dissenting from denial of petition for rehearing.
Counsel for the defendant and the trial bar at large cannot help but be devastated by the Court’s summary rejection of the petition for rehearing. On far less important matters, involving not life versus death but dollars, the Court has even in recent times granted a rehearing in order to gain the benefit of a second oral argument which homes in on narrowed-down issues. The message sent out today is that the Court will not do so in death penalty cases, notwithstanding that it would take little effort and one hour for the five of us to gain the benefit to be derived from hearing counsel for the State and counsel for the defendant discuss the serious questions on instructions which were delved into in depth by one member of the Court (Bistline, J., dissenting). Counsel for defendant in his supporting brief explains very well that which practicing attorneys of experience in the criminal field necessarily have to know:
In preparing for this case I was certain the jury would come back with a murder verdict on what I knew the State’s evidence to be. There seemed to be only two probable interpretations of that evidence: either Emilio’s actions amounted to express malice, an intent to kill the child, or they amounted to implied malice, a wanton and willful disregard of unreasonable human risk (the so-called abandoned and malignant heart.) Either way, it would amount to murder. Therefore, it became my most important concern that the jury be made to understand the difference between first and second degree murder under Idaho law.
That law states that “the unlawful killing of a human being with malice aforethought” is murder. Malice is defined as either express, “a deliberate intention unlawfully to take away the life of a fellow creature”, or implied, “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” In order for it to be first degree murder it must have been willful, accompanied by a clear intent to take life, and deliberate and premeditated, done with reflection and conceived beforehand and not upon a sudden heat of passion. Further, the intent to kill need not have been conceived or intended for any particular length of time, the deliberate purpose to kill and the killing may follow each other as rapidly as successive thoughts of the mind.
Those are the definitions of murder and first degree murder in the State of Idaho and, obviously, any jury instructions were going to be based upon those definitions. Therefore, I felt it to be my duty to submit requested instructions which would most clearly differentiate between first and second degree murder within the confines of their definitions under the laws of the State of Idaho, *379however confusing and incomprehensible those definitions be.
I find it very disheartening that both the State and this Court consider my use of those definitions to amount to “invited error.” What is most reasonable, to submit some sort of “model” instructions which you know are going to be rejected or attempt to make Idaho’s definitions as clear as possible? My first concern was the jury’s verdict, not the appeal. ' Defendant’s Memorandum in Support of Petition for Rehearing.
Because the balance of the defendant’s brief presents compelling reasons why re-argument and reconsideration are in order; it is appended hereto.
Touching briefly on error in the trial court’s failure to give the Van Vlack/ Hunter type of instruction, Defendant’s Requested No. 26, it is assumed that defendant must feel that if my views on that issue could not raise a response from the other members of the Court, further argument by counsel would be but an exercise in futility — which is a sad state of affairs, where the State has candidly conceded that Defendant’s Requested Instruction No. 26 is a correct statement of the law. Earlier I said in concluding Part II that “the State’s brief has led the majority into grievous error.” I would have thought, until recent years at least, that this rather strong statement alone would have precipitated a rehearing in order to verify the accuracy of the statement, or cause it to be withdrawn. On reflection, even without the benefit of re-argument, I surmise now that what was intended was the statement of being inadvertently led into grievous error, because, as I noted earlier, the State’s brief did agree on the applicability of I.C. § 19-2105, which is the crux of the VanVlack/Hunter instruction. The State’s brief, although in my view erroneous, is decidedly more fair in that respect than the Court’s opinion. Obviously, I.C. § 19-2105 requires a special instruction, because it is inconceivable that the jury could apply it (under general instructions) without even knowing of its existence.
On reflection, mention must be made of State v. Beason, 95 Idaho 267, 506 P.2d 1340 (1973), found in the voluminous string citation of cases the majority declares itself to have reviewed in its footnote 5. Here, indeed, is a study in proportionality. Beason is a ease exactly on all fours, including the murder of a child. The majority who today sees no proportionality problem with Emilio Aragon’s sentence was also part of the Beason majority. Beason was not only convicted of second degree murder, but was only charged with second degree murder. Proportionality will never exist so long as prosecutors have discretion in charging, and, worse yet, in assuming that it is in their prerogative to also tell the judge which convicted first degree murderers should die and which should live. This problem has been heretofore discussed in other death penalty cases. It should not be the prosecutor nor the judge who makes that awesome decision, but the jury. The Idaho Constitution makes it so.
APPENDIX
MEMORANDUM IN SUPPORT OF PETITION FOR REHEARING
Rightly or wrongly, I chose the latter approach and submitted the following requested jury instructions Numbers 8-13, R. Vol. I, pp. 243-245.
8. Murder is the unlawful killing of a human being with malice aforethought.
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 killing show an abandoned and malignant heart.
Malice aforethought, either express or implied, is manifested by the doing of an unlawful and felonious act intentionally, deliberately, and without legal cause or excuse. It does not imply a pre-existing hatred or emnity toward the individual injured.
*3809. In order to convict the defendant of murder of the first degree, express malice must be proved beyond a reasonable doubt, implied malice will only suffice for murder of the second degree not murder of the first degree.
10. Murder is classified into two degrees, and if you should find the Defendant guilty of murder, it will be your duty to determine and state in your verdict whether you find the murder to be of the first or second degree.
11. A murder which is perpetrated by means of any kind of willful, deliberate and premeditated killing, is murder of the first degree, and all other kinds of murder are of the second degree.
12. Any unlawful killing of a human being, with malice aforethought, is murder; but if nothing further characterizes the offense it is murder of the second degree. To constitute the higher offense of murder of the first degree there must be willfulness, deliberation and premeditation in addition to malice aforethought. By willfulness is meant that the killing must be accompanied with a clear intent to take life. By deliberation and premeditation is meant that it was done with reflection and conceived beforehand and not upon a sudden heat of passion. But this does not mean that it must have been conceived or intended for any particular length of time for the deliberate purpose to kill and the killing may follow each other as rapidly as successive thoughts of the mind. It is enough that the party deliberate (?) the purpose to slay before the fatal blow. But while the intent and its execution may rapidly follow each other, it is proper for the jury to take into consideration the shortness of such interval in considering whether such sudden and speedy execution may be attributed to sudden passion and anger, rather than to deliberation and premeditation, which must characterize the higher offense of murder in the first degree.
13. If you find beyond a reasonable doubt that the Defendant struck the deceased and intended to kill her, but the intent was formed at the instant of the striking which led to death, he did so without premeditation and deliberation and cannot be convicted of murder of the first degree.
I did not submit those requested instructions with the intention that a line here or a line there or even entire instructions be given out of context but rather that they be given verbatim, and in order. That they are requested in five separate instructions rather than one continuous instruction is only for the purpose of clarity, not because their importance is disconnected or that one instruction is more important than the other.
It was, and is my conclusion that a first degree murder can occur under the laws of Idaho only if:
1. the killing is intentional; and
2. that intent to kill is formed prior to the infliction of the death blow.
Conversely, if a murder is either unintentional or intentional but the intent to kill is formed at the instant the death blow is struck, you only have second degree murder. In fact, the only possible fact situation for an intentional second degree murder is where the intent to kill is formed at the instant the death blow is struck. Any other intentional murder has to be first degree murder by definition. If you intend to kill and that intent is formed prior to the infliction of the death blow, by the successive thought of the mind criteria, you have a willful, deliberate and premeditated murder.
In attempting to get those two points across to the jury I specifically requested my instructions numbers 9 and 13, both of which were refused. Number 9 explains that if they do find malice but not express malice, a deliberate intent to kill, then they cannot convict on murder one. Number 13 explains that if they do find a deliberate intent to kill but are not convinced beyond a reasonable doubt that that intent was formed prior to the striking of the death blow then they cannot convict on murder one. .As previously stated, that is the only *381intentional killing situation that can be second degree murder and if that is not explained to the jury then any talk of willful, deliberate, premeditated and successive thoughts of the mind is superfluous. The definitions of those terms state that if you form the intent to kill and then kill, you are guilty of first degree murder, so why bother to instruct on them? Why not simply charge that if it is found that the murder was committed with express malice, the Defendant is guilty of first degree murder. Why even worry about willful, deliberate and premeditated? The logical results will be the same.
The answer to those questions is: that’s not the law. A murder committed with express malice does not automatically equate with first degree murder. But a jury must be instructed on that specific point. It is completely absurd to believe they could reach that conclusion on their own. No jury having found the Defendant intended to kill but not convinced beyond a reasonable doubt that the intent was formed prior to the instant of the infliction of the death blow will ever conclude that the Defendant is therefore not guilty of first degree murder. That simply will never happen. The definitions of willful, deliberate, premeditated and successive thoughts of the mind dictate that a first degree murder conviction will follow a finding of express malice as surely as night follows day unless juries are instructed that it isn’t necessarily so.
The trial court did not instruct as I requested and, as a result, the jury could not possibly have understood the possibility of a second degree intentional murder.
It cannot be more obvious but that the purpose of jury instructions is to explain the law so that it can be correctly applied to the facts.
A charge to a jury should, if possible, be concise, plain, simple, and easily understood. It should be couched in clear, intelligible language, and such in its language and meaning as may be readily applied by the jury to the evidence. An instruction should be so clear and concise as to be readily within the comprehension of men such as jurors who are not ordinarily educated in the law. If it is so worded that it might convey to the mind of an unprofessional man of ordinary capacity an incorrect view of the law applicable to the case, it is erroneous.
State v. Dickens, 68 Idaho 173, 191 P.2d 364.
An instruction that is apt to confuse or mislead the jury, or where it requires an involved explanation, or is ambiguous and uncertain, or erroneously states the law, or is confusing and misleading, should not be given.
70 Idaho 455, 220 P.2d 687; State v. Taylor, 59 Idaho 724, 87 P.2d 454; 23 C.J.S. Criminal Law, § 1306, p. 893.
All of the instructions given in a case must be read and considered together, and where, taken as a whole, they correctly state the law and are not inconsistent, but may be reasonably and fairly harmonized, it will be assumed that the jury gave due consideration to the whole charge, and was not misled by any isolated portion thereof.
State v. Tope, 86 Idaho 462, 387 P.2d 888.
Certainly it is a correct statement of the law that the jury instructions should be considered as a whole but it must be concluded that from that consideration the jury could understand the law, not merely that it was in there, somewhere, for them to figure out and we presume and hope they did so.
Of what possible relevance is it to say the instructions are proper because they consist of statutory language and were approved in the past? That certainly cannot be the issue. The question must be whether the jury could understand the difference between first and second degree murder from the instructions. Clearly the answer to that question is a resounding “No”. Only by the most convoluted of reasoning was the State and this Court able to discern the difference from those instructions. How can it even be intimated that a jury would reach the same conclusion? If they cannot possibly understand that difference, *382what difference does the source of the language of the instructions make?
By /s/ Robert I. Fallowfield Robert I. Fallowfield Attorney for Defendant-Appellant Mark Emilio AragonStandard 21-1.2 of the American Association Bar Standards for Criminal Justice, Purposes of Criminal Appeals; Appellate Court Structure, is as follows:
(a) the purposes of the first level of appeal in criminal cases are:
(i) to protect Defendants against prejudicial legal error in the proceedings leading to conviction and against verdicts unsupported by sufficient evidence;
(ii) authoritatively to develop and refine the substantive and procedural doctrines of criminal law; and
(iii) to foster and maintain uniform, consistent standards and practices in criminal process.
Again, it is my contention that the Eighth Amendment of the United States Constitution forbids a state from blindly and arbitrarily ignoring the difference in first and second degree murder when a defendant can die for one and not the other. That prohibition is no less true because the failure to distinguish is based upon statutory language and long-approved case law.
It is time for this Court to establish for this State, as clearly and concisely as possible, exactly what constitutes the crime of first degree murder.
A man must not be sentenced to death, even for the brutal murder of a defenseless baby, unless his jury was clearly instructed as to the difference between first and second degree murder. To think that the jury in this case was so instructed is sheer delusion.
DATED this 30th day of August, 1984.
Respectfully Submitted,
REMITTITUR AND ORDER
The Court having heretofore announced its Opinion on the 22nd day of June, 1984; and the Court having thereafter denied a Petition for Rehearing; and the Opinion of the Court having now become final; therefore,
IT IS HEREBY ORDERED, that the district court shall comply with the directive of the Opinion of this Court by the issuance of a DEATH WARRANT pursuant to Chapter 27 of Title 19, Idaho Code, as amended by Chapter 159 of the 1984 Session Laws.
IT IS FURTHER ORDERED, that the issuance of a DEATH WARRANT by the district court shall be done in accordance with I.C. §§ 19-2705 and 19-2715 as amended by Chapter 159 of the 1984 Session Laws.
IT IS FURTHER ORDERED, that there shall be a 42-day delay period before the issuance of a DEATH WARRANT to allow the Defendant-Appellant to file any post-conviction challenge, as required by I.C. § 19-2719(2) and (3), which 42-day delay period shall commence running on the date of this Remittitur and Order.
IT IS FURTHER ORDERED, that the filing and processing of all pending and new motions and petitions by the Defendant-Appellant, if any, and any appeal from any ruling of the district court thereon, shall be in accordance with I.C. § 19-2719 as created by Chapter 159 of the 1984 Session Laws.
IT IS FURTHER ORDERED, that Chapter 159 of the 1984 Session Laws shall apply to and govern all further proceedings in this action.