(concurring in result).
I concur in the result reached in the principal opinion, because, as Judge Houser points out, there was evidence here to support the definition of malice as submitted in Instruction No. 5.
However, I am unable to concur in that portion of page 458 of the opinion which would dispose of the point on the basis that if the state overinstructs, this is simply the assumption of an additional burden by it, and hence harmless error.
Such used to be the rule in civil cases— it was all right to overinstruct so long as it was done in the conjunctive; this merely was the assumption of an additional burden by the party and if the jury found for him, the overinstruction was harmless error, even though there was no evidence to support the theory submitted. MAI changed all this in the civil field, and the reasons for the change apply with equal force in the criminal field. The MAI Committee reported to this court in 1963: “The Committee believes that the jury should not be instructed on a theory of recovery or defense not supported by the evidence, and that any such submission, whether in the conjunctive or disjunctive, should be reversible error. A theory of recovery or defense should not be submitted unless it can stand alone. The present practice has been a crutch which has done little but confuse by presenting imaginary issues for the jury’s determination.”, MAI, 2nd ed., p. XXV.
In my opinion, the same practice in the criminal field, which likewise does “little but confuse by presenting imaginary issues for the jury’s determination”, should also be eliminated.