dissenting.
Because the majority opinion is simply a discourse on what might have been if Pryor had faced a charge of felony murder, I must respectfully dissent.
Pryor was indicted on separate charges of assault with intent to commit premeditated murder in the first degree and assault with intent to commit robbery with a deadly weapon. As the majority forthrightly concedes, these offenses are “different offenses within the meaning of Blockburger because each requires proof of a fact which the other does not.” Maj. op. at 530.
Notwithstanding this fact, the majority makes the pivotal assumption that a mere explanatory reference to the notion of felony murder in the jury instruction in some manner amended the concededly proper indictment and placed Pryor in double jeopardy. Plainly, only if the majority is correct in its assumption that the charges against Pryor were literally or effectively amended may the majority then proceed to compare assault with intent to commit felony murder and assault with intent to commit robbery for purposes of Blockburger.
As was stated in United States v. Beeler, 587 F.2d 340, 342 (6th Cir.1978):
A variance occurs when proof at trial differs materially from the facts alleged in the indictment. In contrast, an amendment involves a change, whether literal or in effect, in the terms of the indictment.
In the case at bar, despite the majority’s reference to “the problem of a variance between the indictment and the jury instruction,” maj. op. at 529, there is no evidence in the trial record that the State proved or even attempted to prove any fact at variance with the facts related in the indictment. The issue is, as stated, whether the jury instruction amended the indictment by placing Pryor at risk of conviction for felony murder.
Bearing in mind that Pryor was indicted for “premeditatedly” intending to murder *532Winbush, and that the uncontradicted testimony of the victim established that Pryor had said “I’m going to kill you,” the trial court’s charge must be evaluated in its totality to determine the proper weight to be accorded the challenged language. Haislah v. Walton, 676 F.2d 208 (6th Cir.1982). This is particularly true when, as here, the defendant did not timely object to the assertedly improper passage. United States v. Piccolo, 696 F.2d 1162 (6th Cir.1983). In the case at bar, for purposes of clarity and comparison, the trial court commenced its instruction defining assault with intent to commit premeditated murder with a citation to the statute at issue which incorporates, inter alia, the elements necessary to support a conviction for both premeditated murder and felony murder. Without in any manner inviting the jury to consider the felony murder language as a basis for a verdict against Pryor, the court immediately instructed the jury as to the critical difference between the indicted offense and felony murder:
The distinctive feature of murder in the first degree is premeditation, and involves a previously formed design, or actual intention to kill. It is not necessary that such design should have been conceived or preexisted in the mind for any definite period of time anterior to its execution. It is sufficient if it precede the actual assault, howsoever short the interval of time may be; for the length of time is not the essence of this element of this offense. And the purpose to kill is no less premeditated, in the legal sense of the term, if it were deliberately formed but a moment before the killing, than if it had been formed an hour before. The mental state of the assailant at the time, rather than the length of time the act may have been premeditated, is the material point to be considered. The question of importance is, “Was the mind of the assailant, at the moment of the killing, so far free from excitement or passion as to be capable of premeditating, as before explained, and was the death of the party slain the object sought to be accomplished by the slayer?”
Further, a review of those components of the instruction which addressed “assault to commit murder in the first degree” and “malice,” as that term was used in the definition of murder, leave no doubt that the trial judge cited felony murder solely as background or explanatory material.1 At no time did the court inform the jury that committing an assault during a felony supplies the requisite malice for murder. In *533fact, the instructions clearly mandate a finding of express malice and thus belie the majority’s assertion that the jury, without instruction and contrary to the given charge, could have utilized the commission of the felony to supply malice.2
*534A review of the case authorities discloses that mere citation to legal concepts arguably beyond the scope of the indictment for the purpose of explaining or distinguishing the indicted offense is not, standing alone, sufficient to constitute an amendment of the indictment. United States v. Windom, 510 F.2d 989 (5th Cir.1975) (including definition of “forgery” in prosecution for “publishing and uttering” previously forged checks was merely explanatory of the indicted offense); United States v. Alaimo, 297 F.2d 604, 607 (3d Cir.1961), cert. denied, 369 U.S. 817, 82 S.Ct. 829, 7 L.Ed.2d 784 (1962) (although “explanation” of the particular charged offense “may or may not have been necessary,” it constituted no change from what was charged in the indictment.) These cases stand in contrast to those actions wherein a jury instruction was held to have amended the indictment. In such cases, the court specifically directed the jury to consider an additional charge. See United States v. Jones, 647 F.2d 696 (6th Cir.), cert. denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 (1981); United States v. Carlson, 616 F,2d 446, 447 (9th Cir.1980) (“the jury was invited indeed urged” to utilize the additional language for conviction); United States v. Smolar, 557 F.2d 13, 19 (1st Cir.1977) (court instructed jury to consider additional offense despite variance with the indictment.) The trial court in the matter sub judice, by comparison, clearly instructed the jury to consider the instructions only insofar as they bore upon the particular offense “as charged in the First Count of the indictment.”
Moreover, the jury, which had a copy of the indictment in the jury room during its deliberations, returned the following verdicts:
[T]he Jury upon their oath do say: DOCKET NO: B60818: “We, the jury, find the defendant guilty of an assault with intent to commit murder in the First Degree as charged in the first count of the indictment and fix his punishment at imprisonment in the state penitentiary for not less than 6 years nor more than 21 years.”
*535DOCKET NO: B-60819: “We, the jury, find the defendant guilty of assault with intent to commit robbery with a deadly weapon as charged in the indictment and fix his punishment at imprisonment in the penitentiary of the state for not less than 10 years nor more than 21 years.” (Emphasis added).
These verdicts are strongly supportive of the principle that juries are presumed to follow the court’s instructions; here, the instruction to consider Pryor’s guilt or innocence as to premeditated murder as charged in the indictment.
Inasmuch as the trial court’s reference to felony murder was explanatory, and not an amendment of the indictment, I conclude that the majority was without warrant to address the hypothetical implication of Pryor’s exposure to a charge of felony murder. Accordingly, I would Reverse the district court and deny entry of the writ.
. These sections of the charge are as follows:
ASSAULT TO COMMIT MURDER IN THE FIRST DEGREE
This offense is thus defined by the statute: “Whoever shall, feloniously, and with malice aforethought, assault any person, with intent to commit murder in the first degree, or shall administer, or attempt to give, any poison or potion for that purpose, though death shall not ensue, shall, on conviction, be imprisoned in the penitentiary not less than three nor more than twenty-one years.”
From this definition, it is clear, that the assault must be made with express malice, as above explained, toward the party assaulted, so that if death result from the assault, the crime would be murder in the first degree, before the party assaulting can be guilty of an assault with intent to commit murder in the first degree. It is equally clear, that all of the elements of murder in the first degree, must exist in the mind of the assailant, at and before the time of the assault, to justify a verdict of guilty of an assault with intent to commit murder in the first degree. (Emphasis supplied)
MURDER
Murder is thus defined: “If any person, of sound memory and discretion, unlawfully kills any reasonable creature in being, and under the peace of the State, with malice aforethought, either express or implied, such person shall be guilty of Murder.”
Malice is an intent to do an injury to another; a design formed in the mind of doing mischief to another.
A case of homicide cannot be murder, unless at and before the killing the wicked intent, constituting malice aforethought, exists in the mind of the slayer. .
Malice is either express or implied. In homicide, express malice is malice against the person killed, and the slayer must have malice against the deceased in order that the killing be murder in the first degree, and in some cases, express malice is an element of murder in the Second degree.
. The instruction as it relates to the various types of homicide states in its entirety:
MURDER
Murder is thus defined: “If any person, of sound memory and discretion, unlawfully kills any reasonable creature in being, and under the peace of the State, with malice aforethought, either express or implied, such person shall be guilty of Murder.”
Malice is an intent to do an injury to another; a design formed in the mind of doing mischief to another.
A case of homicide cannot be murder unless at and before the killing the wicked intent, constituting malice aforethought, exists in the mind of the slayer.
Malice is either express or implied. In homicide express malice is malice against the person killed and the slayer must have malice against the deceased in order that the killing be murder in the first degree, and in some cases, express malice is an element of murder in the second degree.
Implied malice is malice not against the party slain, but malice in general, or that condition of the mind of the slayer which indicates a wicked, depraved and malignant spirit, and a heart regardless to social duty and fatally bent on mischief.
II
MURDER FIRST DEGREE MAY BE FURTHER THUS DEFINED:
“An individual commits murder in the first degree if:
(1) He commits a willful, deliberate and malicious and premeditated killing or murder; or
(4) He commits a willful, deliberate and malicious killing or murder during the perpetration of any arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb.
When the act of killing is not done in the commission of some one of the felonies named in the definition of murder above, in order that it be murder in the first degree, the killing must be done willfully, this is, of purpose, with the intent that the act by which the life of the party is taken, should have that effect; deliberately, that is, with a cool purpose; maliciously, that is, with malice aforethought; and with premeditation, that is, a design to kill must be formed before the act is performed by which death is produced. In other words, proof must be adduced to satisfy the mind of the jury that the death of the party slain was the ultimate result which the concurring will, deliberation and premeditation of the party accused sought.
The distinctive feature of murder in the first degree is premeditation, and involves a previously formed design, or actual intention to kill. It is not necessary that such design should have
been conceived or pre-existed in the mind for any definite period of time anterior to its execution. It is sufficient if it precede the actual assault, howsoever short the interval of time may be; for the length of time is not the essence of this element of this offense. And the purpose to kill is no less premeditated, in the legal sense of the term, if it were deliberately formed but a moment before the killing than if it had been formed an hour before. The mental state of the assailant at the time, rather than the length of time the act may have been premeditated, is the material point to be considered. The question of importance is, “Was the mind of the assailant, at the moment of the killing, so far free from excitement or passion as to be capable of premeditating, as before explained, and was the death of the party slain the object sought to be accomplished by the slayer?”
Ill
MURDER IN THE SECOND DEGREE
The principal element of murder in the second degree is malice. As before explained, the distinctive feature of murder in the first degree is premeditation, express malice is an equally essential element of that crime, and must always co-exist with premeditation before that crime can be made out against the defendant. Express malice, disconnected with any previously formed design to kill, may also be an essential element of murder in the second degree. In such case, however, the killing must be unlawful and malicious. Where the proof shows that the defendant did design and intend to kill the deceased, still if the design was formed upon a sudden impulse of passion, without adequate provocation, and disconnected with any previously formed design, and if executed willfully, and maliciously, it would be murder in the second degree.
Implied malice is an element of murder in the second degree. Malice necessary to constitute murder in the second degree is not confined to an intention to take the life of any particular person actually killed, but includes an intention to do any unlawful act which may probably result in depriving a person of life. It is not properly spite or malevolence to the individual in particular, but an evil design in general — the conduct of a wicked, depraved and malignant spirit.
Therefore it can be seen that of malice aforethought, as applied to cases of murder in the second degree, is that it is not confined to homicides committed in cold blood, with settled design and premeditation, but extends to all cases, how sudden the occasion may be, when the act is done under such cruel circumstances as are the ordinary indications of a wicked, depraved and malignant spirit, as when the *534punishment inflicted by a party, even upon provocation, is outrageous in its nature and continuance, and beyond all proportion to the offense, so that it is to be attributed to malignity and brutality, rather than infirmity.
Where the use of a deadly weapon, by the party killing, is shown, and the death is clearly shown in the proof to have resulted from its use by the slayer, the use of such weapon may be considered by the jury to establish that the killing was done maliciously; that is, with that malice required to support murder in .the second degree. But where the death and its manner, and all the surrounding and accompanying circumstances are shown in the proof, then malice is not presumed, but the jury are to determine from the whole facts, whether or not it was present as an element in the offense.
Malice cannot be inferred from the deadly intent alone; as when one from evident necessity willfully kills another to save his own life, or to save himself from great bodily harm, and the danger is imminent and immediate. Much less can malice be inferred when the intent to kill is produced by anger; for if it were sudden and upon reasonable provocation, the killing would not be murder, but manslaughter.
Implied malice and express malice, as above explained and limited are both elements of murder in the second degree, and one or the other must always be established by the proof before the jury will be justified in finding the defendant guilty of murder in the second degree.
IV
VOLUNTARY MANSLAUGHTER
If one man kills another upon a sudden heat, produced by adequate provocation, as if upon a sudden quarrel two persons fight and one kills the other, this is voluntary manslaughter; and, in general, if a person that is struck strikes again, and death ensues from the blow, it is voluntary manslaughter, the law regarding the blow as sufficient provocation to excite the passion, and the act of killing will be imputed to heat of blood and passion, rather than malice, if no undue advantage be taken by the party doing the killing. The sudden heat, which is the distinguishing characteristic of this offense, must be produced by adequate provocation, the true general rule being that reason must, at the time of the act, be disturbed by passion to an extent which might render ordinary men of fair average discretion, liable to act rashly, or without due deliberation or reflection, and from passion rather than judgment. If the act of the defendant charged in this case was the result of impulse and passion, excited upon sudden heat and adequate provocation, the idea of malice is repelled, and the assault is an assault with intent to commit voluntary manslaughter; provided that if death had resulted, the crime would have been voluntary manslaughter.