People v. Dykhouse

345 N.W.2d 150, 418 Mich. 488

• Court: Michigan Supreme Court
• Decided: March 2, 1984
• Docket: 68246, (Calendar No. 8)
• Status: Published

Opinions

Brickley, J.

This case requires us to review the propriety of the first-degree murder instructions in CJI 16:2:01.¹ We hold that those instructions, although somewhat imprecise, do not contain error prejudicial to the defendant.

Defendant was convicted of first-degree premeditated murder, MCL 750.316; MSA 28.548, and assault with intent to commit murder, MCL 750.83; MSA 28.278. He was sentenced to terms of life imprisonment and thirty to sixty years imprisonment, respectively. These convictions arose out of events on February 25, 1979, when defendant, after an evening of heavy drinking, returned home to find that his wife was not there. Armed with a rifle, he went to the home of his wife’s paramour. He found his wife crouching in a closet and killed her with a single shot through the neck. He seriously wounded his wife’s paramour with a shot in the back.

In the Court of Appeals, defendant, inter alia, argued that the trial court’s jury instructions failed to x adequately apprise the jury that the defendant must have had a specific intent to kill to be found guilty of first-degree murder. On the authority of People v Milton, 81 Mich App 515; 265 NW2d 397 (1978), modified 403 Mich 821 (1978), the Court of Appeals agreed with the defendant and reduced his conviction of first-degree murder to second-degree murder. We granted the prosecutor’s application for leave to appeal. Defendant’s cross-application for leave to appeal was ordered held in abeyance pending decision on the issue raised by the prosecutor. 414 Mich 867 (1982).

What was known at common law as the crime of murder, and what is now known under our statutory scheme as the crime of second-degree murder, MCL 750.317; MSA 28.549, is committed only if the actor entertains one of three possible intents: the intent to kill, the intent to inflict great bodily harm, or the intent to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm is the probable result. People v Aaron, 409 Mich 672, 713-714; 299 NW2d 304 (1980). In contrast, the statutory crime of first-degree premeditated murder is committed only if the defendant entertains the intent to kill. People v Garcia, 398 Mich 250, 259; 247 NW2d 547 (1976). In addition, the intent to kill in first-degree premeditated murder must be deliberate and premeditated. People v Hansen, 368 Mich 344, 351; 118 NW2d 422 (1962).²

In Milton, supra, p 518, the defendant’s conviction of first-degree premeditated murder was reversed because the trial court instructed that first-degree premeditated murder could be committed if the defendant "either intended to kill the deceased or * * * consciously created a very high degree of risk of death to another with knowledge of its probable consequences”. Of course, such an instruction is clearly erroneous. A "very high risk of death” intent is insufficient for first-degree premeditated murder. The defendant must have an actual intent to kill.

In the present case, defendant contends, and the Court of Appeals found, that an error similar to that in Milton occurred.³ Here, the trial court’s instruction included the phrases, "[fjirst-degree and second-degree murder are the same crime, except that first-degree murder has the additional elements of premeditation and deliberation, that is, the defendant must have premeditated and deliberated his intent to kill” and "[k]eep in mind that all of the elements of second-degree murder are necessary to prove first-degree murder”. Defendant argues that because these phrases were included in the instructions the jury could have concluded that a "very high risk of death” intent was sufficient to convict the defendant of first-degree premeditated murder. Viewing the instructions to the jury in their entirety, as we must, People v Dye, 356 Mich 271, 279; 96 NW2d 788 (1959), cert den 361 US 935 (1960), we disagree.

The trial court’s instructions were taken substantially from CJI 16:2:01:⁴

"The defendant is charged in Count I with the crime of murder in the first degree. The law as it applies to this case states that all wilful, deliberate, and premeditated murder shall be murder of the first degree. The defendant pleads not guilty.

"There are two kinds of murder, first-degree and second-degree, and you will be instructed as to both. Murder of either degree is the killing of one person by another with malice. Malice is a term with special meaning in the law. Malice means that the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not lessen the crime.

"First-degree and second-degree murder are the same crime, except that first-degree murder has the additional elements of premeditation and deliberation, that is, defendant must have premeditated and deliberated his intent to kill.

"You will be instructed on murder of the second degree. Keep in mind that all of the elements of second-degree murder are necessary to prove first-degree murder.

"To establish second-degree murder, the prosecution must prove each of the following elements beyond a reasonable doubt:

"First, that the deceased, Judy Ann Dykhouse, died on or about February 25, 1979, within the County of Kent and City of Grand Rapids.

"Second, that her death was caused by an act of the defendant, that is, that Judy Ann Dykhouse died as the result of the defendant shooting her with a rifle.

"Third, if you find that the death was caused by the defendant, you must determine whether the defendant is guilty of any crime. The killing of a human being by another may be entirely innocent. It is not the act of killing in itself which makes it a crime, but the state of mind with which it is done.

"A killing is not murder if it occurs under circumstances which make the killing the lesser crime of manslaughter.

"Fourth, for murder you must find that the defendant consciously and knowingly performed the act which caused death. The defendant must have either intended to kill, that is, he must have done the act intending that it result in death or in great and serious bodily injury, or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death.

"The degree of risk for murder must be so reckless and wrongful as to amount to a criminal purpose aimed against a person’s life, and the defendant must have been conscious of that risk.

"For murder of the first degree, the prosecutor must prove beyond a reasonable doubt the four elements of second-degree murder which have been described to you. In addition, he must prove beyond a reasonable doubt the fifth element, which raises the crime to first-degree murder. That fifth element is that the death was the wilful result of a premeditated, deliberate intent to kill.

"Premeditated means thought out beforehand or designed or planned. The killing must be the result of real and substantial reflection.

"Deliberate means that the defendant must have considered the pros and cons of that design and have measured and chosen his actions. The intent must be formed by a mind that is free from undue excitement. This excludes acts done on a sudden impulse without reflection.

"Wilful means the intent to take a life.

"For first-degree murder, there must be such a lapse of time as would give the mind time to think about the purpose and intent of the killing. The law does not specify the length of that period, and it will vary with individuals and circumstances. The test is not the duration of time, but the extent of the reflection. There must be sufficient time to afford a reasonable man time to subject his actions to a second look.

"If you find the defendant guilty of murder, it is your duty to state in your verdict whether he is guilty of murder of the first degree or guilty of the lesser offense of murder of the second degree.

"Now, when a certain intent is a necessary element in a crime, the crime cannot have been committed when the intent did not exist. Intent is a decision of the mind to knowingly do an act with a conscious, fully-formed objective of accomplishing a certain specific result. There can be no crime of first-degree murder under our law where there is no intent to kill, and the burden rests upon the prosecution to show beyond a reasonable doubt that the defendant, at the time of doing the alleged act, had that wrongful intent.”⁵ (Emphasis added.)

Viewing the above instructions as a whole, we find no error. The jury was specifically instructed that only an intent to kill would suffice to convict the defendant of first-degree premeditated murder. The jury was so instructed four times. Even a very literal view of the precise language complained of reveals no error harmful to the defendant. Unlike the instructions in Milton, the instructions here did not tell the jury that the defendant could be found guilty of first-degree premeditated murder merely on finding a "very high risk of death” intent. The instructions in the present case did inform the jury that a "very high risk of death” intent sufficed for second-degree murder and that second-degree murder and first-degree premeditated murder "are the same crime, except that first-degree [premeditated] murder has * * * additional elements”. But those additional elements, the jury was informed, were a premeditated and a deliberate intent to kill. If, in fact, the jury literally followed the trial court’s instructions and found that defendant entertained a "very high risk of death” intent such that he could be found guilty of second-degree murder, it would still have to find a specific intent to kill before concluding that first-degree murder had been committed. Defendant certainly cannot complain if the instructions given allowed the jury to conclude that he entertained both the intent to create a high risk of death and the specific intent to kill.

That is not to say that the instructions given in this case, and by necessary implication CJI 16:2:01, are perfect. These instructions risk creating the problem in Milton unless very specific directions are given to make clear that first-degree premeditated murder requires an actual intent to kill. Indeed, when the particular facts of a case indicate that the defendant could have possessed both an intent to kill and another of the possible intents for second-degree murder, an instruction which separately defines each crime is advisable.

Viewed in their entirety, the instructions before us are not erroneous. We, therefore, reverse the decision of the Court of Appeals. The cause is remanded to the Court of Appeals for plenary consideration of the issues raised in defendant’s cross-application for leave to appeal to this Court.

Reversed and remanded.

Williams, C.J., and Ryan and Boyle, JJ., concurred with Brickley, J.

Cavanagh, J.

Defendant was convicted by a jury of first-degree premeditated murder, MCL 750.316; MSA 28.548, and of assault with intent to commit murder, MCL 750.83; MSA 28.278. He was concurrently sentenced to the statutorily mandated term of life imprisonment for the murder conviction and to a prison term of from 30 to 60 years for the assault conviction. The Court of Appeals reversed defendant’s conviction of murder,¹ and we granted the prosecution’s application for leave to appeal² in order to examine the jury instructions regarding first-degree and second-degree murder.

I

In the spring of 1978, defendant’s nine-year marriage began to disintegrate. At that time, his wife began frequent evening sojourns to neighborhood taverns without her husband. Shortly thereafter, she began an extramarital affair. Defendant learned of the affair, and he and his wife attempted a reconciliation. Nevertheless, while continuing to live with defendant, she also continued her affair. On February 24 and 25, 1979, the climactic events occurred which brought defendant’s marriage to a tragic conclusion.

After an evening of extensive drinking with his wife’s relatives, defendant returned home. His wife was not there. Defendant took a rifle and went to the house of his wife’s paramour. Defendant discovered his wife hiding in an upstairs closet, killed her instantly by a single shot, and immediately pursued his wife’s paramour. The latter was seriously wounded by a shot which struck him in the back. Within minutes after fleeing the scene, defendant was apprehended by the police. He was charged with first-degree murder and assault with intent to commit murder.

II

At trial, the central issue was defendant’s intent at the time of the shootings. During instruction of the jury, the trial judge essentially combined the instructions on first-degree and second-degree murder. Indeed, that part of the charge substantially comported with CJI 16:2:01.³ However, defense counsel objected, inter alia, to that specific instruction because, prior to trial, he had submitted a lengthy set of proposed jury instructions.⁴ Those instructions essentially followed the Criminal Jury Instructions but, where they did not, as when describing the degrees of murder, detailed explanations for the changes, with citation of authority, were provided.⁵

Shortly after beginning its deliberations, the jury requested "an explanation between first- and second-degree murder, the difference”. Thereupon, the trial judge repeated the instruction previously given. Less than an hour later, defendant was found guilty as charged.

In his appeal of right to the Court of Appeals, defendant raised eight issues, including a challenge to the murder instructions. In a short per curiam opinion, the Court of Appeals found that:

"Only one issue merits discussion.

"The trial judge instructed the jury that in order to find a conviction of murder: 'The defendant must have either intended to kill, that is, he must have done the act intending that it result in death or in great and serious bodily injury, or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death.’ This instruction was erroneous. People v Milton, 81 Mich App 515; 265 NW2d 397 (1978), modified on other grounds 403 Mich 821 (1978).

"The case is remanded to the trial court for the entry of a judgment of conviction of the offense of second-degree murder and for resentencing. If the prosecution is persuaded that the ends of justice would better be served by a retrial on the charge of first-degree murder, upon notification to the trial court before resentencing, the trial court shall vacate the judgment and conviction and grant a new trial on the charge that the defendant committed the crime of first-degree murder.

"Reversed and remanded.”

After the Court of Appeals denied both parties’ applications for rehearing, we granted the prosecution’s application for leave to appeal, but ordered defendant’s delayed application for leave to appeal as cross-appellant held in abeyance pending disposition of the granted application.

Ill

Homicide is the killing of one human being by another. People v Austin, 221 Mich 635, 644; 192 NW 590 (1923); People v Allen, 39 Mich App 483, 501; 197 NW2d 874 (1972) (Levin, P.J., dissenting), adopted 390 Mich 383; 212 NW2d 21 (1973). It can be either criminal or non-criminal. Allen, supra; People v Aaron, 409 Mich 672, 714; 299 NW2d 304 (1980). Murder, i.e., an unlawful killing, is a homicide committed with malice aforethought. Aaron, supra; People v Garcia, 398 Mich 250, 258; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977). Malice aforethought has been defined as "the intention to kill, actual or implied, under circumstances which do not constitute excuse or justification or mitigate the degree of the offense to manslaughter”. People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971), lv den 385 Mich 775 (1971). See, also, People v Haack, 396 Mich 367, 375-376; 240 NW2d 704 (1976). The definition of murder is derived from the common law,⁶ People v Scott, 6 Mich 287, 292-293 (1859), and this state’s statutes proscribing murder have never contained that definition.⁷ Aaron, supra, p 713; Austin, supra; People v Doe, 1 Mich 451, 457 (1850). Rather, the statutes have merely classified the types of murder by degree.⁸ The current statutes illustrate that classification:

"Murder which is perpetrated by means of poison, lying in wait, or other wilful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life.” MCL 750.316; MSA 28.548.

"All other kinds of murder shall be murder of the second degree, and shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same.” MCL 750.317; MSA 28.549.

As refined by this Court,⁹ the elements of common-law murder are: (1) a death, (2) caused by an act of the defendant, (3) absent circumstances of justification,¹⁰ excuse,¹¹ or mitigation,¹² (4) done with an intent to kill, an intent to inflict great bodily harm, or an intent to create a very high risk of death with the knowledge that the act probably will cause death or great bodily harm.¹³ People v Hansen, 368 Mich 344, 350-351; 118 NW2d 422 (1962). Common-law murder, as evolved, is what has come to be known as second-degree murder. Allen, supra, 39 Mich App 501-503; People v Carter, 395 Mich 434, 437; 236 NW2d 500 (1975), reh den 395 Mich 923 (1976).

On the other hand, first-degree premeditated¹⁴ murder is said to be a creature of statute and to include all of the elements of second-degree murder, plus an additional one, i.e., either the intent was premeditated and deliberated or the death occurred during the perpetration or attempted perpetration of one of the statutorily enumerated felonies. Carter, supra; Allen, supra; Morrin, supra, p 324.

Nevertheless, stating that first-degree murder is second-degree murder plus premeditation and deliberation is not entirely accurate. Indeed, the intent element of second-degree murder varies from that of first-degree murder. In addition to the obvious distinction that second-degree murder is a general-intent crime while first-degree murder is one of specific intent, Garcia, supra, p 259; People v Langworthy, 416 Mich 630, 645-646, 652; 331 NW2d 171 (1982), there exists a more subtle distinction. Specifically, the intent required to commit second-degree murder can consist of any one of the following: (1) an intent to kill, (2) an intent to inflict great bodily harm, or (3) an intent to create, i.e., knowingly creating, a very high risk of death with the knowledge that the act probably will cause death or great bodily harm,¹⁵ On the other hand, the intent required to commit first-degree murder can only consist of an intent to kill. Langworthy, supra, pp 650-651; Scott, supra, p 294; People v Potter, 5 Mich 1, 8 (1858).

As can be seen, although both degrees of murder can be based on an intent to kill, the types of intent required to commit first-degree and second-degree murder are not identical, i.e., intentions to inflict great bodily harm and to create a very high risk of death with the knowledge that the act probably will cause death or great bodily harm, applicable when discussing the intent element of second-degree murder, have no place in the definition of first-degree murder. Consequently, since the instructions in this case blurred that distinction and would have permitted the jury to find first-degree murder premised on either an intent to inflict great bodily harm or an intent to create a very high risk of death with knowledge that the act probably would cause death or great bodily harm, we would hold that they were erroneous. See, e.g., People v Milton, 81 Mich App 515, 518; 265 NW2d 397 (1978), modified on other grounds 403 Mich 821 (1978).

IV

In summary, it was error for the trial judge in this case to instruct as he did on the intent elements of first-degree and second-degree murder. Further, since the central issue at trial was defendant’s intent at the time of the shootings and since both parties presented substantial evidence on that issue, we cannot say that the error was harmless beyond a reasonable doubt.¹⁶ Cf. People v Burgess, 96 Mich App 390; 292 NW2d 209 (1980), lv den 409 Mich 912 (1980). Finally, while the Court of Appeals ordered that "a judgment of conviction * * * of second-degree murder” be entered, we would not sanction that remedy at this time.¹⁷ Indeed, the possible merit in defendant’s other issues may render that remedy inappropriate and necessitate a new trial. Consequently, in lieu of granting defendant’s delayed application for leave to appeal as cross-appellant, we would remand this case to the Court of Appeals for plenary consideration of defendant’s remaining issues.

Kavanagh and Levin, JJ., concurred with Cavanagh, J.

1 Although this Court has "urged” the use of the Criminal Jury Instructions, Administrative Order 1977-1, 399 Mich lxxii, our urging in no way indicates approval of any particular instruction. Trial judges should not hesitate to modify or disregard the CJI when presented with a clearer or more accurate instruction.

2 MCL 750.316; MSA 28.548 provides:

"Murder which is perpetrated by means of poison, lying in wait, or other wilful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life.”

Of course, first-degree murder can be committed notwithstanding the lack of premeditation and deliberation. The murder of another during the commission of one of the crimes enumerated in MCL 750.316; MSA 28.548 also is first-degree murder. People v Aaron, 409 Mich 672; 299 NW2d 304 (1980). This so-called felony-murder portion of our first-degree murder statute has no application in the present case. We used the phrase “first-degree premeditated murder” in this opinion to make clear that we are not dealing with the so-called felony-murder portion of the statute.

3 The Court of Appeals opinion is somewhat cryptic as to the precise ground for reversal. The Court stated:

"The trial judge instructed the jury that in order to find a conviction of murder 'the defendant must have either intended to kill, that is, he must have done the act intending that it result in death or in great and serious bodily injury, or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death.’ This instruction was erroneous. People v Milton, 81 Mich App 515; 265 NW2d 397 (1978), modified on other grounds 403 Mich 821 (1978).”

The instructional language quoted by the Court of Appeals is from the trial court’s general instructions on murder and was taken from the then applicable Criminal Jury Instructions. This language, while not incorrect as to second-degree murder, standing alone is insufficient for first-degree murder. The trial court did not suggest that this part of its instructions would support first-degree murder. Even defendant states that this language is "not legally incorrect” as a general definition of murder. We note, however, that defendant did not argue below and does not argue here that the phrase "intended to kill, that is, he must have done the act intending that it result in death or in great and serious bodily injury”, contaminated the later first-degree murder "intent to kill” language.

4 At the time of defendant’s trial, CJI 16:2:01 provided:

"(1) The defendant is charged with the crime of murder of the first degree. The law, as it applies to this case, states that all wilful, deliberate and premeditated murder shall be murder of the first degree. The defendant pleads not guilty.

"(2) There are two kinds of murder, first degree and second degree, and you will be instructed as to both. [Murder of either degree is the killing of one person by another with malice. Malice is a term with special meaning in the law. Malice means that the defendant intended to kill or that he knowingly created a very high risk of death with knowledge that it probably would result in death, and that he did so under circumstances which did not justify, excuse or lessen the crime.]

"(3) First-degree and second-degree murder are the same crime, except that first-degree murder has the additional elements of premeditation and deliberation; that is, the defendant must have premeditated and deliberated his intent to kill.

"(4) You will first be instructed on murder of the second degree. Keep in mind that all of the elements of second-degree murder are necessary to prove first-degree murder.

"(5) To establish second-degree murder, the prosecution must prove each of these following elements beyond a reasonable doubt:

"(6) First, that the deceased died on or about [date], within the [County of_/City of Detroit],

"(7) Second, that his death was caused by an act of the defendant; that is, that [name deceased] died as the result of [state the alleged act causing death]

"(8) Third, if you find that the death was caused by the defendant, you must determine whether the defendant is guilty of any crime. The killing of a human being by another may be entirely innocent. It is not the act of killing in itself which makes it a crime, but the state of mind with which it is done.

"(9) A killing is not murder if it is justified, excused or [mitigated/if it occurs under circumstances which make the killing the lesser crime of manslaughter.]

"(10) Fourth, for murder you must find that the defendant consciously and knowingly performed the act which caused death. The defendant must have either intended to kill, that is, he must have done the act intending that it result in death or in great and serious bodily injury, or he must have knowingly created a very high risk of death with the knowledge that it probably would cause death.

"(11) The degree of risk for murder must be so reckless and wrongful as to amount to a criminal purpose aimed against a person’s life, and the defendant must have been conscious of that risk.

"(12) For murder of the first degree, the prosecutor must prove beyond a reasonable doubt the four elements of second-degree murder which have been described to you. In addition, he must prove beyond a reasonable doubt the fifth element, which raises the crime to first-degree murder.

"(13) Fifth, that the death was the wilful result of a premeditated, deliberate intent to kill.

"(14) Premeditated means thought out beforehand or designed or planned. [The killing must be the result of real and substantial reflection.]

"(15) Deliberate means that the defendant must have considered the pros and cons of that design and have measured and chosen his actions. The intent must be formed by a mind that is free from undue excitement. This excludes acts done on a sudden impulse without reflection [or as a result of a sudden fight],

"(16) Wilful means intentional.

"(17) For first-degree murder, there must be such a lapse of time as would give the mind time to think about the purpose and intent of the killing. The law does not specify the length of that period, and it will vary with individuals and circumstances. The test is not the duration of time but the extent of the reflection. There must be sufficient time to afford a reasonable man time to subject his actions to a second look.

"(18) If you find the defendant guilty of murder, it is your duty to state in your verdict whether he is guilty of murder of the first degree or guilty of the lesser offense of murder of the second degree.”

CJI 16:2:01 has since been amended to read:

"(1) The defendant is charged with the crime of murder of the first degree. The law, as it applies to this case, states that all wilful, deliberate and premeditated murder shall be murder of the first degree. The defendant pleads not guilty.

"(2) There are two kinds of murder, first degree and second degree, and you will be instructed as to both. Murder is the killing of one person by another, with a certain mental element. For murder, the defendant must have intended to kill, have intended to do great bodily harm, or have wilfully and wantonly disregarded the strong and plain likelihood that death would result, and he must have done so under circumstances which did not justify, excuse or lessen the crime.

"(3) You will be first instructed on murder of the second degree. Keep in mind that all of the elements of second-degree murder are necessary to prove first-degree murder.

"(4) To establish second-degree murder, the prosecution must prove each of these following elements beyond a reasonable doubt:

"(5) First, that the deceased died on or about [date], within the [County of-/City of Detroit].

"(6) Second, that his death was caused by an act of the defendant; that is, that [name deceased] died as the result of [state the alleged act causing death]

"(7) Third, if you find that the death was caused by the defendant, you must determine whether the defendant is guilty of any crime. The killing of a human being by another may be entirely innocent. It is not the act of killing in itself which makes it a crime, but the state of mind with which it is done.

"(8) A killing is not murder if it is justified or excused. [Neither is it murder if it occurs under circumstances which make the killing the lesser crime of manslaughter [or (some other lesser included offense)].]

"(9) Fourth, for murder you must find that the defendant intended to kill, that he intended to do great bodily harm, or that he committed a wanton and wilful act the natural tendency of which was to cause death or great bodily harm. There must be a strong and plain likelihood that death or serious bodily harm will result, and the defendant must have wilfully and wantonly disregarded the knowledge of the possible consequences of death or serious injury.

"(10) In this case the prosecution is charging first-degree murder. To establish first-degree murder the prosecution must prove each of the following elements beyond a reasonable doubt:

"(11) That the defendant intended to kill [name deceased];

"(12) That the intent to kill was premeditated. Premeditated means thought out beforehand or designed or planned;

"(13) That the killing was deliberate. Deliberate means that the defendant must have considered the pros and cons of that design and have measured and chosen his actions. The intent must be formed by a mind that is free from undue excitement. This excludes acts done on a sudden impulse without reflection [or as a result of a sudden fight].

"(14) For first-degree murder, the killing must be the result of real and substantial reflection. There must be such a lapse of time as would give the mind time to think about the purpose and intent of the killing. The law does not specify the length of that period, and it will vary with individuals and circumstances. The test is not the duration of time but the extent of the reflection. There must be sufficient time to afford a reasonable man time to subject his actions to a second look.

"(15) If you find the defendant guilty of murder, it is your duty to state in your verdict whether he is guilty of murder of the first degree or guilty of the lesser offense of murder of the second degree.”

5 This paragraph is taken substantially from CJI 3:1:16.

1 Unpublished opinion per curiam of the Court of Appeals, decided September 15,1981 (Docket No. 50984).

2 414 Mich 867 (1982).

3 CJI 16:2:01, at the time of defendant’s trial, read as set forth in fn 3 of the majority opinion, ante.

4 Defense counsel objected to the use of CJI 16:2:01 as follows:

"[By Mr. Kolenda:] With regard to the instructions that the defendant requested on pages 17 through 27 of the pre-deliberation instructions submitted by the defendant, there were definitions of the crimes of first- and second-degree murder and voluntary manslaughter. I believe firmly that they properly state the law comparably to those stated in the standard instructions. They are organized differently. I simply believe, as I have expressed to the court several times, that the attempt of the standard instructions to instruct simultaneously on those three crimes and tell the jury what the difference is is terribly and unnecessarily confusing.

"The proposed instructions also related the abstract law which was correctly stated to the facts of this case. For example, talking about repeated acts of provocation, finding a spouse in the act of adultery is a typical provocation, and manslaughter, and things of that sort, and those proposed instructions also explained all the differences between the crimes, something that our Supreme Court [sic] has recently, in People v Ray [56 Mich App 610; 224 NW2d 735 (1974)], certainly suggested is an appropriate thing to do.

"On pages 31 and 32 of the proposed instructions was a detailed comparison of the elements of the various crimes for the jury, leading them through what are the differences between the crimes they have to consider, and as I have indicated, in People v Ray, the Supreme Court has certainly suggested that that is appropriate.”

The trial judge did not respond to the foregoing objection.

5 Explaining the proposed murder instructions, defense counsel wrote:

"The major changes represented by my proposed instructions are found in the definition of the offenses which the jury can consider. Obviously, I have not modified any of the law reflected in those instructions. Rather, I have reorganized the instructions. In my opinion, the CJI instructions on first-degree and second-degree murder are unnecessarily confusing. As a lawyer, I have difficulty understanding them. I am sure a jury would have difficulty. As Judge Cardozo said about the distinctions between first- and second-degree murder, 'The present distinction is so obscure that no jury hearing it for the first time can be fairly expected to assimilate and understand it. I am not at all sure that I understand it myself after trying to apply it for many years and after diligent study of what has been written in the books.’ The CJI’s attempt to conserve space by discussing jointly first- and second-degree, only exacerbates that problem. I have attempted to simplify that situation by explaining what is first-degree murder, and then explaining second-degree murder, with an explanation of the difference. My proposed murder instructions are virtually identical to those given by Judge Boucher in People v Rondon, Kent County Circuit Court Case No 75-19259-FY.”

6 Indeed, the common law did not divide the crime of murder into degrees. Garcia, supra. That development came about by statute and was "for the purpose of graduating the punishment”. People v Doe, 1 Mich 451, 457 (1850).

7 First-degree murder: RS 1838, pt 4, tit 1, ch 3, § 1; RS 1846, ch 153, § 1; 1857 CL 5711; 1871 CL 7510; How Stat 9075; 1897 CL 11470; 1915 CL 15192; 1929 CL 16708, amended by 1931 PA 328, effective September 18, 1931; 1948 CL 750.316, amended by 1969 PA 331, effective March 20, 1970; MCL 750.316; MSA 28.548, amended by 1980 PA 28, effective March 7, 1980.

Second-degree murder; RS 1838, pt 4, tit 1, ch 3, § 1; RS 1846, ch 153, § 2; 1857 CL 5712; 1871 CL 7511; How Stat 9076; 1897 CL 11471; 1915 CL 15193; 1929 CL 16709, amended by 1931 PA 328, effective September'18, 1931; 1948 CL 750.317; MCL 750.317; MSA 28.549.

8 The murder statutes have remained virtually unchanged since their inception in 1838. Indeed, changes throughout the years have been mainly of the stylistic and grammatical variety. The major substantive changes have dealt with the punishment to be imposed and with the felony-murder portion of the first-degree murder statute, i.e., refining the enumerated felonies.

9 Early common-law definitions did not define the crime of murder with a negative element, i.e., absent circumstances of justification, excuse, or mitigation:

"Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in the peace of the state, with malice prepense or aforethought, either express or implied.” People v Potter, 5 Mich 1, 6 (1858). See, also, Aaron, supra, p 713; Scott, supra, p 292; Maher v People, 10 Mich 212, 218 (1862).

10 Justifiable homicide is that which is authorized or commanded by law, e.g., where the homicide is the result of a soldier acting in battle, a police officer acting reasonably in the course of his or her duties, a person acting in self-defense or in the defense of others, or a person executing a death sentence.

11 Excusable homicide is that in which "the death is the result of an accident and the actor [is] not criminally negligent”. Morrin, supra, p 310.

12 The common-law crimes of voluntary and involuntary manslaughter are "the unlawful killing of another without legal justification or excuse and are distinguished from the higher crimes of murder by the absence of malice”. People v Townes, 391 Mich 578, 589; 218 NW2d 136 (1974). Circumstances which reduce or mitigate the crime of murder to manslaughter, i.e., which negate the malice or intent necessary for murder, include: (1) adequate provocation causing commission of a killing in the sudden heat of passion, (2) unjustifiable self-defense, (3) the performance of an act in a grossly or criminally negligent manner, and (4) the performance of an act not naturally tending to cause great bodily harm. See, generally, Townes, supra, pp 589-591; Morrin, supra, p 311, fn 7.

13 As defined at common law, the term "malice aforethought” essentially contains two elements: (1) the intention to kill, either express or implied, (2) absent circumstances of justification, excuse, or mitigation. See Perkins, Criminal Law (2d ed), p 49. See, also, People v Haack, 396 Mich 367, 375-376; 240 NW2d 704 (1976). Thus, the negative element has always been present and, under federal and state constitutional due process guarantees, when a defendant introduces evidence that circumstances of justification, excuse, or mitigation exist, must be proved by the prosecution beyond a reasonable doubt.

Further, over the years, this Court’s pronouncements can fairly be interpreted as delineating the positive intent to kill requirement of malice aforethought from the negative absence of circumstances requirement, i.e., the positive state of mind requirement has come to be viewed as separate, although sometimes still identified by the term "malice aforethought”, while the negative element has taken on a separate identity not referred to by that term. Whether that delineation takes the form of two distinct elements or of one element with two sub-elements should have no evidentiary significance. Indeed, as noted previously, unless the defendant introduces evidence that circumstances of justification, excuse, or mitigation exist, the prosecution, in order to obtain a conviction of murder in either degree, need not prove beyond a reasonable doubt the absence of those circumstances.

Consequently, in order to clear up any confusion caused by this Court’s past decisions and because of our recent express disapproval of the terms "malice” and "malice aforethought”, People v Woods, 416 Mich 581, 622-629; 331 NW2d 707 (1982), the elements of common-law murder should be viewed as set forth above.

14 When referring to first-degree murder throughout the remainder of this opinion, we are referring only to first-degree premeditated murder and express no opinion as to the applicability of the analysis to first-degree felony murder. For a discussion of the latter, see People v Aaron, supra.

15 This latter type of intent forms the basis of what is historically known as "depraved heart murder”. LaFave & Scott, Criminal Law, § 70, pp 541-545. It has been alternatively stated as: (1) the intentional commission of an act whose natural tendency is to cause death or great bodily harm, Haack, supra, p 375; (2) the intentional setting in motion of a force likely to cause death or grievous bodily harm, Guilty Plea Cases, 395 Mich 96, 131; 235 NW2d 132 (1975), reh den 395 Mich 912 (1975), 398 Mich 951 (1976), cert den sub nom Sanders v Michigan, 429 US 1108 (1977); and (3) the wanton and wilful disregard of the likelihood that the natural tendency of one’s behavior is to cause death or great bodily harm. Aaron, supra, p 714, quoting LaFave & Scott, Criminal Law, p 528. See, also, Langworthy, supra, pp 650-651; Woods, supra, p 627. Similarly, recently revised CJI 16:2:01 describes this type of intent as "wilfully and wantonly disregarding] the strong and plain likelihood that death would result” and as the commission of:

"a wanton and wilful act the natural tendency of which was to cause death or great bodily harm. There must be a strong and plain likelihood that death or serious bodily harm will result, and the defendant must have wilfully and wantonly disregarded the knowledge of the possible consequences of death or serious injury.”

However, the foregoing, in addition to perpetuating the error of its predecessor noted below, might also be read as combining two distinct types of intent relevant to second-degree murder, i.e., the knowing creation of a very high risk of death either: (1) with knowledge of the probable consequences, or (2) with knowledge only of the attendant circumstances. The latter intent merely requires a consciousness of the act from which a reasonable person, not necessarily the actor, could infer the consequences. That has never formed a basis for second-degree murder in this state, although it does so in other jurisdictions. Rather, Michigan requires that the actor have intended or consciously done the act which created the very high risk of death and that the actor have been aware or have had knowledge of the probable consequences of his or her act. See, e.g., Woods, supra, pp 587, 610-613; Maher, supra, p 219; Potter, supra, p 7; People v Wright, 408 Mich 1, 19-26; 289 NW2d 1 (1980); People v Pepper, 389 Mich 317, 321; 206 NW2d 439 (1973); Wellar v People, 30 Mich 16, 19 (1874).

Consequently, we must disapprove the use of CJI 16:2:01 in both its present and previous forms. Indeed, we again remind both bench and bar that the Criminal Jury Instructions published by the Institute of Continuing Legal Education have never been adopted or approved for use by this Court. Rather, those instructions should be viewed as research tools which do not necessarily contain an accurate statement of the law.

Finally, we note that nothing in this opinion precludes a properly instructed jury, or a trial judge in a bench trial, from inferring, on the basis of evidence presented at trial, including evidence of the defendant’s conduct, that the defendant possessed the requisite intent to commit the crime charged or a lesser included offense.

16 Some of the defenses raised at trial called into question the presence of an intent to kill. For example, the claim of insanity necessarily implied that defendant lacked the requisite intent to commit first-degree murder. Similarly, defendant’s claim of voluntary manslaughter did not concede the presence of an intent to kill. Indeed, although the intent element of voluntary manslaughter can be predicated on an intent to kill, an intent to kill is not necessary. Rather, the intent element of voluntary manslaughter can be predicated on any one of the intents which can comprise second-degree murder.

Finally, as noted in the recitation of the facts, it is significant that the jury, after commencing its deliberations, requested "an explanation between first- and second-degree murder, the difference” and then convicted defendant of the higher offense. Typically, we find harmless error when, after an erroneous instruction, the jury convicts a defendant of a lesser included offense. This is not such a case.

17 For a discussion of when such a remedy is appropriate, see People v Hoffmeister, 394 Mich 155, 161-162; 229 NW2d 305 (1975), reh den 394 Mich 944 (1975).