specially concurring.
I concur with parts I and II of the opinion of the Court. I also agree with the ultimate conclusions in Part III that the offense of attempted second degree murder exists in Idaho and that the defendant’s conviction should be upheld. I write separately because, in my view, the rationale stated in the Court’s opinion that intent to kill is always an element of second degree murder is inaccurate and over-simplifies a complex and ill-defined area of Idaho law. I proceed with some reluctance, for an explanation of my disagreement with my colleagues requires a venture into the murky waters of Idaho’s homicide statutes which are, in my view, fraught with ambiguity and imprecision, particularly with respect to the mental state required for commission of second degree murder.
Murder, other than torture murder, is defined by I.C. § 18-4001 as: “The unlawful killing of a human being with malice aforethought.” The circumstances in which murder, as defined in I.C. § 18-4001, will constitute murder in the first degree are enumerated in I.C. § 4003(a) through (f).3 Subsection (g) of I.C. § 18-4003 defines murder of the second degree to be all kinds of murder that are not described elsewhere in that statute as murder in the first degree. Thus, second degree murder is defined largely by what it is not.
Disregarding the possibility of second degree torture murder, these statutes tell us that second degree murder is the “unlawful killing of a human being with malice aforethought” when none of the circumstances identified in I.C. § 18-4003(a)-(f) are present. It is clear that, to be second degree murder, a killing need not be “wilful, deliberate and premeditated,” for the presence of those mental elements would elevate the offense to first degree murder under I.C. § 18-4003(a). Consequently, the only mental element specified for second degree murder is “malice aforethought.”
Regrettably, that term is not statutorily defined with any clarity. Idaho Code § 18-4002 does address malice aforethought, but it is debatable whether that section provides a definition of malice or only refers to how malice may be proved. It states:
Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the *293killing show an abandoned and malignant heart.
If Section 18-4002 is viewed as a definition of malice, it appears that intent to kill is not in itself an essential element of second degree murder, for an “abandoned and malignant heart,” as an alternative to intent to take a life, would satisfy the malice element. The interpretation that Section 18-4002 defines two mental states, either of which will suffice for second degree murder, is supported by State v. Snowden, 79 Idaho 266, 272, 313 P.2d 706, 709 (1957). There the Idaho Supreme Court said the evidence established that there were both express and implied malice on the defendant’s part.
The majority relies upon the following statement from State v. Van Vlack, 57 Idaho 316, 364, 65 P.2d 736, 758 (1937), for the proposition that second degree murder requires intent:
Intent to take life or the mental state of having an abandoned and malignant heart which means, of course, a condition of mind and which therefore is a mental state is the essential element of murder in the second degree.
This statement, in which the Idaho Supreme Court was obviously drawing from the statutory language from I.C. § 18-4002, is more ambiguous than enlightening. It reasonably could be interpreted to mean, as the majority supposes, that the mental state of having “an abandoned and malignant heart” is equated to the intent to take a life, so that only one mental state, the intent to kill, is referenced in the quoted sentence. The statement could be as readily interpreted, however, to mean that either intent to take a life or the mental state of having an abandoned and malignant heart will satisfy the mental ingredient for murder in the second degree.
In State v. Birrueta, 98 Idaho 631, 633, 570 P.2d 868, 870 (1977), the Idaho Supreme Court did state unequivocally, “Intent to kill is an element of murder in the second degree.” However, the continuing authority of that statement is drawn into question by two more recent Supreme Court decisions, State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984) and State v. Lankford, 116 Idaho 860, 781 P.2d 197 (1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3295, 111 L.Ed.2d 803 (1990). In Aragon the Court considered the propriety of jury instructions distinguishing between first and second degree murder. The Court approved a jury instruction which defined malice as a state of mind manifested by an intentional or deliberate act and which instructed the jury that malice may be express or implied. The Court went on to state:
Further, the jury was instructed that if nothing more than malice, or the intent to do an unlawful act, was proven beyond a reasonable doubt, then the crime could not be first degree murder. The jury was instructed that if it could find beyond a reasonable doubt three other elements— wilfulness, deliberation and premeditation — then the defendant was guilty of first degree murder. Malice, the intent to act feloniously, was properly distinguished from, wilfulness, the intent to take life, premeditation, conceived beforehand, and deliberation, done with reflection. The jury was properly instructed on the additional elements necessary to prove first degree murder, and thus there was no error.
107 Idaho at 363, 690 P.2d at 298 (emphasis added). This passage from Aragon clearly expresses that the intent necessary for malice can be satisfied by the mere intent to perform the unlawful act that resulted in the death, without any intent to cause death. The latter intent — the intent to take a life— was said to be “properly distinguished from” the intent required for malice and, hence, for second degree murder.4
In Lankford, the Supreme Court held that the malice aforethought element for first degree murder was satisfied by the fact that the killing was committed in the perpetration of a robbery. In discussing the malice aforethought component of murder, the Court quoted, with apparent approval, from W. La-Fave and A. Scott, Jr., CRIMINAL LAW § 67 Murder — “Malice Aforethought” and “Living Human Being” pp. 528-530 and § 7 *294“Felony Murder” pp. 545-547 and 554 (1972), including the following discussion:
Murder is a common law crime whose complete development required several centuries. Though murder is frequently defined as the unlawful killing of another “living human being” with “malice aforethought,” in modern times the latter phrase does not even approximate its literal meaning. Hence it is preferable not to rely upon that misleading expression for an understanding of murder but rather to consider the various types of murder (typed according to the mental element) which the common law came to recognize and which exist today in most jurisdictions:
(1) intent-to-kill murder;
(2) intent-to-do-serious-bodily-injury murder;
(3) depraved-heart murder; and
(4) felonymurder.
At first the judges in fact did require for murder that the defendant actually have a previously thought-out (i.e., premeditated) intent to kill, though probably the spite, etc., was never actually necessary.
Thereafter the judges started to invent some new types of murder where there existed no premeditated intent to kill. First of all, when the defendant intentionally killed his victim in a heat of passion aroused in him by the conduct of the victim — the issue being whether the defendant should be guilty of murder or of voluntary manslaughter — the judges decided that manslaughter required that the defendant’s passion be reasonable.
Secondly, when the defendant unintentionally killed another person in the commission of a felony — as where A set fire to B’s house (arson) and accidentally B or a member of his family was burned to death — the judges held this to be murder (“felony murder”), though the defendant did not intend to kill at all and a fortiori did not premeditate a killing.
The judges still continued to say that murder is committed by one who unlawfully kills another “with malice aforethought,” now however adding the phrase “express or implied,” the word “implied” covering the four situations just described wherein literally there exists no premeditated intent to kill. Modern courts and legislatures still frequently define murder in terms of “malice aforethought, express or implied,” by which they mean the same types of murder as those which the English judges ultimately recognized, including felony murder, depraved-heart murder, mtent-to-do-serious-bodily-injury murder and murder committed in an unreasonable passion. <>
116 Idaho at 866-867, 781 P.2d at 203-04. This discussion confirms that malice aforethought may include a “depraved heart” state of mind (i.e., an “abandoned and malignant heart”), without necessarily requiring an intent to kill.
In view of the Van VLack, Aragon and Lankford decisions interpreting Idaho’s homicide statutes, I cannot conclude, as does the majority, that an intent to kill is a required element of second degree murder. Rather it appears that a killing may amount to murder where the perpetrator acted with intent to kill or with a state of mind that can be characterized as an “abandoned and malignant heart,”5 and perhaps, in view of the *295discussion in Aragon, the mental element may also be satisfied by an intent to perform the felonious act that resulted in the victim’s death but without intent to kill.
This does not mean, however, that there is no crime of attempted second degree murder. Although the Idaho Supreme Court held in State v. Pratt, 125 Idaho 546, 558, 873 P.2d 800, 812 (1993), that attempted felony murder is not a crime in Idaho because intent is not an element of felony murder, I.C. § 18-4003(d), it is apparent that attempted first degree murder can be prosecuted under other subsections of I.C. § 18-4003 where intent to kill is an element of the completed crime. See State v. Wood, 125 Idaho 911, 917, 876 P.2d 1352, 1358 (1994). In other words, some types of first degree murder may be “attempted” and others may not, depending upon whether intent to kill would be an element of the murder offense if it were completed.
Although the Idaho statutes do not separate second degree murder into categories in the way that first degree murder is categorized under Section 18-4003, it appears that second degree murder may be accomplished with any of at least two and perhaps three distinct mental states, one of which is intent to kill. Undoubtedly, there can be no attempted second degree murder where the mental state is “an abandoned and malignant heart” or an intent to commit a felonious act but without intent to kill, for Pratt stands for the proposition that there can be no attempt” to do that which is not intended. This does not, however, preclude recognition of a crime of attempted second degree murder with a mental state of intent to kill. Accordingly, I conclude that attempted second degree murder is a cognizable offense in this State, but only where intent to kill is present.
It follows that, because the offense of attempted second degree murder does exist under Idaho law, Fenstermaker’s challenge to his conviction is without merit.6
It is with hesitation that I advance the view that intent to kill is not required for second degree murder, for it appears to be a common understanding of members of the bench and bar in this State that intent to kill is an element of that offense. The common understanding, however, appears not to be sustained by the statutes or judicial precedent. This case well illustrates the need for modernization of Idaho’s homicide statutes which, with periodic amendments, date back to 18647, which are riddled with such archaic and obscure terms as “malice aforethought” and “abandoned and malignant heart,” and which have long presented perplexing problems of interpretation and application for our trial and appellate courts. See State v. Pratt, 125 Idaho 546, 556-58, 873 P.2d 800, 810-11 (1993); Yon v. State, 124 Idaho 821, 864 P.2d 659 (1993); State v. Lankford, 116 Idaho 860, 866-67, 781 P.2d 197, 203-04 (1989); State v. *296Aragon, 107 Idaho 358, 361-63, 690 P.2d 293, 296-98 (1984); State v. Dillon, 93 Idaho 698, 713-14, 471 P.2d 553, 568-69 (1970), cert. denied 401 U.S. 942, 91 S.Ct. 947, 28 L.Ed.2d 223 (1971); State v. Snowden, 79 Idaho 266, 313 P.2d 706 (1957); State v. Van Vlack, 57 Idaho 316, 360-64, 65 P.2d 736, 756-759 (1937); State v. Willis, 24 Idaho 252, 260-65, 132 P. 962, 965-67 (1913); State v. Rodriquez, 106 Idaho 30, 35-36, 674 P.2d 1029, 1034-35 (Ct.App.1983). I write with hope that the ambiguities discussed above may someday be removed by action of the Idaho Legislature or by the Idaho Supreme Court’s clarification of its interpretation of existing statutes.
. I.C. § 18 — 4003 provides:
(a) All murder which is perpetrated by means of poison, or lying in wait, or torture, when torture is inflicted with the intent to cause suffering, to execute vengeance, to extort something from the victim, or to satisfy some sadistic inclination, or which is perpetrated by any kind of wilful, deliberate and premeditated killing is murder of the first degree.
(b) Any murder of any peace officer, executive officer, officer of the court, fireman, judicial officer or prosecuting attorney who was acting in the lawful discharge of an official duty, and was known or should have been known by the perpetrator of the murder to be an officer so acting, shall be murder of the first degree.
(c) Any murder committed by a person under a sentence for murder of the first or second degree, including such persons on parole or probation from such sentence, shall be murder of the first degree.
(d) Any murder committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, kidnapping or mayhem is murder of the first degree.
(e) Any murder committed by a person incarcerated in a penal institution upon a person employed by the penal institution, another inmate of the penal institution or a visitor to the penal institution shall be murder of the first degree.
(f) Any murder committed by a person while escaping or attempting to escape from a penal institution is murder of the first degree.
(g) All other kinds of murder are of the second degree.
. This statement in Aragon appears, however, to be directly in conflict with I.C. § 18-4002 which says that malice includes "a deliberate intention to take away the life of a fellow creature.”
. I have found no explanation of what constitutes an “abandoned and malignant heart” in the Idaho case law. However, “depraved heart” murder is described in W. LaFave and A. Scott, Jr., SUBSTANTIVE CRIMINAL LAW § 7.4 Depraved-Heart Murder 199, 202-03 (1986) as follows:
Extremely negligent conduct, which creates what a reasonable man would realize to be not only an unjustifiable but also a very high degree of risk of death, or serious bodily injury to another or to others — though unaccompanied by any intent to kill or do serious bodily injury — and which actually causes the death of another, may constitute murder.
The following types of conduct have been held, under the circumstances, to involve the very *295high degree of unjustifiable homicidal danger which will do for depraved-heart murder: firing a bullet into a room occupied, as the defendant knows, by several people; starting a fire at the front door of an occupied dwelling; shooting into the caboose of a passing train or into a moving automobile, necessarily occupied by human beings; throwing a beer glass at one who is carrying a lighted oil lamp; playing a game of “Russian roulette” with another person; shooting at a point near, but not aiming directly at, another person; driving a car at very high speeds along a main street; shaking an infant so long and so vigorously that it cannot breathe; selling “pure" (i.e. undiluted) heroin. Other sorts of extremely risky conduct may be imagined; throwing stones from the roof of a tall building onto the busy street below; piloting a speedboat through a group of swimmers; swooping an airplane so low over a traveling automobile as to risk the decapitation of the motorist. In any such case, if death actually results to an endangered person and occurs in a foreseeable way, the defendant’s conduct makes him an eligible candidate for a murder conviction. (Footnotes omitted.)
. Here, the defendant argues only that the offense of attempted second degree minder does not exist in Idaho. Fenstermaker makes no argument that the information upon which he pleaded guilty is insufficient for failure to allege intent to kill, and it is unlikely that such an allegation, if now made, would be successful under the liberal standard of review applied to challenges to informations made for the first time on appeal. See State v. Cahoon, 116 Idaho 399, 400, 775 P.2d 1241, 1242 (1989); State v. Leach, 126 Idaho 977, 895 P.2d 578 (Ct.App.1995).
. See Laws of Territory of Idaho, Crimes and Punishments, § 15-18 (1864).