# State v. Lafferty

> Supreme Judicial Court of Maine · September 11, 1973 · 309 A.2d 647

URL: https://www.frixlaw.com/law-library/cases/9758163

## Case

- **Full name:** STATE of Maine v. Paul A. LAFFERTY
- **Court:** Supreme Judicial Court of Maine
- **Decided:** September 11, 1973
- **Citations:** 309 A.2d 647; 1973 Me. LEXIS 344
- **Precedential status:** Published
- **Opinion:** Concurrence by Wernick
- **Judges:** Weatherbee, Pomeroy, Wernick, Archibald, Dufresne, Webber
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9758163

## How later opinions describe it (automated extraction)

- rejecting the argument that an insignificant break (“missing link”) in the chain of custody of certain physical evidence (blood samples in Lafferty) makes the evidence per se inadmissible

## Opinion text

WERNICK, Justice
(further concurring).
I agree fully with the opinion of Mr. Justice Archibald and join it.
I deem it beneficial to append additional comments concerning the constitutional issue precipitated by this Court’s decisions in State v. Wilbur, Me., 278 A.2d 139 (1971) and State v. Rollins, Me., 295 A.2d 914 (1972) taken in conjunction with the decision of the United States Court of Appeals for the First Circuit in Wilbur v. Mullaney, 473 F.2d 943 (1973).
Maine juries have always been instructed in every criminal case that the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime with which the defendant is charged. In those criminal cases in which the defendant is accused of an unlawful homicide alleged to be punishable as “murder” Maine juries, for more than one hundred years, have been given the further charge:
“In all cases where the unlawful killing is proved beyond a reasonable doubt, if the defendant, *666 would reduce the crime below the degree of murder, the burden is upon him . to satisfy . . . by a fair preponderance of the evidence that although he killed unlawfully, he killed in the heat of passion upon sudden [and adequate] provocation, . . (p. 944 of 473 F.2d) (emphasis supplied)
See: State v. Wilbur, supra.
By the combined import of its decisions in Brine v. State, Me., 264 A.2d 530 (1970); State v. Wilbur, supra, and State v. Rollins, supra, this Court, as the highest court of Maine, reaffirmed that even though the “Wilbur-type” charge places a burden of proof on the defendant as to the particular matter of the causative impact of heat of passion upon sudden, adequate provocation — thus to palliate “murder” to “manslaughter”, — such approach has always been regarded by the law of Maine as logically consistent with the burden of proof reposing on the prosecution rather than as an avowed exception to it.
This view was deemed to have been adopted long ago under the rationale promulgated in State v. Conley, 39 Me. 78 (1854)- — that “murder” and “manslaughter” are not separate and distinct crimes but different degrees, for penalty purposes, of the single generic offense of “unlawful homicide” — and by State v. Knight, 43 Me. 11 (1857) in which — relying upon Commonwealth v. Knapp, 9 Pick. (Mass.) 496; Commonwealth v. Knapp, 10 Pick. (Mass.) 477; Commonwealth v. York, 9 Met. (Mass.) 93 and Commonwealth v. Webster, 5 Cush. (Mass.) 295 1 — the Maine Court had observed:
“(t)he doctrine enunciated in these instructions [the Wilbur-type charge] has been much examined by courts of the highest standing, and jurists of great respectability, within a few of the last years. Uncommon learning, research, and power of ratiocination have been exhibited in support of the principle; and those who have denied its soundness have maintained the denial in arguments of distinguished ability and force. . The instruction is a doctrine of the English common law, of Massachusetts, .. It is not known to have been denied by courts of this state, but it has been expressly admitted, and the jury instructed accordingly by this court, sitting as a full court . . .” (39 Me. pp. 137, 138);
and it was then concluded:
“The instruction given, having the weight of authority in its support, and not having been satisfactorily shown to be erroneous, [as allegedly inconsistent with the ultimate burden of the State to prove every essential element of the crime] is sustained.” (p. 138)
In Wilbur v. Mullaney, supra, the United States Court of Appeals for the First Circuit (First Circuit) decided that Maine’s court of last resort had wrongly assessed the fundamental import of Maine law. It held the “Wilbur-type” charge to be, under Maine law, an outright exception to the “proof beyond a reasonable doubt” burden generally imposed upon the prosecution and concluded, therefore, that it presently violates the “due process” clause of the Fourteenth Amendment to the Constitution of the United States into which, under the decision In Re Winship, 397 U.S. 358 , 90 S. Ct. 1068 , 25 L.Ed.2d 368 (1970), has been absorbed the principle that the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime with which a defendant is charged.
It surely lies within the First Circuit’s province, should it accept at face value the law of Maine as the Supreme Judicial Court of Maine has interpreted it, to de *667 cide that the policy objectives underlying In Re Winship, supra, demand that, however valid for other purposes, in the context of due process requirements concerning the allocations of burdens, and the quanta of proof appropriate, in criminal cases, the distinction between the facts essential to constitute a crime and the facts legislatively assigned in advance to bind a judge’s sentencing discretion must give way; in short, that In Re Winship must be extended beyond its originally stated confines (“every fact necessary to constitute the crime”) to encompass as well the facts material to the grades, or degrees, fixed within a criminal offense as advance legislative punishment categories.
Were the First Circuit so to decide, I should accede to such decision. Even though only a decision of the Supreme Court of the United States on a federal constitutional question is precedentially controlling as the supreme law of the land upon state courts, I believe that in the interests of developing harmonious federal-state relationships it is a wise policy that a state court of last resort accept, so far as reasonably possible, a decision on a federal constitutional issue rendered by a United States Court of Appeals in the Circuit in which the State is situated.
In Wilbur v. Mullaney, the First Circuit in dictum expressed doubts about the constitutional validity of the “Wilbur-type” charge should the interpretation by this Court be taken on its own terms. 2 Its decision, however, rested on its repudiation of the interpretation of Maine law given by the State’s court of last resort, and its assertion of its own interpretation of Maine law as being that “murder” and “manslaughter” are two separate and distinct offenses, differentiated by the presence, or absence, of “malice aforethought” conceived as a substantive factual reality.
Because it is also my firm conviction that harmonious federal-state relationships tend to be jeopardized each time a federal tribunal sees fit to reject the interpretation of state law afforded by the highest court of the State, to substitute its own interpretation of the law of the State as a means of arriving at a decision of a federal constitutional issue, and because, further, I am satisfied that in the particular instance of Wilbur v. Mullaney the First Circuit (1) has wrongly perceived the Maine law and (2) has, therefore, wrongly exercised federal authority, I cannot accept that decision as a precedent.
While the issue is not free from doubt when the interpretation by the highest court of a State involves the State’s substantive law, it may be assumed that in deciding an issue pertaining to the federal Constitution as precipitated by the substantive law of a State, a federal Court is not absolutely controlled by the interpretation of the state law made by the State’s court of last resort. Cases in the Supreme Court of the United States suggest a range, very narrow indeed, but open nonetheless, within which a federal tribunal may be authorized, as the only way in which the integrity of federal constitutional protections may be preserved, to declare “unsupportable” or “untenable” the State law as interpreted by the State’s highest Court.
It is requisite, therefore, for present purposes, that the contours of such federal authority be ascertained with a degree of definiteness. Wilbur v. Mullaney offers only the bald statement without citation of authorities, that
“a totally unsupportable construction which leads to an invasion of constitu *668 tional due process is a federal matter.” (p. 945)
Research indicates that although almost all of the discussion by the Supreme Court of the United States in this context concerns State procedural law, three guiding principles have been indicated relative to the interpretation by the highest court of a State of the State’s substantive law.
First, a sudden, new interpretation affecting the criminality of conduct by the State Court of last resort, not previously advanced or reasonably intimated, because it would thus be operative to deprive the defendant in the immediate case of fair warning of prohibited conduct, is, as such, an independent violation of federal “due process” and cannot be controlling on a federal tribunal responsible to preserve federal constitutional guarantees. Bouie v. City of Columbia, 378 U.S. 347 , 84 S.Ct. 1697 , 12 L.Ed.2d 894 (1964); Douglas v. Buder, Judge, — U.S. -, 93 S.Ct. 2199 , 37 L.Ed.2d 52 (1973).
Second, if the totality of the circumstances surrounding the State Court’s recent interpretation under scrutiny establishes that it is at odds with the fundamental spirit which has always pervaded the State’s law, the federal tribunal may find that, in practical effect, the State Court has manipulated to evade federal constitutional guarantees, and it may reject such recent State Court interpretations thus to preserve the integrity of federal constitutional protections. See: McCoy y. Shaw, 277 U.S. 302 , 48 S.Ct. 519 , 72 L.Ed. 891 (1928); Ward v. Love County, 253 U.S. 17 , 40 S.Ct. 419 , 64 L.Ed. 751 (1920); Cf. Williams v. Georgia, 349 U.S. 375 , 75 S.Ct. 814 , 99 L.Ed. 1161 (1955) (dissenting opinion of Mr. Justice Clark).
Third, in any event, — even if the State Court’s recent interpretation be consistent with the basic spirit of the law of the State and the State Court is clearly acting in good faith and with intellectual honesty. — if the law of the State uses concepts arbitrarily, or assigns to them significance contrary to standards of meaning properly cognizable as normative, a federal tribunal may reject the State Court’s interpretation when acceptance of it will frustrate federal constitutional protections. See: Indiana ex rel. Anderson v. Brand, 303 U.S. 95 , 58 S.Ct. 443 , 82 L.Ed. 685 (1938); Terre Haute and Indianapolis Railroad Company v. Indiana, 194 U.S. 579 , 24 S.Ct. 767 , 48 L.Ed. 1124 (1904); Enterprise Irrigation District et al. v. Farmers Mutual Canal Company et al., 243 U.S. 157 , 37 S.Ct. 318 , 61 L.Ed. 644 (1917). Cf. Williams v. Georgia, supra, (dissenting opinion of Mr. Justice Clark).
Overtones of all three of the aforesaid principles appear in the opinion of the First Circuit in Wilbur v. Mullaney, supra. Because, however, I remain convinced, after the most careful deliberation, that the First Circuit misapprehended the fundamental law of Maine and, in addition, manifested a strange conception as to what would be an arbitrary use of concepts according to the standards which should be normative, I cannot give to the decision in Wilbur v. Mullaney the weight which, ordinarily, I should like to give to a First Circuit decision on a federal constitutional issue.
Much of my thinking is already reflected by the opinion written by Mr. Justice Archibald. I add the following further comments.
In specific relationship to the approach of this Court in Collins v. Robbins, 147 Me. 163 , 84 A.2d 536 (1951), the First Circuit, in Wilbur v. Mullaney, maintains that
“the distinction based upon [“murder” and “manslaughter” as] separate offenses figured importantly” (473 F.2d p. 946)
in this case insofar as the
“fact that they were separate offenses, the defendant being a . [juve *669 nile], raised the jurisdictional questions the court was concerned with.” (p. 946)
In Collins v. Robbins the jurisdictional issue for decision was the validity of the Superior Court’s exercise of jurisdiction to sentence, as a criminal, a juvenile who had been indicted for “murder” and whose plea of guilty of “manslaughter” had been accepted and entered. The potential jurisdictional infirmity arose because statute provided that
“[jjudges of municipal courts shall have exclusive original jurisdiction over all offenses, except for a crime, the punishment for which may be imprisonment for life . . ., committed by children under the age of 17 years, . . . .” (147 Me. p. 165, 84 A.2d p. 537) (emphasis supplied)
Under the conception advanced in State v. Conley, supra, as reaffirmed in State v. Wilbur and State v. Rollins, the single generic offense of “unlawful homicide”, of which “murder” and “manslaughter” represent different degrees of seriousness for penalty purposes, would be, qua offense, a “crime” the punishment for which may be imprisonment for life. On such rationale the exclusive original jurisdiction of the judge of the Municipal Court acting as a juvenile Court would be inapplicable in any event to preclude the Superior Court’s jurisdiction of the offense.
This ground of decision was not used, however, in Collins v. Robbins. Instead, the Court took the approach that once the jurisdiction of a Court had attached in terms of a state of affairs existing at the time it was invoked, jurisdiction will not be divested by the supervention of subsequent events — -even if it be assumed that had such events existed at the outset, they might have prevented the jurisdiction from attaching.
In Wilbur v. Mullaney the First Circuit seizes on this fact — that in Collins v. Robbins the Court failed to employ the conception of “unlawful homicide” as a single generic offense comprehending “murder” and “manslaughter” as degrees for penalty purposes — as strong indication that the Court must have disagreed with it. The mere statement of the argument, however, marks it a “non-sequitur.” Manifestly, that a Court chooses to resort to one specific ground as the basis of its decision does not mean, in strict logic or by fair in-tendment, that an alternative ground of decision was avoided because it was thought erroneous.
The basic premise utilized by the First Circuit to establish the “unsupportability” of the “Wilbur-Rollins” interpretation of Maine law is:
“While the term malice aforethought is an amorphous one, and while it may not have any independent meaning in some other jurisdictions, the law of Maine conclusively gives it distinct significance.” (473 F.2d p. 947)
As I comprehend the First Circuit’s decision, that Court conceives the “distinct significance” given by Maine law to “malice aforethought” to be “the fact of premeditation.” The First Circuit says explicitly:
“So long as . murder . [is] an intentional killing with malice aforethought, if the defendant does not agree to, ... a finding of premeditation, . . . the burden must be upon the state to establish it.” (p. 948) (emphasis supplied)
Immediately, it is of the utmost importance to clarify that, as utilized in Wilbur and Rollins, the term “intentional killing” signifies not only that the act from which a death results is “intended” (thus to be a voluntary act) but also that the actor had the actual specific subjective intention that his act should cause the death of another human being. Thus, Wilbur and Rollins were concerned with the situation in which the prosecution has produced evidence sufficient to show beyond a reasonable doubt a killing rendered unlawful by its “intentional” character — that the *670 perpetrator of the homicide had done it with the specific subjective intention that his action produce the death of another. As to such “intentional killing”, unlawful by virtue of its “intentional” aspect, Wilbur and Rollins held that a further characterization of it as “with malice aforethought” — thus to render it murder, rather than “manslaughter” — adds no factual content essential to the criminality of the conduct.
In holding this proposition “unsupportable”, the First Circuit — to the extent that it purports to meet the Wilbur-Rollins analysis on common ground — must be taken to maintain that a correct reading of Maine law is that “malice aforethought” signifies factual substance over and above the fact that defendant killed another human being with the specific subjective intention that death result. It is by identifying this additional substantive fact as “premeditation” that the First Circuit says that insofar as Maine law conceives of “murder” as
“an intentional killing with malice aforethought, if the defendant does not agree to, . . ., a finding of premeditation, ., the burden must be upon the state to establish it.” (p. 948)
We may leave aside whether, even if it were a correct hypothesis that “malice aforethought” signifies some independent, factual content, it would follow that the prosecution is constitutionally required to prove it beyond a reasonable doubt should the State assign it materiality not to define criminality but only to differentiate degrees of penalty severity — criminality being defined by other factors. It is the First Circuit’s hypothesis which, plainly and simply, is an incorrect evaluation of Maine law.
The key to a correct understanding of Maine law on this point may be found by addressing attention to the details of the process involved when heat of passion upon sudden and adequate provocation is operative to remove “malice aforethought” from a “criminal homicide”, thus to have it punishable as “manslaughter” rather than “murder.”
First to be considered is the situation in which the unlawfulness (criminality) of the homicide consists in the fact that defendant causes the death of another having a specific subjective intention that the death result from his conduct. Here, it has been the law of Maine, without question, that once the prosecution proves such specific subjective intention beyond a reasonable doubt, nothing else appearing, there is sufficient proof of a criminal homicide, punishable as “murder.” Under Maine law such specific subjective intention can be present at all only if it is present as “premeditation”; it can come into being only as formed some instant, however fleeting, before volition is exercised. 3 Thus, in the law of Maine an “intentional” killing — i. e., a killing in which the actor has the specific subjective intention that death result from his act is, by definition, a “premeditated” killing.
In this context, the law of Maine holds that if the subjective intention to have death result is truly generated by heat of passion upon sudden, adequate provocation, the “unlawful” homicide is “without malice aforethought” and becomes *671 (punishable as) “manslaughter” rather than “murder.” This results, however, not because the causative effect of heat of passion upon sudden, adequate provocation eliminates the specific subjective intention. Rather, the subjective intention to have death occur is regarded as continuingly present and operative, but, notwithstanding and in spite of this fact, insofar as it is produced by heat o'f passion upon sudden, adequate provocation, the law makes a concession to a frailty attributable to the average human being. The law compromises. It does not entirely excuse the unlawfulness of the homicide. The homicide remains criminal, precisely because of the continuing operativeness of the intention that death result; but its blameworthiness is regarded as palliated, or reduced, because heat of passion upon sudden, adequate provocation has generated the subjective intention that death occur. 4
Unless this analysis be the accurate description of the process involved when heat of passion upon sudden, adequate provocation supervenes to palliate from “murder” to “manslaughter”, there can be no adequate accounting for the recognition of the homicide as unlawful, i. e., as a crime. Heat of passion upon sudden, adequate provocation is not an independent, self-sufficient factor productive of criminality in a homicide. Criminality already existing because of other factors, it mitigates the blameworthiness of the criminality/but it is not itself a source of criminality. This has always, and undeniably, been the fundamental insight, and spirit, of the law of Maine.
Hence, the view of the First Circuit that the law of Maine “conclusively” gives “malice aforethought” a distinct substantive factual content which is to be identified as “premeditation” is just not correct. Since it is the continuing existence of the specific subjective intention to have death result which confers the continuing character of criminality upon a homicide punishable as “manslaughter”, “premeditation” always remains as a characteristic of “manslaughter” thus constituted. Yet, “malice aforethought” becomes eliminated by the causational effect of the heat of passion upon sudden, adequate provocation. Patently, it is a logical contradiction to identify that which has been extinguished, “malice aforethought”, with that which has remained, the “premeditation”, the subjective intention to have death result. “Malice aforethought”, then, in this context of an “intentional” killing cannot be the substantive fact of “premeditation”, as the First Circuit has mistakenly claimed.
This same analysis explains the true conception of Maine law, and exposes the inaccuracy of the First Circuit’s approach, when it is applied to the other context in which, absent a specific subjective intention to have death occur, death is caused by conduct which objectively evaluated is characterized by a high death producing potential. Here, it is such objective tendency of the conduct, nothing else appearing, which renders the homicide, first, a criminal homicide and, second, punishable as “murder”. If, however, this objectively “reckless” or “brutal” conduct is caused by *672 heat of passion upon sudden, adequate provocation, the homicide remains criminal but becomes punishable as “manslaughter”, because it is then deemed to be “without malice aforethought.”
Manifestly, here, “malice aforethought” cannot be identified with “premeditation” since, by hypothesis, there is lacking a subjective intention to have death result. 5 Further, here, it is the objective character of the conduct insofar as it remains contin-uingly operative as a fact, notwithstanding that it was generated by heat of passion upon sudden, adequate provocation, which renders the homicide continuingly criminal rather than entirely excused. Yet, despite such persistence of the “recklessness” or “brutality” of the act, “malice aforethought” is extinguished by the fact that heat of passion upon sudden, adequate provocation spawned the conduct in the context in which it occurred. With the objective high tendency of the conduct to cause death continuingly operative to confer “unlawfulness”, but the “malice aforethought” extinguished by the causational effect of heat of passion upon sudden, adequate provocation, it would be a logical contradiction to identify the extingtdshed “malice aforethought” with the non-extinguished, continuingly present “reckless” or “brutal” character of the conduct. Here, then, “malice aforethought”, is identifiable neither with the nature of the conduct as “reckless” or “brutal” nor with “premeditation” (premeditation by hypothesis, never having been a factor).
The fundamental truth which emerges from the foregoing analysis is that the term “malice aforethought” is really another example (from among many) of the technique by which the common law sought to express, or justify, a public policy judgment. It would attach a transcendental, mystical quality and speak of it as if it be a factual substantive reality, even though it is not. In the law of Maine “malice aforethought” is precisely such a fictional, metaphysical term of art. It capsulizes, as a shorthand code phrase, not any substantively real factual content but only the expression of the public policy judgment that homicides which are rendered criminal by being committed in a specific manner — either by the actor’s having a specific subjective intention to have death result or by the high objective tendency of his conduct to produce death— have attributed to them the highest degree of blameworthiness for purposes of severity of punishment.
When, however, the actual subjective intention to have death result or the “reckless” or “brutal” conduct is generated by heat of passion upon sudden, adequate provocation, although the features yielding criminality persist to keep the homicide criminal, the public policy judgment (conceding to human frailty) attributes a removal of the ,rhigh degree” of penalty blameworthiness. The criminal homcide is “palliated” as to blameworthiness. This is the sense in which the criminal homicide becomes “without malice”, thus to be subject to lesser punishment as “manslaughter.”
It remains my strong conviction, therefore, that State v. Wilbur, together with State v. Rollins, correctly interpreted the fundamental spirit of the Maine law as it had been for more than one hundred years.
Those cases clarify that in the process, under Maine law, by which “murder” is, or is not, palliated to “manslaughter” the factual matters delineating criminality operate without relationship to the separate and independent factual matters affecting the higher, or lower, degree of blameworthiness for penalty purposes. When a homicide becomes criminal because *673 the person committing it has acted with a specific subjective intention to have the death of another result, or the conduct involved has objective tendency to be highly dangerous to human life, these factors establishing criminality make it neither more nor less probable in fact that the actor was, or was not, acting from heat of passion upon sudden, adequate provocation — ■ the factor which is material to the degree of blameworthiness for penalty purposes. Whether there be such heat of passion upon sudden, adequate provocation is entirely a matter of happenstance relative to the other facts by which the homicide is rendered criminal. For this reason, once a homicide is proved criminal, the use of the word “presumption” to describe the process by which the criminal homicide may, or may not, happen to be palliated from murder to manslaughter can be confusing precisely because the word, “presumption”, tends to suggest, wrongfully in this context, that a process of proving one fact from another fact is involved. As explained above, however, no such factual proof process is truly involved; the process is, rather, only one of legal attribution —the rendering of a public policy judgment concerning the degree of blameworthiness attaching, for purposes of penalty, to the otherwise independently existing criminality.
This approach in the law of Maine does .not, as I see it, make an arbitrary use of concepts contrary to standards of meaning properly cognizable as normative. I find it remarkable, to say the least, that the First Circuit in Wilbur v. Mulla-ney has suggested such a distorted use of concepts in Maine law, as interpreted by Wilbur and Rollins, by adverting to lay public attitudes as a source of standards by which to evaluate the reasonableness of the technical and complex distinction between essential elements of a crime and advance legislative criteria designating differing degrees of blameworthiness for purposes of penalty. To argue, as does the First Circuit, that the “public” thinks of “murder” as a “premeditated killing” can hardly provide the norm which should properly control whether the law of Maine is irrational in assigning to the concept of “murder” a more expansive connotation. Indeed, the law of Maine, traditionally, as the law of many other states, has regarded “murder” as embracing not only “premeditated” killings but also killings in which “premeditation” is absent but there has been conduct which, objectively evaluated, is deemed to have a high likelihood of causing death. Until Wilbur v. Mullaney, such approach has not heretofore been thought to be an arbitrary distortion of the proper meaning of concepts simply because it may not agree with the casual rudimentary conceptions involved in lay public attitudes.
Moreover, likewise unacceptable is the assertion by the First Circuit that it is not conceivable that the legislature of Maine (as, we may assume, any other legislature) “if asked to revise the present laws” would be willing to make all “unlawful homicides” a single generic offense within which are delineated different penalty degrees requiring that
“the sentence would vary, depending on whether the defendant . . . had not meant the result”, (p. 946)
or depending on other specific circumstances delineated in advance by the legislature.
Far from such legislative approach being inconceivable, it has been the legislative pattern actually adopted in Louisiana since 1942 (LSA-R.S. 14:29 et seq.) and in the recent statutory revisions in New York in 1967 ( N.Y. Penal Law §§ 125.00 et seq. (McKinney’s Consolidated Laws of N.Y., c. 40); Oregon in 1971 (ORS 163.005) and Pennsylvania in 1973 (Purdon’s Pennsylvania Statutes Annotated, Title 18 §§ 2501 et seq.) It is also the approach taken in the Proposed Special Draft, A.L.I., Model Penal Code (Article 210 — July 30, 1962).
In light of all the foregoing considerations, and those expounded in the opinion *674 of Mr. Justice Archibald, I must decline to follow the First Circuit’s decision in Wilbur v. Mullaney, supra. I remain convinced that Wilbur and Rollins provide a correct interpretation of the law of Maine as it has truly been for more than one hundred years. I believe, further, that the law of Maine in the context under evaluation has made a reasonable use of concepts according to standards properly cognizable as normative.
I deem myself precedentially bound, therefore, by the “Wilbur-Rollins” interpretation of Maine law until either (1) the Supreme Court of the United States sustains the approach of the First Circuit in Wilbur v. Mullaney as properly within the authority possessed by a federal Court to preserve the integrity of federal constitutional guarantees, or (2) the First Circuit, or the Supreme Court of the United States, accepting the “Wilbur-Rollins” interpretation of Maine law on its own terms, decides that In Re Winship, supra, has broadened applicability to require the prosecution to prove beyond a reasonable doubt not only “every fact necessary to constitute the crime . . . charged” but also every fact necessary to constitute the subsidiary penalty degrees prescribed by the legislature as a prior limitation upon the sentencing discretion of judges.
I am authorized to state that all of the Justices sitting concur in this concurring opinion.
. The Maine Court in State v. Knight could also have pointed explicitly to a further clarification advanced by Chief Justice Shaw, concerning the significance of what was said by the Court majority in Commonwealth v. York, supra, as presented in Commonwealth v. Hawkins, 3 Gray (Mass.) 463 (1855).
. The Court said : “ . . .we do not wish to be taken as accepting the court’s conclusion, had we agreed with its premise. . we question whether a formula which imposed on the defendant a factual issue determinative of the length of sentence would be any more acceptable [under the federal Constitution] than when used to establish an element of the crime. . . . We need not . . . pursue this matter, but we must have grave doubts . . . .” (473 F.2d p. 948)
. It is important to recognize that Maine law lias never given special significance for any purpose, even when Maine had capital punishment, to one type of “premeditation”— namely, “premeditation” in the sense of “deliberation” or “planning”, and in which the subjective intention to have death result has been turned over in the mind and given second thought and reflection, as distinguished from the “premeditation” constituted by an intention to have death result which comes into being as an impulse formed in a fleeting instant before volition is exercised. As to such distinction which is unimportant in Maine but which is often crucial in other jurisdictions, especially in relation to capital punishment, see the charge to the jury which was before the Supreme Court of the United States, and approved, in Fisher v. United States, 328 U.S. 463 , 66 S.Ct. 1318 , 90 L.Ed. 1382 (1946). See also: Austin v. United States, 127 U.S. App.D.C. 180, 382 F.2d 129 (1967).
. This remains true even when the specific subjective intention that death result might have first arisen as a design calculated, or planned, over an extended period of time. Here, the law of Maine recognizes that “manslaughter” may, nevertheless, be a possibility provided that the deliberative, reflected-upon intention to have death result, has been shown to have been broken. Should such interruption have occurred and a subsequent specific subjective intention to have death result be formed in a fleeting instant before volition, — the intention being generated by the heat of passion upon sudden, adequate provocation, — the homicide may be regarded as “manslaughter” rather than murder (for purposes of punishment). Unless the homicide occurs in this manner, however, it cannot be “manslaughter” since, so long as a deliberative reflective intention to have death result remains continuingly operative, the heat of passion upon sudden, adequate provocation lacks requisite causational effectiveness to produce palliation consideration and is no more than an irrelevant coincidence of the homicide.
. The language that the “reckless” or “brutal” conduct manifests “a heart void of social duty, and fatally bent on mischief” is a metaphorical, description of the objective tendency of the conduct and should not be thought, mistakenly, to import the existence of an actual subjective state of mind.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9758163. Public record. Not legal advice.