on such other, when the offense of the perpetrator would be only manslaughter; and we may also hold that an instigator may be guilty of murder in instigating another to commit manslaughter by the rash use of dangerous instrumentalities. A fortiori there may be an accessory before the fact to murder in the second degree.” Id. § 272, pp. 361-362 (footnotes omitted).

See G. Williams, Criminal Law § 130 (2nd ed. 1961) (hereinafter referred to as Williams).

The General Assembly has recognized accessoryship of murder in the second degree at least to the extent of providing for punishment upon conviction thereof, but *199without distinction between accessories before and after the fact:

“Every person convicted of the crime of murder in the second degree, or as accessory thereto, shall be sentenced to the penitentiary for not more than thirty years.” Code (1957, 1976 Repl. Yol.) art. 27, § 414 (emphasis added).14

The view that there may be an accessory before the fact of murder in the second degree has a rational basis. A person may be guilty of “[c]onduct... accompanied by an intent to do serious bodily injury but without an intent to kill, which legally causes another’s death.” La Fave and Scott, 540. We recognized that such conduct constitutes murder in Davis v. State, 237 Md. 97, 104, 205 A. 2d 254 (1964), cert. denied, 382 U. S. 945 (1965): “An actual intent to take life is not necessary for a conviction of murder if the intent is to commit grievous bodily harm and death occurred in consequence of the attack.” This “intent-to-do-serious-bodily-injury murder” has been traced back to Holloway’s Case, 79 Eng. Rep. 715 (K.B. 1628). The murder in such circumstances is in the second degree. “If the intent were to commit grievous bodily harm, and death occurred in consequence of the attack, then the case would have been murder in the second degree____” Wharton § 841, pp. 1131-1132. The felonious homicide would be with malice aforethought but not wilful, deliberate and premeditated. See Gladden v. State, 273 Md. 383, 387, 330 A. 2d 176 (1974). So, if A shoots B in the leg with the intention of doing him serious bodily harm short of death but the injury thereby done to B results in the death of B, however contrary this may be to A’s intention, A is guilty of murder in the second degree. If C, sharing A’s intention that B be seriously injured but not killed, aided, counseled, commanded or encouraged the shooting, without having been present either *200actually or constructively at the moment of perpetration, he would be guilty as an accessory before the fact to murder in the second degree.

We conclude that there may be an accessory before the fact of murder in the second degree.

(2)

Having concluded that there may be an accessory before the fact of murder in the second degree, we find that Ward could be tried therefor under the third count of the indictment.

The statute classifying murder into degrees did not require a change in the common law forms of charging the offense. Wood v. State, 191 Md. 658, 667, 62 A. 2d 576 (1948). However, the General Assembly of Maryland relaxed the formal common law requirements of indictment in homicide cases when it enacted Chapter 248 of the Acts of 1906. It authorized the use of a shortened statutory form which may, but need not, be used in lieu of the common law forms. Although there were subsequent amendments to the form because of controversies relative to the death penalty, the only actual change in the formula authorized to be used in an indictment was the requirement added by § 7 of Acts 1963, ch. 558 that an indictment conclude with the words “against the peace, government and dignity of the State.” State v. Williamson, 282 Md. at 109. The validity of the 1906 formula has been upheld by this Court. Kelley v. State, 181 Md. 642, 647, 31 A. 2d 614 (1943); Neusbaum v. State, 156 Md. 149, 161-162, 143 A. 872 (1928).

The murder of which Ward was alleged to have been an accessory before the fact was charged in the third count of the indictment pursuant to the statutory formula, which, we observe, is expressly applicable, not only to murder and manslaughter, but “for being accessory thereto.” It is well settled that under an indictment pursuant to the statutory formula, even though it spells out murder in the first degree, the accused may be convicted of murder in the first degree, of murder in the second degree, or of manslaughter. *201Blackwell v. State, 278 Md. 466, 476, 365 A. 2d 545 (1976), cert. denied, 431 U. S. 918 (1977); State v. Evans, 278 Md. 197, 199, n. 1, 362 A. 2d 629 (1976); Carroll v. Warden, 205 Md. 631, 632-633, 106 A. 2d 71 (1954). This is not out of line with the common law, which never entirely lost sight of the notion that the crime is felonious homicide, of which murder and manslaughter are but different grades. Perkins at 649. Thus, it was said in 1 Hale P. C. *348:

“Upon an indictment of murder, tho the party upon his trial be acquit of the murder, and convict of manslaughter, he shall receive judgment, as if the indictment had been manslaughter, for the offense in substance is the same.”

We find that, under the third count of the indictment, Ward could be tried as an accessory before the fact of murder in the second degree.

(3)

We consider now whether a person may be convicted of murder in the first degree as accessory when his principal has been convicted of the murder in the second degree.

At the common law the principal in the second degree may be tried and convicted prior to the trial of the principal in the first degree, or even after the latter has been tried and acquitted. 1 Hale P. C. *437. Furthermore, a principal in the second degree may be convicted of a higher crime or a lower crime than the principal in the first degree. Clark & Marshall § 8.05, p. 521; Perkins at 670-671.15 With respect to accessories, however, the common law took a different path. An accessory cannot be tried, without his consent, before the *202principal.16 State v. Williamson, 282 Md. at 112 (concurring opinion by Levine, J.); Clark & Marshall § 8.05, p. 523; Perkins at 672-673. And an accessory could not be convicted of a higher crime than his principal. Blackstone declares flatly:

“It is a maxim, that accessorius sequitur naturam suiprincipalis: and therefore an accessory cannot be guilty of a higher crime than his principal; being only punished as a partaker of his guilt.” Blackstone at *36.

See Clark & Marshall § 8.03, p. 514; Hochheimer § 38; Perkins at 675; Wharton § 276. The rule that an accessory before the fact may not be convicted of a higher crime than the principal has not been altered by statute or judicial decision in Maryland and is the law of this State at the present time.

In arguing to the trial court that a person could be convicted of murder in the first degree as an accessory, although the principal has been convicted of that murder in the second degree, the State declared that “Wharton says we can do it.” 17 We think that the State misinterpreted Wharton. It is correct that Wharton says:

“The instigator may act in hot blood, in which case he will be guilty only of manslaughter, while the *203perpetrator may act coolly, and thus be guilty of murder. The converse, also, may be true: the instigation may be cool and deliberate, the execution in hot blood by a person whom the instigator finds in a condition of unreasoning frenzy. A person desiring coolly to get rid of an enemy, for instance, may employ as a tool someone whom that enemy has aggrieved, and who is infuriated by his grievance. Hence an accessory before the fact (or, to adopt the terms of recent codes, an instigator) may be guilty of murder, while the principal (or perpetrator) may be guilty of manslaughter; or the accessory before the fact (instigator), acting in hot blood, may be guilty of manslaughter, while the perpetrator (principal), acting with deliberate malice, may be guilty of murder.” Wharton § 276, pp. 363-364.

Immediately preceding this statement, however, is a recognition of the common law rule and a qualification regarding the view expressed:

“Under the old law, the defendant was first convicted, and then the accessory was charged with being accessory to the offense which the conviction covered. But now that instigation is a substantive offense, it must be remembered that the offense of the instigator is not necessarily of the same grade as that of the perpetrator.” Id. § 276, p. 363 (emphasis added).

Before us the State also quotes Williams § 130, pp. 390-391. Professor Williams refers to the rule that a principal in the first degree may be convicted of murder and a principal in the second degree of manslaughter, and asserts: “There is no reason why a similar result should not be reached for accessories before.” Id. § 130, p. 390 (§ 62, p. 210 (1st ed. 1953)). He gives examples whereby an accessory before the fact could be guilty of manslaughter and the principal of murder, and the converse where the guilt of the secondary party is the greater. He concludes: “To put the matter generally, a secondary party can be convicted of a crime of *204a higher degree than the principal.” Id. § 130, p. 391 (§ 62, p. 211 (1st ed. 1953)). But he relies heavily on Wharton, and we are constrained to conclude that his view, like that of Wharton, depends upon the status of the law whereby accessoryship before the fact has been made a substantive offense by statute.

Accessoryship before the fact was not a substantive offense under common law, and there being neither statute nor judicial decision in this jurisdiction making it so, it is not a substantive offense in Maryland. The common law theory of parties was based upon the concept of one crime with guilt attaching to several persons. The application of this theory to murder was well expressed in State v. Ayers, 67 Tenn. 96 (1874):

“The offense is compounded of the connivance of the accessory and the actual killing by the principal felon, and the crime of the accessory, thought inchoate in the act of counseling, hiring or .commanding, is not consummate until the deed is actually done. The law in such case, holds the accessory before the fact to be guilty of the murder itself, not as principal, it is true, but as accessory before the fact, for it is the doing of the deed, and not the counseling, hiring, or commanding that makes his crime complete; and it is for the murder that he is indicted, and not for the counseling and procuring.” Id. at 100.

Thus it is that Hale spoke of “an accessory to murder before the fact,” 1 Hale P.C. *435, rather than “an accessory before the fact to the crime of murder,” or some similar form, as is used under modern statutes which make accessoryship before the fact a separate substantive offense. Perkins at 649. What we perceive to be the basis of the view of Wharton and Williams that an accessory before the fact may be convicted of a higher crime than that of which the principal was convicted simply does not exist in Maryland. There may be no reason why the rule with respect to principals in the first degree and principals in the second degree should not be *205extended to accessories before, as Williams stated, but the plain fact is that Maryland has not yet done so.

The classification of murder into degrees left intact the common law concept of murder as one crime:

“ ‘Murder’ is here recognized as a general denomination, including offenses differing from each other in their degrees of atrocity, but not in their nature or kind; no attempt is made to explain or modify its meaning or abridge its range. Its common law sense is left unimpaired; the measure of punishment only is sought to be graduated according to the circumstances under which it was committed.” Davis v. State, 39 Md. at 374.18

See Gladden v. State, 273 Md. at 389-390; Stansbury v. State, 218 Md. 255, 260, 146 A. 2d 17 (1958); Wood v. State, 191 Md. at 666; Abbott v. State, 188 Md. 310, 312, 52 A. 2d 489 (1947); Hanon v. State, 63 Md. 123, 126 (1885). At first blush, it would seem that since murder is one crime, the rule that an accessory before the fact may not be convicted of a higher crime than his principal would be satisfied when both were convicted of murder, regardless of the degree. But the rule was based on the notion that an accessory should never suffer more punishment than the principal. Perkins at 675. And at the common law, principals and accessories were equally culpable and subject to the same punishment. State v. Williamson, 282 Md. at 106; Agresti v. State, 2 Md. App. at 281; 1 J. Chitty, A Practical Treatise on the Criminal Law *267 (1819). Clark & Marshall states: “At common law an accessory before the fact is liable to the same punishment as the principal.” Id. § 8.05, p. 522. In Maryland, at the time Ward was alleged to have committed the murder as an *206accessory before the fact, the punishment prescribed by statute for “[e]very person convicted of murder in the first degree, his or her aiders, abettors and counsellers,” was death or life imprisonment, in the discretion of the court, except that when a jury in rendering a verdict of murder in the first degree added the words “without capital punishment,” the sentence was to be life imprisonment. Code (1957,1971 Repl. Vol.) art. 27, § 413.19 As we have seen, the punishment upon conviction of murder in the second degree and of being an accessory thereto, was not more than thirty years. Therefore, to be faithful to the rationale of the rule at common law, it must be construed in light of present day circumstances to apply to degrees of murder, so that an accessory before the fact may not be convicted of a higher degree of murder than the principal committing that murder. In the case sub judice, the principals stood validly convicted of murder in the second degree, and Ward may not be convicted of murder in the first degree as an accessory.20 *207Otherwise he would not be equally culpable with the principals and would be liable to greater punishment than that to which they were subjected.

IV

We have found that there may be an accessory before the fact of murder in the second degree, that the third count of the indictment permitted Ward to be convicted of murder in the second degree as an accessory before the fact, but that, as a matter of law, Ward may not be convicted of murder in the first degree as an accessory before the fact. It follows from these findings that the indictment before the court was not defective. Ordinarily, Ward could be properly tried under it, and the court would err in dismissing it. Upon trial under the count, however, Ward would be entitled as a matter of law to a judgment of acquittal of murder in the first degree as accessory.

This case takes still another turn, however, because the procedural questions arising from the common law doctrine of accessoryship were compounded by comments made by the prosecutor at trial. During the argument before the trial court on the motion to dismiss the indictment as defective, the court took the position that the indictment charged Ward only with being an accessory before the fact to murder in the first degree. It said:

“My point is you have charged him with a specific crime of accessory before the fact of premeditated murder and you don’t have principals to premeditated murder so you can’t convict him of accessory before the fact of premeditated murder.”

The State countered by claiming that it was not necessary to have principals convicted of murder in the first degree to try a person as an accessory before the fact to murder in the first degree. The State apparently agreed with the contention of *208the defense that there could not be accessoryship before the fact to murder in the second degree — “it doesn’t make sense.” Whereupon the court asked: “Then how can you try somebody on the indictment... for accessory before the fact of a seeond degree murder, which is what you want to do?” The transcript of the proceedings reads:

“MR. ARNOLD [Assistant State’s Attorney]: No, it isn’t. We are trying him for accessory before the fact of first degree murder, and Wharton says we can do it.

“THE COURT: Even though there is no conviction of first degree murder?

“MR. ARNOLD: That’s correct. That answers it specifically.”

As we have indicated, the State misinterpreted Wharton, and we have concluded that as a matter of law, he could not be tried for murder in the first degree as an accessory. The question is, however, whether, by reason of this expression of how it planned to proceed, the State is also precluded from trying Ward for murder in the second degree as an accessory. We do not think that it is. It is clear that in ruling on the motion the court did not subscribe to the State’s view and did not rely on the State’s statement of what it intended to prove in reaching its decision. Ward was in no way misled. We now have established precise procedures for the entry of a nolle prosequi by our Rules of Procedure. Rule 782, formerly Rule 711. “A defendant may enter a plea of not guilty to one degree and a plea of guilty to another degree of an offense which, by law, may be divided into degrees of guilt.” Rule 731 e, formerly Rule 724, and, likewise, a nolle prosequi may be entered to a degree of an offense. See Hochheimer .§ 209. In the circumstances, we do not deem the State’s statement made during argument to amount to the entering of a nolle prosequi to murder in the second degree as an accessory. Compare Knotts v. State, 237 Md. 417, 207 A. 2d 100 (1965); Williams v. State, 7 Md. App. 241, 254 A. 2d 376 (1969), cert. denied, 256 Md. 749 (1970); Stocker v. State, 4 Md. App. 275, *209242 A. 2d 588 (1968), cert. denied, 251 Md. 752, cert. denied 395 U. S. 982 (1969).

In short, we believe that, in the unique situation in which the State was placed by the procedural embarrassments emanating from the common law doctrine of accessoryship, the position it indicated in arguing the motion to dismiss the indictment should be treated as no more than a statement of how it thought it would proceed at trial if it prevailed in its argument that the motion to dismiss the indictment be denied, rather than an absolute “abandonment” of attempting to prove under the indictment that Ward was guilty of murder in the second degree as an accessory before the fact. In the interests of justice, the State should not be precluded at a trial of Ward under the third count of the indictment from attempting to establish that he was guilty of the murder of Godbout in the second degree as an accessory before the fact.

We reverse the judgment of the trial court and remand the case for trial under the third count of the indictment. At the trial, Ward shall be entitled, as a matter of law, to a judgment of acquittal as to murder in the first degree as accessory before the fact.

Y

The remand of the case for trial of Ward under the third count of the indictment for murder in the second degree as accessory before the fact requires further comment. Acts 1978, ch. 3, §§ 1, 2 repealed former §§ 412, 413 and 414 of art. 27 and enacted new sections in lieu thereof. See footnote 19, supra. Former § 414, as we have indicated, provided that “[e]very person convicted of the crime of murder in the second degree, or as accessory thereto, shall be sentenced to [imprisonment] for not more than thirty years.” The new § 412 (c) provides: “A person found guilty of murder in the second degree shall be sentenced to imprisonment for not more than 30 years.” Unlike the former statute, nothing is said about accessoryship to murder in the second degree. We have seen, however, that in Maryland accessoryship before the fact is not a substantive offense. A person need not be *210specifically charged as an accessory before the fact; he may be charged pursuant to the statutory formula with the 'murder and be convicted thereunder as accessory thereto upon evidence so showing. State v. Williamson, 282 Md. at 110.21 As an accessory before the fact he is punished as a partaker of the guilt of the principal and is liable to the same punishment as the principal. Therefore, the absence of the phrase “or as accessory thereto” in the statute prescribing the punishment for second degree murder is of no moment; it does not result in a crime without-a penalty. See Perkins at p. 7. The phrase was mere surplusage in the former law, and under the new statute, as under the old, a person convicted of murder in the second degree as an accessory before the fact may be punished by imprisonment for not more than 30 years.

In any event, the 1978 Act is not applicable with respect to the offense for which Ward may be tried, namely, the murder in the second degree of Godbout as accessory before the fact. Acts 1978, ch. 3, § 3, provides: “That this Act shall take effect July 1, 1978, and shall apply only to offenses committed on or after that date, for which the defendant is sentenced pursuant to this Act.” Since the offense charged to Ward occurred prior to 1 July 1978, the Act does not apply to repeal the former § 414 prescribing the punishment for murder in the second degree. Former § 414 remains in full force and effect with respect to the punishment to which Ward is subject if he is convicted of the murder in the second degree of Godbout as an accessory before the fact.

VI

Ward filed below a separate motion to dimiss the indictment on the ground that a trial would violate the double jeopardy clause of the fifth amendment to the Constitution of the United States. Ward filed a cross-appeal presenting the question whether retrial was barred by the double jeopardy provision. The State moved to dismiss the cross-appeal *211alleging that there had been no final judgment on that motion to dismiss. Code (1974) §§ 12-101 and 12-301 of the Courts and Judicial Proceedings Article. The motion was expressly not ruled upon by the judge below. The judgment of the trial judge in dismissing the indictment was explicitly not predicated upon a violation of the constitutional guarantee against being placed twice in jeopardy. We have said that a denial of a motion to dismiss an indictment on the ground of double jeopardy is appealable immediately, Stewart v. State, 282 Md. 557, 570, 386 A. 2d 1206 (1978), but here there was no such denial. Moreover, we are not persuaded in the circumstances to exercise our discretion under Rule 885 to decide the point even though not decided by the trial court. The motion to dismiss the cross-appeal is granted.

Judgment reversed; case remanded for trial in accordance with this opinion; motion to dismiss cross-appeal granted; costs to be paid by appellee.

SCOLNIK, Justice.

William Linscott appeals from a judgment following a jury-waived trial in the Superior Court, Waldo County, convicting him of one count of murder, 17-A M.R.S.A. § 201(1)(A) (1983), and one count of robbery, 17-A M.R.S.A. § 651(1)(D) (1983). He contends that his conviction of intentional or knowing murder as an accomplice under the accomplice liability statute, 17-A M.R.S.A. § 57(3)(A) (1983), violated his constitutional right to due process of law in that he lacked the requisite intent to commit murder. We find no merit in the defendant’s argument and affirm the judgment.

The facts are not in dispute. On December 12, 1984, the defendant, then unemployed, and two other men — the defend*1068ant’s step-brother, Phillip Willey, and Jeffrey Colby — drove from his trailer in Belmont, Maine to the house of a friend, Joel Fuller. Fuller, with a sawed-off shotgun in his possession, joined the others. The defendant drove to the residence of Larry Ackley, where Fuller obtained 12-gauge shotgun shells.

Later that evening, Fuller suggested that the four men drive to the house of a reputed cocaine dealer, Norman Grenier of Swanville, take Grenier by surprise, and rob him. The defendant agreed to the plan, reasoning that Grenier, being a reputed drug dealer, would be extremely reluctant to call the police and request they conduct a robbery investigation that might result in the discovery of narcotics in his possession. Fuller stated that Grenier had purchased two kilograms of cocaine that day, and that Grenier had been seen with $50,000 in cash. Fuller guaranteed the defendant $10,000 as his share of the proceeds of the robbery.

The four drove up to Grenier’s house, which was situated in a heavily wooded rural area on a dead-end road in Swanville. The defendant and Fuller left the car and approached the house. The defendant carried a hunting knife and switchblade, and Fuller was armed with the shotgun. Wil-ley and Colby drove off in the defendant’s car and returned later for the defendant and Fuller.

The defendant and Fuller walked around to the back of Grenier’s house. At that time, Grenier and his girlfriend were watching television in their living room. The defendant and Fuller intended to break in the back door in order to place themselves between Grenier and the bedroom, where they believed Grenier kept a loaded shotgun. Because the back door was blocked by snow, the two men walked around to the front of the house. Under their revised plan the defendant was to break the living room picture window whereupon Fuller would show his shotgun to Grenier, who presumably would be dissuaded from offering any resistance.

The defendant subsequently broke the living room window with his body without otherwise physically entering the house. Fuller immediately fired a shot through the broken window, hitting Grenier in the chest. Fuller left through the broken window after having removed about $1,300 from Grenier’s pants pocket, later returning to the house to retrieve an empty shotgun casing. The two men returned to the road and waited behind a bush for the return of the defendant’s car. The defendant and Fuller were later dropped off at Fuller’s house, where both men burned several articles of their clothing. Fuller gave the defendant $500, presumably from the money stolen from Grenier.

On March 27, 1985, the defendant was indicted on one count of murder, 17-A M.R. S.A. § 201(1)(A) (1983), and one count of robbery, 17-A M.R.S.A. § 651(1)(D) (1983). At a jury-waived trial, which commenced on January 6, 1986, the defendant testified that he knew Fuller to be a hunter and that it was not unusual for Fuller to carry a firearm with him, even at night. He nevertheless stated that he had no knowledge of any reputation for violence that Fuller may have had. The defendant further testified that he had no intention of causing anyone’s death in the course of the robbery.

At the completion of the trial on January 8, 1986, the trial justice found the defendant guilty of robbery and, on a theory of accomplice liability, found him guilty of murder. The court specifically found that the defendant possessed the intent to commit the crime of robbery, that Fuller intentionally or at least knowingly caused the death of Grenier, and that this murder was a reasonably foreseeable consequence of the defendant’s participation in the robbery. However, the court also found that the defendant did not intend to kill Grenier, and that the defendant probably would not have participated in the robbery had he believed that Grenier would be killed in the course of the enterprise.

The sole issue raised on appeal is whether the defendant’s conviction pursuant to *1069the second sentence of subsection 3-A of the accomplice liability statute, 17-A M.R. S.A. § 57 (1983),1 unconstitutionally violates his right to due process under Article I, section 6-A of the Maine Constitution and the Fourteenth Amendment of the United States Constitution. “[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970). The defendant contends that the accomplice liability statute impermissi-bly allows the State to find him guilty of murder, which requires proof beyond a reasonable doubt that the murder was committed either intentionally or knowingly, without having to prove either of these two culpable mental states. Instead, the defendant argues, the accomplice liability statute permits the State to employ only a mere negligence standard in convicting him of murder in violation of his right to due process. We find the defendant’s argument to be without merit.

The second sentence of section 57(3)(A) endorses the “foreseeable consequence” rule of accomplice liability. See State v. Goodall, 407 A.2d 268, 278 (Me.1979).2 In that case we stated that

[t]he history of the statute demonstrates that the legislature indeed intended to impose liability upon accomplices for those crimes that were the reasonably foreseeable consequence of their criminal enterprise, notwithstanding an absence on their part of the same culpability required for conviction as a principal to the crime.

Id. (emphasis added). Accordingly, we have stated that section 57(3)(A) is to be interpreted as follows: Under the first sentence of that section, which is to be read independently of the second sentence,

liability for a “primary crime” ... [here, robbery] is established by proof that the actor intended to promote or facilitate that crime. Under the second sentence, liability for any “secondary crime” ... [here, murder] that may have been committed by the principal is established upon a two-fold showing: (a) that the actor intended to promote the primary crime, and (b) that the commission of the secondary crime was a “foreseeable consequence” of the actor’s participation in the primary crime.

Id. at 277-278 (footnote omitted; emphasis in original). We have consistently upheld *1070this interpretation of section 57(3)(A). See State v. Armstrong, 503 A.2d 701, 703 (Me.1986); State v. Johnson, 434 A.2d 532, 538 (Me.1981); State v. Kimball, 424 A.2d 684, 693 (Me.1981); State v. Anderson, 409 A.2d 1290, 1303 (Me.1979). We discern no compelling reason to depart from this construction of the statute.

Furthermore, the foreseeable consequence rule as stated in Section 57(3)(A) merely carries over the objective standards of accomplice liability as used in the common law. See State v. Goodall, 407 A.2d at 278, citing State v. Simpson, 276 A.2d 292, 295 & n. 2 (Me.1971).3 Thus, a rule allowing for a murder conviction under a theory of accomplice liability based upon an objective standard, despite the absence of evidence that the defendant possessed the culpable subjective mental state that constitutes an element of the crime of murder, does not represent a departure from prior Maine law.

Moreover, we have upheld the constitutionality of two related statutes, the felony murder statute, 17-A M.R.S.A. § 202 (1983), and the depraved indifference murder statute, 17-A M.R.S.A. § 201(a)(B), (1-A) (1983 & Supp.1986). See State v. Reardon, 486 A.2d 112 (Me.1984); State v. Michaud, 513 A.2d 842 (Me.1986). As in the felony murder and depraved indifference statutes, the Legislature in enacting the accomplice liability statute similarly intended that a subjective culpable mental state on the part of the accomplice is not required. So long as the accomplice intended to promote the primary crime, and the commission of the secondary crime was a foreseeable consequence of the accomplice’s participation in the primary crime, no further evidence of the accomplice’s subjective state of mind as to the secondary crime is required. We find no fundamental unfairness in this statutory scheme.

We also do not find fundamentally unfair or disproportionate the grading scheme for sentencing purposes between felony murder and murder premised on a theory of accomplice liability,4 because, as we stated in State v. Kimball, there is a “critical difference between ‘accomplice’ guilt of the crime of ‘Murder’ in violation of Section 201 and guilt of the separate and distinct offense of ‘Felony murder’ in violation of Section 202 ... ”:

This critical difference relates to the nature of the homicide required to be “a reasonably foreseeable consequence.” The guilt of defendant A of Section 202 “Felony murder” can arise because a person’s death is caused by the actions of defendant B alone, even though the circumstances are not such that defendant B’s conduct in causing the death becomes “Murder”, in violation of Section 201. In contrast, defendant A’s guilt of Section 201 “Murder,” by reason of “accomplice” accountability under Section 57(1) in combination with the second sentence of Section 57(3)(A), can arise only if, as an indispensible element, the commission by defendant B of the crime of Section 201 “Murder” was “a reasonably foreseeable consequence of ... [the] *1071conduct” of defendant A described in the first sentence of Section 57(3)(A).

Id., 424 A.2d at 692 (emphasis in original). The potential penalty of life imprisonment for murder under a theory of accomplice liability based on an objective standard “does not denote such punitive severity as to shock the conscience of the public, nor our own respective or collective sense of fairness.” State v. Reardon, 486 A.2d at 121. “In the criminal homicide field the jurisprudence of this State has been constant in maintaining that the subjective mental, emotional or other behavioral state or condition of the defendant not be an indispensably controlling factor in evaluation of the punitive seriousness of the crime.” Id. (emphasis in original).

For the foregoing reasons, we find no constitutional defect in this statutory provision, nor any fundamental unfairness in its operation.

The entry is:

Judgment affirmed.

All concurring.

CARRICO, C.J.,

delivered the opinion of the Court.

Indicted for involuntary manslaughter, Joseph A. Bailey was convicted in a jury trial and sentenced in accordance with the jury’s verdict to serve six months in jail and to pay a fine of $1,000. The question on appeal is whether it was proper to convict Bailey of involuntary manslaughter when, in his absence, the victim was killed by police officers responding to reports from Bailey concerning the victim’s conduct.

*260The death of the victim, Gordon E. Murdock, occurred during the late evening of May 21, 1983, in the aftermath of an extended and vituperative conversation between Bailey and Murdock over their citizens’ band radios. During the conversation, which was to be the last in a series of such violent incidents, Bailey and Murdock cursed and threatened each other repeatedly.

Bailey and Murdock lived about two miles apart in the Roanoke area. On the evening in question, each was intoxicated. Bailey had consumed a “twelve-pack” of beer and a “fifth of liquor” since mid-afternoon; a test of Murdock’s blood made during an autopsy showed alcoholic content of “.271% ... by weight.” Murdock was also “legally blind,” with vision of only 3/200 in the right eye and 2/200 in the left. Bailey knew that Murdock had “a problem with vision” and that he was intoxicated on the night in question.

Bailey also knew that Murdock owned a handgun and had boasted “about how he would use it and shoot it and scare people off with it.” Bailey knew further that Murdock was easily agitated and that he became especially angry if anyone disparaged his war hero, General George S. Patton. During the conversation in question, Bailey implied that General Patton and Murdock himself were homosexuals.

Also during the conversation, Bailey persistently demanded that Murdock arm himself with his handgun and wait on his front porch for Bailey to come and injure or kill him. Murdock responded by saying he would be waiting on his front porch, and he told Bailey to “kiss [his] mother or [his] wife and children goodbye because [he would] never go back home.”

Bailey then made two anonymous telephone calls to the Roanoke City Police Department. In the first, Bailey reported “a man . . . out on the porch [at Murdock’s address] waving a gun around.” A police car was dispatched to the address, but the officers reported they did not “see anything.”

Bailey called Murdock back on the radio and chided him for not “going out on the porch.” More epithets and threats were exchanged. Bailey told Murdock he was “going to come up there in a blue and white car”1 and demanded that Murdock “step out there on the . . . porch” with his gun “in [his] hands” because he, Bailey, would “be there in just a minute.”

*261Bailey telephoned the police again. This time, Bailey identified Murdock by name and told the dispatcher that Murdock had “a gun on the porch,” had “threatened to shoot up the neighborhood,” and was “talking about shooting anything that moves.” Bailey insisted that the police “come out here and straighten this man out.” Bailey refused to identify himself, explaining that he was “right next to [Murdock] out here” and feared revealing his identity.

Three uniformed police officers, Chambers, Beavers, and Turner, were dispatched to Murdock’s home. None of the officers knew that Murdock was intoxicated or that he was in an agitated state of mind. Only Officer Beavers knew that Murdock’s eyesight was bad, and he did not know “exactly how bad it was.” Beavers also knew that Murdock would get “a little 10-96 (mental subject) occasionally” and would “curse and carry on” when he was drinking.

When the officers arrived on the scene, they found that Murdock’s “porch light was on” but observed no one on the porch. After several minutes had elapsed, the officers observed Murdock come out of his house with “something shiny in his hand.” Murdock sat down on the top step of the porch and placed the shiny object beside him.

Officer Chambers approached Murdock from the side of the porch and told him to “[l]eave the gun alone and walk down the stairs away from it.” Murdock “just sat there.” When Chambers repeated his command, Murdock cursed him. Murdock then reached for the gun, stood up, advanced in Chambers’ direction, and opened fire. Chambers retreated and was not struck.

All three officers returned fire, and Murdock was struck. Lying wounded on the porch, he said several times, “I didn’t know you was the police.” He died from “a gunshot wound of the left side of the chest.” In the investigation which followed, Bailey stated that he was “the hoss that caused the loss.”

In an instruction granted below and not questioned on appeal, the trial court told the jury it should convict Bailey if it found that his negligence or reckless conduct was so gross and culpable as to indicate a callous disregard for human life and that his actions were the proximate cause or a concurring cause of Murdock’s death. Bailey concedes that the evidence at trial, viewed in the light most favorable to the Commonwealth, would support a finding that his actions constituted negligence so gross and culpable as *262to indicate a callous disregard for human life. He contends, however, that he “did not kill Murdock.”

Bailey argues that his conviction can be sustained only if he was a principal in the first degree, a principal in the second degree, or an accessory before the fact to the killing of Murdock. The Attorney General concedes that Bailey was not a principal in the second degree or an accessory before the fact, but maintains that he was a principal in the first degree.

Countering, Bailey argues he was not a principal in the first degree because only the immediate perpetrators of crime occupy that status. Here, Bailey says, the immediate perpetrators of Murdock’s killing were the police officers who returned Murdock’s fire.2 He was in his own home two miles away, Bailey asserts, and did not control the actors in the confrontation at Murdock’s home or otherwise participate in the events that occurred there. Hence, Bailey concludes, he could not have been a principal in the first degree.

We have adopted the rule in this Commonwealth, however, that one who effects a criminal act through an innocent or unwitting agent is a principal in the first degree. Collins v. Commonwealth, 226 Va. 223, 233, 307 S.E.2d 884, 890 (1983) (undercover policewoman ruled innocent agent to collect fees for defendant charged with pandering); Dusenbery v. Commonwealth, 220 Va. 770, 772, 263 S.E.2d 392, 393 (1980) (person who acts through an innocent or unwitting agent is a principal in first degree, but not in rape cases). And, in State v. Benton, 276 N.C. 641, 653, 174 S.E.2d 793, 801 (1970), cited with approval in Collins, the court stated that the innocent-agent rule applies even though the person accused was not present at the time and place of the offense.

Bailey argues that the present case is distinguishable from Collins. There, Bailey says, the accused and the undercover policewoman were working in concert, pursuing a common goal of soliciting and collecting fees for sexual favors; although the policewoman was innocent of the crime of pandering because she had no intent to perform sexual acts, the accused was guilty nevertheless because the fees were collected on his behalf. Here, Bailey asserts, he and the police shared no common scheme or goal. *263Neither, Bailey says, did he share a common goal with Murdock; indeed, “Murdock’s intent was to kill Bailey.”

The question is not, however, whether Murdock was Bailey’s innocent or unwitting agent but whether the police officers who responded to Bailey’s calls occupied that status. And, in resolving this question, we believe it is irrelevant whether Bailey and the police shared a common scheme or goal. What is relevant is whether Bailey undertook to cause Murdock harm and used the police to accomplish that purpose, a question which we believe must be answered affirmatively.

Knowing that Murdock was intoxicated, nearly blind, and in an agitated state of mind, Bailey orchestrated a scenario on the evening of May 21, 1983, whose finale was bound to include harmful consequences to Murdock, either in the form of his arrest or his injury or death. Bailey angered Murdock with accusations of homosexuality concerning Murdock himself as well as his war hero. Bailey then demanded repeatedly that Murdock arm himself with his handgun and wait on his front porch for Bailey to arrive. Bailey also threatened repeatedly that when he arrived at Murdock’s home he would inflict serious injury upon Murdock and even kill him.

Having aroused Murdock’s wrath and having led him to expect a violent confrontation, Bailey made two anonymous telephone calls to the police. In those calls, he falsely reported Murdock’s conduct by saying the latter had threatened to “shoot up” the neighborhood and to shoot anything that moved, when Murdock had not made such threats. Bailey falsified his own ability to observe Murdock’s conduct by telling the police that he, Bailey, was “right next to [Murdock] out here,” when he was actually two miles away. And Bailey neglected to tell the police that Murdock was intoxicated and blind and in an agitated state of mind.

From a factual standpoint, it is clear from the sum total of Bailey’s actions that his purpose in calling the police was to induce them to go to Murdock’s home and unwittingly create the appearance that Bailey himself had arrived to carry out the threats he had made over the radio. And, from a legal standpoint, it is clear that, for Bailey’s mischievous purpose, the police officers who went to Murdock’s home and confronted him were acting as Bailey’s innocent or unwitting agents.

But, Bailey argues, he cannot be held criminally liable in this case unless Murdock’s death was the natural and probable result *264of Bailey’s conduct. Bailey maintains that either Murdock’s own reckless and criminal conduct in opening fire upon the police or the officers’ return fire constituted an independent, intervening cause absolving Bailey of guilt.

We have held, however, that “[a]n intervening act which is reasonably foreseeable cannot be relied upon as breaking the chain of causal connection between an original act of negligence and subsequent injury.” Delawder v. Commonwealth, 214 Va. 55, 58, 196 S.E.2d 913, 915 (1973) (defendant lost control of vehicle while racing and struck pedestrian; striking of defendant’s vehicle by other car not intervening cause). Here, under instructions not questioned on appeal, the jury determined that the fatal consequences of Bailey’s reckless conduct could reasonably have been foreseen and, accordingly, that Murdock’s death was not the result of an independent, intervening cause but of Bailey’s misconduct. At the least, the evidence presented a jury question on these issues. See id.

Finally, Bailey maintains that his conviction is improper in light of our decision in Wooden v. Commonwealth, 222 Va. 758, 284 S.E.2d 811 (1981). There, the accused participated in a robbery with accomplices Anthony and Frye. The victim shot and killed Anthony, and Frye then shot and killed the victim. The accused was convicted of felony-murder for both killings. We reversed the conviction for the killing of the co-felon. We said that because malice is an essential element of felony-murder and because there was no evidence that the victim killed the co-felon with malice, there was no malice in the death of the co-felon that could be imputed to the accused under the felony-murder rule. Accordingly, we held that “a criminal participant in a felony may not be convicted of the felony-murder of a co-felon killed by the victim of the initial felony.” Id. at 765, 284 S.E.2d at 816.

Reading our opinion to say that we reversed in Wooden because the killing of the co-felon was a justifiable homicide, Bailey argues that we should take the same action here because “Murdock’s death was [also] a justifiable homicide.” As the Attorney General points out, however, we did not reverse in Wooden because the victim’s killing of the co-felon constituted a justifiable homicide but because malice, an essential element of a murder prosecution, was lacking. In this case, a manslaughter prosecution, proof of malice is not required, and, moreover, there is no lack of *265proof of any of the elements essential to Bailey’s conviction. Accordingly, we will affirm the conviction.

Affirmed.