(dissenting). I have signed Justice Cavanagh’s dissenting opinion.
I write separately to express my disagreement with the majority’s redefinition of the crime of assault with intent to do great bodily harm less than murder.
The majority states that the Legislature did not intend, where the victim of an assault with intent to do great bodily harm dies, that the jury be instructed respecting the offense of assault with intent to do great bodily harm less than murder.1 The majority reaches this conclusion by “necessary implication,”2 citing no authority other than that perception.
The majority acknowledges that assault with intent to do great bodily harm less than murder is a cognate lesser offense of second-degree murder,3 and that this cognate offense is of the same class or category as *692the principal charge within the meaning of People v Hendricks, 446 Mich 435; 521 NW2d 546 (1994), but nevertheless adds an ipse dixit that where the defendant’s acts were a cause in fact of a criminal homicide “there is no justification for instruction on merely assaultive offenses.”4
i
The jury was instructed that it might find Bailey guilty of second-degree murder if it found that he intended to do great bodily harm to Charles Peoples and Peoples died.
The judge had found that there was sufficient evidence that Bailey acted on adequate provocation in the heat of passion to justify an instruction on voluntary manslaughter. The jury was so instructed, and found Bailey guilty of voluntary manslaughter. He was sentenced to serve five to fifteen years.
In refusing an instruction on assault with intent to do great bodily harm less than murder, the court precluded the jury from finding an admittedly cognate lesser offense of second-degree murder that carries a maximum penalty of ten years.5
Where there is no evidence that the defendant acted on adequate provocation in the heat of passion, but there is, as here, evidence that the defendant did not intend to kill, the defendant would ordinarily be entitled to an instruction on involuntary manslaughter *693for grossly negligent conduct in inflicting an injury in excess of that intended.
Nevertheless, the Legislature has decided that there shall be an offense less than either second-degree murder or manslaughter dubbed assault with intent to do great bodily harm less than murder, carrying a maximum ten-year penalty rather than the fifteen-year maximum for manslaughter.
Since a jury is not instructed that it must convict a person of second-degree murder if it finds that he intended to cause great bodily harm and death resulted, there is no reason why a jury, unwilling to find the requisite malice (from the intent to do great bodily harm) to support a conviction of second-degree murder, should be left with no alternative choice other than acquittal unless it finds the requisite elements to convict the defendant of manslaughter.
It is within the province of the jury, as trier of fact, to conclude that, although the defendant intentionally committed great bodily harm that resulted in death, he is not a murderer or manslaughterer, and, accordingly, acquit him of second-degree murder, reject manslaughter, and convict him of assault with intent to do great bodily harm less than murder. That is at least as logical as the majority’s assumption that the Legislature did not intend, where the victim dies, that there be an instruction on assault with intent to do great bodily harm.6
*694n
The prosecutor has not argued that a jury should not be instructed on assault with intent to do great bodily harm if the victim dies. The prosecutor’s argument in this Court is that the jury should not be so instructed where a rational view of the evidence indicates that the accused is guilty of second-degree murder. The majority correctly rejects the prosecutor’s argument that Michigan “adopt a rational view of the evidence approach to included offenses . . . .”7
The majority thus casts a new spin on the elements of assault with intent to do great bodily harm less than murder without the benefit of briefing of counsel.
The argument that assault with intent to do great bodily harm less than murder should not be given where the victim dies was the view espoused by the Court of Appeals in People v Boles, 127 Mich App 759, 771; 339 NW2d 249 (1983). This Court, after issuing an order to show cause to the prosecutor,8 reversed Boles by order.9 After at least two conference discussions, that order of reversal of the Court of Appeals was entered without dissent even by the author of the majority opinion in the instant case. Three other members of the present Court10 joined in the unanimous order along with three who are no longer members of the Court.11
*695m
Regardless of how one thinks this case should be decided on the merits, the majority’s opinion is disturbing because it appears to alter the law without bringing the change to the reader’s attention.12 The majority portrays its decision as consistent with prior cases in which this Court has addressed the question when an instruction on a lesser included or cognate lesser included offense is necessary.
The majority relied primarily on four cases: People v Stephens, 416 Mich 252; 330 NW2d 675 (1982), People v Beach, 429 Mich 450; 418 NW2d 861 (1988), People v Pouncey, 437 Mich 382; 471 NW2d 346 (1991), and People v Hendricks, supra. It maintains that these cases have “developed and refined”13 the law in this area since this Court announced in 1975 in People v Ora Jones, 395 Mich 379, 390; 236 NW2d 461 (1975),14 that, “[i]n the area of ‘cognate’ lesser offenses, ... [if] the evidence adduced at trial would have supported a guilty verdict on the [requested] offense . . ., the trial court [i]s required to accede to defendant’s request to instruct the jury that such offense [i]s a lesser included offense of the charge of second-degree murder.”
While these cases may have “developed and refined” the law in the sense that they applied the dictates of Ora Jones and People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), to factually distinguisha*696ble scenarios, nothing in the cited opinions discredits the view expressed in Chamblis (cited in the Boles order) that “[t]he fact that the evidence would also support conviction of the greater charged offense does not preclude the giving of the lesser included instruction.” Id. at 423.
In Stephens, this Court eliminated the misdemeanor cutoff rule set forth in Chamblis. As stated in footnote 9 of Stephens, this Court’s decision in that case did not alter the state of the law concerning when an instruction should be given on a separate, lesser included felony charge.15
In Beach and its companion case, People v Edwards, both defendants sought instructions on cognate lesser offenses. This Court reaffirmed, as a general rule applicable in both cases, that when evidence is presented that would support the requested charge, an instruction is required.16 Applying that proposition, the Court held in Edwards that an involuntary manslaughter instruction need not have been given because the defendant failed to present sufficient evidence that the act committed by him that caused the victim’s death was not a felony or of the type that does not naturally tend to cause death.17 The Court found that there was error in Beach, concluding that “there was sufficient evidence to warrant the lesser *697included offense instruction of conspiracy to commit larceny in a building . . . .”18
■ Similarly in Pouncey, defendant sought a voluntary manslaughter instruction. The Court reaffirmed that “if there is evidence which would support a conviction of the cognate lesser offense, then the trial judge, if requested, must instruct on it.”19 (This Court held that the judge’s failure to give the instruction was not error because the defendant failed to show that he had acted in the heat of passion when he shot the victim or that he was adequately provoked, two of the elements required for voluntary manslaughter.)
Lastly in Hendricks, defendant sought an instruction on unauthorized driving away of an automobile as a cognate lesser offense of armed robbery. Again this Court, citing Ora Jones, reaffirmed that an instruction is required when the evidence presented would support the charge. The Court held that it was proper to deny the instruction, however, because the lesser offense was not “ ‘of the same class or category, [or] closely related’ ” to the originally charged offense.20
Returning to the test articulated in Ora Jones and reaffirmed in Beach, Pouncey, and Hendricks, the majority should have asked, assuming, as the majority concludes, that second-degree murder and the cognate lesser offense are in the same class or category of crimes, whether evidence was presented in this *698case to support the requested cognate lesser included offense instruction.21
As the majority notes, the elements of assault with intent to do great bodily harm less than murder are: “(1) an assault, i.e., ‘an attempt or offer with force and violence to do corporal hurt to another’ coupled with (2) a specific intent to do great bodily harm less than murder.”22
Sufficient evidence was introduced to show an assault (the defendant admitted he struck the victim with the bat) and the requisite intent (defendant testified that he intended to hurt the victim). The instruction should have been given.
By necessary implication, the crime of assault with intent to do great bodily harm less than murder presupposes that the assailant’s act has not caused the death of the victim. If such harm has occurred, and the defendant’s admitted act constitutes a legally cognizable cause of the death, instruction of the jury regarding crimes not intended to punish acts causing such an egregious result are logically precluded. At the point a court has before it uncontested evidence that a criminal homicide has been caused by a defendant’s acts, there is no justification for instruction on merely assaultive offenses. If a lesser cognate instruction is to be justified in such an instance, there must be some evidentiary basis for the jury to conclude that the causation chain leading from the greater harm back to defendant’s admitted acts has been broken by an independent, intervening cause. [Ante, pp 671-672.]
Id., p 671.
Id., p 669.
Id., pp 671-672.
The likelihood is that if the judge had instructed on this cognate lesser offense, and the jury had convicted Bailey of that offense, the sentence would have been five to ten years rather than five to fifteen years for voluntary manslaughter. Bailey’s earliest date of release would be the same.
Id.
Id., p 667.
Unpublished order entered May 25, 1984 (Docket No. 72499).
420 Mich 851 (1984).
Justices Brickley, Cavanagh, and Levin.
Justices Williams, Kavanagh, and Ryan.
The majority acknowledges the effect of its opinion in a footnote following the very last word of the opinion. It states, “To the extent our holding in this case is inconsistent with our holding in Boles, supra, we overrule that holding.” Ante, p 682, n 15.
Ante, p 667.
Id, pp 667-668.
Id. at 258, n 9.
429 Mich 464-465.
This Court has partially defined involuntary manslaughter as “ ‘the unintentional killing of another without malice in . . . the commission of some unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm.’ ” Beach, 429 Mich 477, quoting People v Richardson, 409 Mich 126, 135-136; 293 NW2d 332 (1980).
429 Mich 481.
Id. at 387.
Id. at 451. Whether the lesser offense is “of the same class or category” is the second prong of the two-pronged test established in Ora Jones concerning when an instruction is proper for a cognate lesser included offense. 395 Mich 388.
The majority cites United States v Kerley, 838 F2d 932, 938 (CA 7, 1988), for the proposition that jury nullification is a power and not a right. I do not dispute this statement, but comment only that nullification is not implicated here. Kerley did not involve the question under what circumstances an instruction should be given.
Ante, pp 668-669, quoting People v Smith, 217 Mich 669, 673; 187 NW 304 (1922).