People v. Aaron

Ryan, J.

(concurring in part, dissenting in part). I concur in the results reached by Justice Fitzgerald in these cases but write separately to express my disagreement with the reasoning employed in his opinion.

I

In Thompson 1 and Wright, 2 we granted leave to appeal limited to the following issue:

"Whether the Court of Appeals erred in reversing the murder conviction in this case because of the lack of an instruction on a requirement for finding malice in a felony-murder situation.”

In Aaron, 3 leave was granted limited to this issue:

*735 "Whether, in light of MCL 750.316 and 750.317; MSA 28.548 and 28.549, a defendant charged with felony murder may be convicted of second-degree murder as a lesser included offense if proof of malice is unnecessary to conviction of felony murder yet is necessary to conviction of second-degree murder.”

Proper resolution of the stated issues requires us to determine what the terms "murder” and "malice” mean in our jurisprudence, and to determine what the common-law felony-murder rule is, and how it operates.

II

A. Murder

I agree with the definition of murder which appears in Justice Fitzgerald’s opinion and repeat it here for the reader’s convenience:

" '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 (1858). See, also, People v Samuel Scott, 6 Mich 287, 292 (1859); Maher v People, 10 Mich 212, 218 (1862); People v Garcia, 398 Mich 250, 258 ; 247 NW2d 547 (1976).”

The common-law offense of murder, which is incorporated into our murder statutes, 4 includes at a minimum two essential or ultimate factual elements: (1) a homicide, (2) committed with malice, *736 express or implied. 5 Maher v People, 10 Mich 212, 217-218 (1862); People v Austin, 221 Mich 635, 644 ; 192 NW 590 (1923); People v Morrin, 31 Mich App 301, 310 ; 187 NW2d 434 (1971); People v Fountain, 71 Mich App 491, 499 ; 248 NW2d 589 (1976).

In am also in agreement with Justice Fitzgerald that our murder statutes operate not to define murder, but rather to declare differing penalties for the different statutory degrees of murder as defined at common law:

" 'The statute does not undertake to define the crime *737 of murder, but only to distinguish it into two degrees, for the purpose of graduating the punishment.’ People v Doe, 1 Mich 451, 457 (1850). See, also, People v Samuel Scott, supra, 293.

" 'It speaks of the offense as one already ascertained and defined, and divides it into degrees * * *.’ People v Potter, supra, 6 (emphasis added).

" 'Neither murder nor manslaughter is defined in our statutes. The [first-degree murder statute] simply classifies a murder perpetrated in a particular manner as murder in the first degree. It has no application until a murder has been established People v Charles Austin, 221 Mich 635, 644 ; 192 NW 590 (1923) (emphasis added).” See ante, Justice Fitzgerald’s opinion, p 719.

Thus it is clear that under Michigan law the substantive offense of murder, that is, a homicide with malice, express or implied, must be proven before the punishment-grading statutory provisions come into operation. 6

B. Malice

I also agree with the definition of malice which is contained in Justice, then Judge, Levin’s opinion in People v Morrin, supra, 31 Mich App 310 -311:

"A person who kills another is guilty of the crime of murder if the homicide is committed with malice aforethought. Malice aforethought is 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. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behav *738 ior is to cause death or great bodily harm.” 7 (Footnotes omitted.)

Our jurisprudence contains no common-law definition 8 of malice as the intent to commit an inherently dangerous felony. 9

*739

C. The Felony-Murder Rule

In Morrin , directly following the definition of malice, Justice, then Judge, Levin noted parenthetically that "[t]he common-law felony-murder rule is an example of implied intent or implied malice aforethought”. This parenthetical language suggests that the felony-murder rule is a method of proof which establishes a "conclusive implication”, 10 or an "imputation (as a matter of law)”, 11 *740 or a "conclusive presumption” 12 of the implied intent to kill out of factual proof of an intent to commit a felony.

Under the felony-murder rule, as it is generally understood then, evidence establishing the intent to commit a felony, by operation of law irrebuttably satisfies the prosecution’s burden of proving the necessary factual element of the intent to kill. Stated otherwise, upon proof of the intent to commit a felony, the felony-murder rule operates to relieve the prosecution of its burden of proving at all, much less beyond a reasonable doubt, the factual element of malice; that is, the intent to kill, the intent to inflict great bodily harm, or wanton and willful disregard of the likelihood that the natural tendency of one’s behavior is to cause death or great bodily harm.

The result then is that under the felony-murder rule the defendant’s state of mind with respect to the killing is irrelevant. The only mens rea involved pertains solely to the underlying felony. Because malice, correctly understood, is a characterization of a particular state of mind with respect to a killing, it follows that the common-law offense of felony murder does not require malice. Yet, historically, acceptance of this reality has, in general, been resisted by many courts and commentators who insist, erroneously in my view, that *741 felony murder requires malice. 13 Their theory begins with the proposition that felony murder, like all murder, requires malice and ends with the proposition that malice is imputed, as a matter of law, from the intent to commit the underlying felony. This is a useless fiction at best. The offense of felony murder requires only (1) the commission or attempt to commit a felony and (2) a killing causally connected with the commission or attempt.

Survival of the fiction that felony murder requires malice but that malice is imputed is undoubtedly attributable to unreasoned allegiance to the axiom that murder requires malice, express or implied. Because malice is the sine qua non of murder, courts, when confronted with the crime of felony murder which does not require malice, have resorted to conceptualizing felony murder in a way that professes obedience to the "murder requires malice” commandment. As a result, a fourth type of mental state has been created by some courts and commentators and included under the heading of malice, so that malice is said to include:

1) An intent to kill;

2) An intent to inflict great bodily harm;

3) Wanton and willful disregard of the likelihood that the natural tendency of one’s behavior is to cause death or great bodily harm; and

4) An intent to perpetrate a (dangerous) felony. 14

Thus, with disingenuously circular reasoning, *742 obeisance is mistakenly paid to the axiom that murder requires malice by including within the definition of malice a case in which it is not an element. The price paid is continuing confusion in the law of homicide. Consequently, I disagree with the following statement by my brother Fitzgerald: "We construe the felony-murder doctrine as providing a separate definition of malice * * *.” Malice has nothing to do with common-law felony murder; it is not an element of the crime, and is not properly considered by the jury. 15 Except for its name, felony murder bears little if any resemblance to the offense of murder. 16 It is a mistaken *743 analysis, therefore, that permits one to deem the intent to commit a felony a kind of malice, and felony murder a kind of common-law murder.

Ill

Perhaps for reasons relating to a failure to fully grasp the nature of the relationship between felony murder and murder, felony murder has led a dubious and enigmatic existence in the jurisprudence of this state. I fully agree with Justice Fitzgerald’s observation that this Court has "never specifically adopted” the common-law crime of felony murder, nor ever "expressly considered whether Michigan has or should continue to have a common-law felony-murder doctrine”. 17 Although there is language in Michigan Reports that ostensibly adverts to felony murder, 18 the discussion is invariably superficial, tangential, opaque, and, as my brother Fitzgerald notes, almost always "clearly dictum”. 19 As a result, the very existence of felony murder in Michigan has been ardently disputed by our Court of Appeals, in which there now exists a sharp split of authority represented *744 on one side by Fountain 20 and on the other side by Till. 21 Inasmuch as resolution of the divergent views is made unnecessary by our holding today, I offer no intimation as to which view is "correct”. It is sufficient to state only that if felony murder existed in Michigan, by virtue of today’s decision it no longer does.

IV

That we differ greatly in how we understand the concept of felony murder and its relationship to murder should not obscure the fact that Justice Fitzgerald and I are in agreement on the principal issue: the merits of the felony-murder rule.

Part IV of his opinion correctly outlines, in my view, the injudicious and unprincipled premises on which the common-law doctrine of felony murder rests. 22 The basic infirmity of felony murder lies in its failure to correlate, to any degree, criminal liability with moral culpability. It permits one to be punished for a killing, usually with the most severe penalty in the law, without requiring proof of any mental state with respect to the killing. This incongruity is simply more than we are willing to permit our criminal jurisprudence to .bear.

For these reasons I concur in today’s holding and the disposition of these consolidated cases.

*745 V

The effect of this decision is not, as my brother suggests, to redefine malice or murder. Those terms will mean what they have always meant in this state: murder is a killing accompanied by malice; malice is the intent to kill, the intent to inflict great bodily harm, or wanton ánd willful disregard of the likelihood that the natural tendency of one’s behavior is to cause death or great bodily harm. Moreover, malice is and always has been a question of fact for the trier of fact 23 and, as all questions of fact, may be established by direct *746 evidence, circumstantial evidence, 24 or both. These principles are unaffected by this case.

Today we simply declare that the offense popularly known as felony murder, which, properly understood, has nothing to do with malice and is not a species of common-law murder, shall no longer exist in Michigan, if indeed it ever did.

402 Mich 938 (1978).

Id.

403 Mich 821 (1978).

MCL 750.316; MSA 28.548 (first degree); MCL 750.317; MSA 28.549 (second degree).

The definition of murder as a homicide committed with malice, express or implied, and the definition of malice as "the intention to kill, actual or implied”, see Part II B, infra, does not conflict with our recent holding in People v Richardson, 409 Mich 126 ; 293 NW2d 332 (1980), that the trial judge reversibly erred by instructing the jury that "the law implies malice 'from [an] unprovoked, unjustifiable, or inexcusable killing’ ”. Id., 144 (emphasis in original). We declared in Richardson , and I reiterate today:

"The necessary factual element of malice may be permissibly inferred from the facts and circumstances of the killing, but it can never be established as a matter of law by proof of other facts.” Id. (Emphasis changed.)

The implication of malice as a matter of law improperly withdraws that question of fact from the jury’s consideration. Id. With respect to our definition of malice as I understand it, "implied” does not denote the withdrawal of the question of malice from the jury’s consideration by proof of other facts. It refers instead to states of mind other than the intent to kill that are embraced by our concept of malice, namely, the intent to inflict great bodily harm and wanton and willful disregard of the likelihood that the natural tendency of one’s behavior is to cause death or great bodily harm. As Justice, then Judge, Levin explained,

"It is murder only if there is intent to kill, actual or implied. Where there is no actual intent to kill, intent to kill will be implied only in certain circumstances, e.g., where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm * * People v Morrin, 31 Mich App 301, 314, fn 17 ; 187 NW2d 434 (1971) (emphasis added).

Therefore, the last two states of mind, notwithstanding their classification under the heading "implied intent to kill”, must still be proved affirmatively, and under no circumstances may they be established as a matter of law. It is always the jury’s prerogative to conclude that these states of mind do not exist. See People v Richardson, supra.

To the extent that my concurrence in Justice Coleman’s dissenting opinion in People v Allensworth, 401 Mich 67, 75 ; 257 NW2d 81 (1977), can be read as indicating otherwise, I hereby admit error there. See People v Till, 80 Mich App 16, 36 ; 263 NW2d 586 (1977).

See also People v Doss, 406 Mich 90, 99; 276 NW2d 9 (1979); People v Van Wyck, 402 Mich 266, 269 ; 262 NW2d 638 (1978). .

At fn 104, Justice Fitzgerald quotes from Perkins, Criminal Law (2d ed), p 45, the following:

" 'Confusion results from the assumption sometimes entertained that the felony-murder rule results in conviction of murder where the killing has been without malice. Nothing could be farther from the common-law concept which is that one perpetrating or attempting to perpetrate a dangerous felony "possesses a malevolent state of mind which the law calls ’malice’; * * *” in other words the intent to engage in such a felony is malice aforethought.’”

In support of the last sentence in this quotation, Perkins cites, in fn 19 at p 45, these authorities:

" 'The felony-murder doctrine ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony.’ People v Washington, 62 Cal 2d 777, 780; 44 Cal Rptr 442, 445; 402 P2d 130, 133 (1965). It 'supplies the element of malice.’ Simpson v Commonwealth, 293 Ky 831; 170 SW2d 869 (1943). The law 'implyeth a former malicious disposition in him * * V Lambard, Eirenarcha 241 (1619).”

While the felony-murder doctrine "ascribes” malice, "supplies the element of malice”, or by law "implyeth” malice, it does not change the definition of malice, which remains the intent to kill, actual or implied. Factual proofs of an intent to commit an (inherently dangerous) felony are, under the felony-murder rule, allowed to conclusively establish the essential or ultimate factual element of an implied intent to kill.

The felony-murder rule has been defined as a method of conclusively proving the implied intent to kill (malice) by proving either the intent to commit a felony, see Justice Fitzgerald’s opinion, ante, fns 103-104, or the intent to commit an inherently dangerous felony. See Perkins, Criminal Law (2d ed), p 44.

It would appear, by virtue of this Court’s decision in People v Jeffrey Carter, 387 Mich 397 ; 197 NW2d 57 (1972), that the felony-murder rule, if it existed at all in Michigan, applied only upon proof of the intent to commit a statutorily enumerated felony. In Jeffrey Carter , the prosecution argued that statutory second-degree (i.e., common-law) murder could be proved by showing a homicide committed during the perpetration of "any” felony. The specific felony proffered in Jeffrey Carter was kidnapping which, according to Perkins, supra, at 39-42, is considered a “dangerous felony” which has been used in applications of the felony-murder rule. At the time of the Jeffrey Carter prosecution, kidnapping was not one of the felonies enumerated in the first-degree murder statute.

*739 This Court rejected the "any felony” or "dangerous felony” argument with respect to second-degree murder:

"Both murder and manslaughter deal with the wrongful killing of another person. If there has been a killing during the commission of one of the felonies enumerated under first-degree murder, this establishes the degree. If the killing occurs during the commission of some other felony, malice may be implied but the nature of the felonious act must be considered. Many felonies are not inherently dangerous to human life. To hold that in all cases it is murder if a killing occurs in the commission of any felony would take from the jury the essential question of malice.” (Emphasis added.) 387 Mich 422 .

While this statement may be read by some as indicating that proof of a homicide during the commission of a statutorily enumerated felony could establish first-degree murder, it is clear that such an interpretation would require casting aside the well-established precedent, discussed above at page 736, that our murder statutes do not define murder but only serve to graduate punishment of an already established murder. It would be anomalous to say that the term "murder”, as used in the first-degree murder statute, contemplates one kind of "common-law malice” which would include the intent to commit a felony, while the term "murder” as used in the second-degree statute contemplates a kind of "common-law malice” which does not include the intent to commit a felony. In other words, only in the first-degree murder statute would the term "murder” be read as "killing”. But, as was suggested by our decision in People v Andrew Carter, 395 Mich 434 ; 236 NW2d 500 (1975), "[fjirst degree murder =£ killing + either premeditation or perpetration of a felony enumerated in the first degree murder statute”. Corrigan & Grano, Criminal Law (1976 Annual Survey of Michigan Law), 23 Wayne L Rev 473, 505 (1977) (emphasis in original).

In any event, for purposes of convenience, the use of the phrase "the intent to commit a felony”, as used throughout the rest of this opinion, should be read as also meaning "the intent to commit an inherently dangerous felony” and "the intent to commit a statutorily enumerated felony”.

See and compare Mullaney v Wilbur, 421 US 684, 686 ; 95 S Ct 1881 ; 44 L Ed 2d 508 (1975).

See, e.g., People v Fountain, 71 Mich App 491, 494-495, fn 2 ("In effect malice was imputed to the act of killing from the intent to commit the underlying felony by operation of law.”).

A conclusive presumption has been explained as follows:

"In the case of what is commonly called a conclusive or irrebuttable presumption, when fact B is proven, fact A must be taken as true, and the adversary is not allowed to dispute this at all.” McCormick, Evidence (2d ed), § 342, p 804.

In the context of the felony-murder rule, proof of a "basic” or "evidentiary” fact, that is, the intent to commit a felony, establishes, as a matter of law, the existence of the "ultimate” or "elemental” fact, malice.

See, e.g., Justice Fitzgerald’s opinion, p 714.

See id., Perkins on Criminal Law (2d ed), p 46, quoted in People v Morrin, 31 Mich App 301, 322, fn 28 ; Moreland, Law of Homicide (Indianapolis: Bobbs-Merrill, 1952), pp 205-206. Under this view of felony murder, "the intent to engage in such a felony is malice aforethought”. Perkins, supra, p 45 (emphasis in original). See, e.g., People v Till, 80 Mich App 16, 29 ; 263 NW2d 586 (1977) ("[T]he perpetration or attempt to perpetrate a dangerous felony is equivalent to malice.”).

The prosecutor in Aaron seems to recognize this:

"|T]he 'malice’ required for felony murder is unique and by its very nature cannot be utilized as an element of either first-degree premeditated murder or second-degree murder.” Brief at p 11.

This species of "malice” is unique because it is really a pseudo-malice — no malice at all. To illustrate, suppose a crime consists of elements A, B, and C. Suppose also that a rule of law provides that whenever B is established, C is established and whenever B is not established, C is not established. Does it make sense to say that C is an element of the crime? The answer clearly is "no”. The elements of the crime are A and B. Some would argue that C is still an element of the crime, but conclusively (irrebuttably) presumed upon proof of B. I concede that a conclusive presumption with respect to an element of a crime does not necessarily render the element a nullity. It only does so when the presumption’s basic fact is another element of the crime, as in the cases of felony murder and the foregoing hypothetical, in which cases the conclusive presumption is not that at all, but merely a roundabout way of saying the element is not part of the crime. (As to felony murder, it might be said that the "presumed fact” is malice and the basic fact is the mens rea of the underlying felony.) In contrast, when the presumed fact is truly an element of the crime, the presumption, especially if it is conclusive, may run afoul of the Fourteenth Amendment Due Process Clause. See In re Winship, 397 US 358 ; 90 S Ct 1068 ; 25 L Ed 2d 368 (1970); Mullaney v Wilbur, 421 US 684 ; 95 S Ct 1881 ; 44 L Ed 2d 508 (1975); Ulster County Court v Allen, 442 US 140 ; 99 S Ct 2213 ; 60 L Ed 2d 777 (1979). Such presumptions may unconstitutionally dilute the "beyond a reasonable doubt” standard of criminal culpability.

The difference in kind between felony murder and murder is marked not only by the absence of malice in the former. Felony murder is an entirely parasitic crime with no bottom of its own: it stands or falls with the underlying felony, as is reflected in its title. Furthermore, felony murder is the only homicide (with the possible *743 exception of one type of involuntary manslaughter) as to which the defendant’s state of mind (mens rea) with respect to the killing is irrelevant. On this factual question, the prosecutor need offer no evidence. These particular attributes render felony murder sui generis in the law of homicide.

Justice Fitzgerald’s opinion, p 722.

See People v Potter, 5 Mich 1, 6-7 (1858); People v Samuel Scott, 6 Mich 287, 293 (1859); Maher v People, 10 Mich 212, 218-219 (1862); Wellar v People, 30 Mich 16, 19-20 (1874); People v Utter, 217 Mich 74, 86, 88 ; 185 NW 830 (1921); People v Pavlic, 227 Mich 562, 565-567 ; 199 NW 373 (1924); People v Treichel, 229 Mich 303, 307-308 ; 200 NW 950 (1924); People v Crandell, 270 Mich 124, 125 ; 258 NW 224 (1935); People v Andrus, 331 Mich 535, 544 ; 50 NW2d 310 (1951); People v Jeffrey Carter, 387 Mich 397, 422 ; 197 NW2d 57 (1972); People v Andrew Carter, 395 Mich 434, 437-439 ; 236 NW2d 500 (1975).

Justice Fitzgerald’s opinion, p 722.

People v Fountain, 71 Mich App 491 ; 248 NW2d 589 (1976) (Michigan has no felony-murder rule).

People v Till, 80 Mich App 16 ; 263 NW2d 586 (1977) (Michigan does have a felony-murder rule). See cases cited in Justice Fitzgerald’s fn 1. See, generally, Saltzman, Does Michigan Have a Felony-Murder Rule?, 59 Mich Bar J 97 (1980).

1 do not concur in that portion of Part IV of Justice Fitzgerald’s opinion discussing the relationship between felony murder, malice, and murder.

This has been the rule since at least 1862, when this Court, in Maher v People, supra, declared:

"To give the homicide the legal character of murder, all the authorities agree that it must have been perpetrated with malice prepense or aforethought. This malice is just as essential an ingredient of the offense as the act which causes the death; without the concurrence of both, the crime cannot exist; and, as every man is presumed innocent of the offense with which he is charged till he is proved to be guilty, this presumption must apply equally to both ingredients of the offense — to the malice as well as to the killing. Hence, though the principle seems to have been sometimes overlooked, the burden of proof, as to each, rests equally upon the prosecution, though the one may admit and require more direct proof than the other; malice, in most cases, not being susceptible of direct proof, but to be established by inferences more or less strong, to be drawn from the facts and circumstances connected with the killing, and which indicate the disposition or state of mind with which it was done. It is for the court to define the legal import of the term, malice aforethought, or, in other words, that state or disposition of mind which constitutes it; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as in their judgment, they deserve: and that the court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, as presumption of law. If courts could do this, juries might be required to ñnd the fact of malice where they were satisfied from the whole evidence it did not exist.” (Emphasis changed.)

Thus, we held in Maher that the essential element of malice was a question of fact which could not be withdrawn from the jury.

Of course, circumstantial evidence may properly include, if the killing occurred during the commission or attempted commission of any felony, the nature of the felony and attending circumstances. In some cases, no doubt, this evidence may persuade the trier of fact beyond a reasonable doubt that the defendant acted with malice. For this reason and those explained in Part VI of Justice Fitzgerald’s opinion, the impact of today’s decision on the administration of criminal justice is not likely to be profound.