(dissenting). For many years, Michigan had no conspiracy statute as such. At common law, a conspiracy was an indictable offense, albeit a misdemeanor. People v Tenerowicz, 266 Mich 276, 282; 253 NW 296 (1934). Early on, the Michigan Supreme Court decided that even though only a misdemeanor at common law, the following statute made conspiracy a five-year felony:
Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court. [MCL 750.505; MSA 28.773.]
See also People v Smith, 296 Mich 176, 180; 295 NW 605 (1941); People v Beasley, 370 Mich 242, 246; 121 NW2d 457 (1963).
In apparent recognition of the anomaly that even a conspiracy to commit a harmless misdemeanor could, in theory, be punished by five years in prison, the Legislature in 1966 enacted a conspiracy statute providing for varying punishment depending upon the object of the conspiracy. The statute states, in relevant part:
Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy punishable as provided herein:
(a) except as provided in paragraphs (b), (c) and (d) if commission of the offense prohibited by law is punishable by imprisonment for 1 year or more, the person convicted under this section shall be punished by a penalty equal to that which could *345be imposed if he had been convicted of committing the crime he conspired to commit and in the discretion of the court an additional penalty of a fine of $10,000.00 may be imposed. [MCL 750.157a; MSA 28.354(1).]
Finally, it is necessary to also keep in mind the public policy of this state which favors indeterminate sentencing for crimes. MCL 769.8; MSA 28.1080 provides, in part:
When a person is convicted for the first time for the commission of a felony, and the punishment prescribed by law for that offense may be imprisonment in a state prison, the court imposing sentence shall not fix a definite term of imprisonment, but shall fix a minimum term, except as otherwise provided in this chapter. The maximum penalty provided by law shall be the maximum sentence in all cases except as provided in this chapter and shall be stated by the judge in imposing the sentence.
It was this public policy which the Court enforced in People v Tanner, 387 Mich 683; 199 NW2d 202 (1972).
In this case, we must discern the legislative intent when the murder, conspiracy, and indeterminate sentence statutes intersect. There are several factors which help resolve this.
First, the Court should consider two well-established principles of statutory construction. In construing criminal statutes, a guiding principle is lenity. People v Bergevin, 406 Mich 307, 311; 279 NW2d 528 (1979). The principle of lenity guides in both determining the criminality of conduct as well as the appropriate punishment. In addition, a statute should be construed so as not to produce irrational or arbitrary results, or a result which would be inconsistent with the purposes and poli*346cies of the act in question. Salas v Clements, 399 Mich 103, 109; 247 NW2d 889 (1976).
Second, the history of the common law in Michigan’s criminal code shows a strong policy to punish inchoate offenses less severely than the substantive offense. A conspiracy to commit an offense was only a misdemeanor at common law. Likewise, persons who attempt to commit an offense face a drastically reduced sentence over those who actually commit the crime. MCL 750.92; MSA 28.287.
Applying the foregoing principles, I would conclude that the Legislature did not intend that the statutory division of common-law murder into first and second degree be assimilated into the conspiracy statute. While murders themselves are punished pursuant to first and second degree, I do not think the Legislature intended to make conspiracy to commit first-degree murder a crime distinct from conspiracy to commit second-degree murder. It seems more consistent with reason and the probable legislative intent that the Legislature, in the conspiracy statute, intended to punish one crime — that of conspiracy to commit common-law murder. It would be punishable by a sentence of life or any term of years. In turn, the "lifer law,” precluding parole consideration of first-degree murder convictions, would be inapplicable because the conspiracy conviction would not be based on the statutory crime of first-degree murder, to which the lifer law refers.
Support for such an interpretation can be found in the statute punishing assault with intent to murder. It makes no distinction between first- and second-degree murder:
Any person who shall assault another with intent to commit the crime of murder, shall be guilty of a felony, punishable by imprisonment in *347the state prison for life or any number of years. [MCL 750.83; MSA 28.278.]
In People v Scott, 6 Mich 287 (1859), the Court discussed the statutory distinction between first- and second-degree murder, as it applied to assault with intent to murder. The Court held that a murder amounting to either first or second degree was sufficient to complete the assault offense. In a concurring opinion, Justice Christiancy explained that the statutory murder distinction was relevant only in murder, not assault, prosecutions:
The [murder] statute has not altered the common law definition of murder; but, recognizing it, has simply divided it into classes, or degrees of enormity, for the purpose of apportioning the punishment; and this only when the prosecution is for murder, eo nomine. . . .
Perhaps the more appropriate charge, because the more simple, less difficult, and more easily intelligible, would have been to give the jury a definition of murder at common law, and to have instructed them that if they should find the prisoner committed the assault with intent to kill, and that the circumstances were such that, if death had ensued, the killing would have constituted murder under this common law definition, they should find him guilty, otherwise, not guilty. [Emphasis added. 6 Mich 296-297.]
I think the reasoning found in Scott is particularly analogous to the present case, and supports a conclusion that the conspiracy statute likewise refers to common-law murder. Such an interpretation would eliminate the problem of deciding whether conspiracy to commit second-degree murder can exist, and whether, pursuant to this possibility, an instruction in accord with People v Jenkins, 395 Mich 440; 236 NW2d 503 (1975), is required.
*348If the statutory distinctions between first- and second-degree murder are applied to conspiracy, it would do violence to the express statutory language of the conspiracy statute not to sentence a defendant convicted of conspiracy to commit first-degree murder to life without parole. A first-degree murder conviction requires such a sentence, and the conspiracy statute requires a sentence "equal to that” of the target offense. Thus, a decision to use the statutory distinctions of murder requires a nonparolable life sentence. Certainly the Legislature could not have intended, in the conspiracy statute, to create such an inconsistent punishment: Defendant, who only planned the conspiracy, gets life without parole; the coconspirators who did the act get life with the possibility of parole, or an indeterminate sentence (pursuant to their plea of assault with intent to murder).
Lastly, the conclusion that "conspiracy to commit murder” refers to common-law murder furthers the additional legislative policy of judicial sentencing discretion.1
Archer, J., concurred with Cavanagh, J. Levin, J.(separate opinion). Stephen Rafel Fer*349nandez1 was convicted of conspiracy to commit first-degree murder and assault with intent to commit murder.2 He was sentenced to life imprisonment on the conspiracy conviction and ten to twenty years on the assault conviction.
The trial judge refused to instruct on conspiracy to commit second-degree murder stating that second-degree murder is unplanned murder and that the Court of Appeals had held that conspiracy to commit second-degree murder was not a necessarily included offense of conspiracy to commit first-degree murder.3 In contrast with the Court of *350Appeals decisions relied on by the judge,4 in the instant case the intended victim of the conspiracy, although assaulted, was not killed.
The Court of Appeals in the instant case, noting that panels of the Court were divided on the *351question,5 agreed with the reasoning of the decisions relied on by the judge in declining to instruct on conspiracy to commit second-degree murder.6 The Court agreed, however, with Fernandez that a life sentence on the conspiracy conviction was not mandatory and, rejecting his other assignments of error, otherwise affirmed the convictions and remanded for resentencing.
I would hold that the judge erred in refusing to instruct on conspiracy to commit the offense of murder, graded under the Penal Code as second-degree murder, and would affirm the conspiracy conviction as conspiracy to commit murder and remand for resentencing.
i
The Penal Code provides that "[a]ny person who conspires together with 1 or more persons to commit an offense prohibited by law” (emphasis supplied) is guilty of the crime of conspiracy and "shall be punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit . . . .”7
The trial judge, the Court of Appeals, and the opinion of the Court hold that the "offense” prohibited by law in all conspiracies to commit murder is first-degree murder and can never be second-degree murder. I would hold that the "offense” *352prohibited by law is murder without grading or specification of a degree.
A
Assuming that the offense of conspiracy to murder is graded, there might be a conspiracy to commit second-degree murder. This Court has held that "in order to convict a defendant of murder, as that term is defined by Michigan case law, it must be shown that he acted with intent to kill or to inflict great bodily harm or with a wanton and wilful disregard of the likelihood that the natural tendency of his behavior is to cause death or great bodily harm.”8 (Emphasis supplied.) A conspiracy to inflict great bodily harm or to act with a wanton and wilful disregard of the likelihood that the natural tendency of the behavior is to cause death or great bodily harm would not — assuming, again, that the offense of conspiracy to murder is graded —-justify a charge of conspiracy to commit first-degree murder, and would, at most, depending on the circumstances, justify a charge of conspiracy to commit second-degree murder.
B
Be that as it may, conspiracy to murder is the "offense prohibited by law” (emphasis supplied) under the conspiracy provision of the Penal Code without grading or specification of a degree. In People v Johnson, 427 Mich 98, 107-108; 398 NW2d 219 (1986), the lead opinion declared that "murder is a single offense” (emphasis supplied), and that the degree of the offense need not be stated in the information or established at the preliminary examination:
*353Neither statute nor case law requires specification of the degree of murder at a preliminary examination where open murder is charged in the information. Indeed, at common law, there was no specification of degree of murder because all unexcused and unjustified homicides committed with malice were murder punished by death. Perkins, Criminal Law (2d ed), p 88. Speciñcation of degree is a legislative innovation used to distinguish between those murders meriting the harshest punishment and those murders meriting a less severe punishment. Id., pp 88-89. MCL 767.44; MSA 28.984 simply validates simplified short-form informations for the charging of various crimes. The ”open murder” statute, MCL 767.71; MSA 28.1011, recognizes that murder is a single offense and that, at the informational stage, no speciñcation of degree is required. The information occurs after and depends upon the bindover for the possible charges. MCL 767.45; MSA 28.985 requires that an information contain merely "[t]he nature of the offense stated in language which will fairly apprise the accused and the court of the offense charged . . . .” MCL 767.71; MSA 28.1011 provides that an indictment or information charging murder need only set forth the "charge that the defendant did murder the deceased . . . .” [Emphasis supplied.]
This recognition that murder is a single offense would seem to require recognition that the "offense prohibited by law” (emphasis supplied) under the conspiracy provision of the Penal Code is murder without grading or specification of a degree of that offense.
ii
Section 316 of the Penal Code provides that all "[.m]urder which is perpetrated by means of poison, lying in wait, or any other wilful, deliberate, and premeditated killing” (emphasis supplied) and *354murder committed in the perpetration or attempt to perpetrate certain felonies shall be murder of the first degree, and a mandatory life sentence shall be imposed.9 Section 317 provides that "[a]ll other kinds of murder shall be murder of the second degree” (emphasis supplied) and, in the discretion of the court, shall be punished by any term of years or imprisonment for life.10 Section 318 provides that, unless a jury is waived, "[t]he jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder of the first or second degree . . ."11 (Emphasis supplied.)
In grading murder into murder of the first and second degree, in providing for a mandatory life sentence for first-degree murder, in confiding to the judge discretion to sentence for any term of years up to life when the defendant is convicted of second-degree murder, in providing that a jury decides whether the degree of the offense is first or second, the Legislature contemplated that a jury— not a judge — would decide whether the mandatory life sentence must be, or a less severe sentence might be, imposed on a person found by the jury to have committed the offense of murder.
Section 318 of the Penal Code requires the jury to assess the actor’s state of mind at the time of a killing; the concept of premeditation and deliberation focuses under § 318 on the state of mind of the actor at the time of a killing. Section 318 does not provide for jury assessment of the actor’s state of mind at the time an agreement or conspiracy to murder may have been entered into.12 Since only *355the jury can, consistent with §318, grade the offense as first degree and thereby require a mandatory life sentence, and § 318 provides for jury assessment of the actor’s state of mind only if there is a killing, absent a killing there can be no jury determination whether there was premeditation and deliberation and no finding of first degree.
To be sure, if the agreement is performed, the conspirators, because they presumably acted with ample premeditation and deliberation, might be convicted of first-degree murder, but it does not follow that the murder that they conspired to commit must or even might, consistent with § 318, be characterized, without jury assessment as a matter of law, as first-degree murder.
hi
The grading of murder into first- and second-degree murder seeks to distinguish through the concept of premeditation and deliberation between hot-blooded and cold-blooded murder. The Legislature sought thereby to distinguish between the most heinous and less heinous killings. That purpose of the grading system cannot be implemented when there is no killing.
While the offense of conspiracy is committed when the agreement is entered into, and, if conspired murder were to be committed, it would likely be a premeditated and deliberated murder, the essence of the concept of premeditation and deliberation is that on reflection in a cool state of mind the actor might — even at the last moment— refrain from killing the other person. Until a fatal blow is struck it is not too late, and unless a fatal *356blow is struck there has not been a "wilful” killing with "premeditation and deliberation.” Unless there is a killing, there is no way of knowing whether the actor would, even after blows have been struck, on further last-minute or even last-second deliberation, have changed his mind, refrained from striking a fatal blow, and not killed at all and, thus, no way of making the jury assessment contemplated by § 318.13 While a last-minute change of mind might not relieve the actor of criminal responsibility for conspiring to murder, he is not subject to criminal responsibility for conspiracy to commit first-degree murder because the jury cannot make the assessment contemplated by § 318.
The grading system and the threat of a mandatory life sentence also seek to deter killing where there is an opportunity to premeditate and deliberate in a reflective and cool state of mind. Construing the Penal Code as requiring imposition of a mandatory life sentence whenever a conspiracy to kill is formed is a disincentive to abandoning the plan to kill and thus is inconsistent with that purpose of the grading system.14
iv
Under § 318, the jury alone determines whether *357the degree of the offense is first or second. If there is an actual killing, the judge could not, however clear or even undisputed the evidence, deprive the accused of jury assessment and determination of the degree of the offense of murder. That central concept of § 316 (defining first-degree murder), § 317 (defining second-degree murder), and § 318 (defining the role of judge and jury) should guide decision in the instant case. The conspiracy and murder provisions of the Penal Code should be construed to preserve the allocation of roles provided for in § 318 and to preclude a judge from taking from the jury the assessment of the degree of the offense of murder.
Construing the conspiracy and murder sections of the Penal Code in the manner suggested would eliminate the risk that a person charged with conspiracy to murder where there was no killing will be subjected to a mandatory life sentence with the possibility, depending on what occurs on remand, that he may never be paroled, although persons who actually kill are not infrequently sentenced to life terms or a lesser number of years of imprisonment and are paroled after ten years or less.
The lodestar of statutory construction is legislative intent. It is not consonant with the statutory scheme to construe the provisions of the Penal Code, permitting imposition of a mandatory life sentence only upon jury determination that the degree of the offense is first and not second, as eliminating as a matter of law, without jury assessment of the degree of the offense, the possibility of a sentence of less than life imprisonment when a conspiracy to murder does not result in a killing.
I would modify the judgment of conviction to show the conspiracy conviction as conspiracy to murder and remand for resentencing.
I am in agreement with the Court of Appeals statement in this regard:
The Legislature wanted to make it clear that in sentencing for conspiracy, the sentencing judge had discretion to impose just as severe a maximum sentence as for the substantive offense. The Legislature was not thinking of a mandatory sentence, which is a limitation upon sentencing discretion.
Thus, when the Legislature used the words "a penalty equal to that which could be imposed,” we believe that the legislative intention was to authorize and empower the sentencing judge as to the maximum penalty that he could impose. Applied in this case, we believe that the sentencing judge "could” impose a life sentence if, in his discretion, he believed it advisable. We do not, however, conclude that he was required to impose a life sentence in a situation such as this where no murder, in fact, occurred. [143 Mich App 388, 405; 372 NW2d 567 (1985).]
MCL 750.157a; MSA 28.354(1), MCL 750.316; MSA 28.548.
MCL 750.83; MSA 28.278.
The judge referred to People v Hamp, 110 Mich App 92, 102-103; 312 NW2d 175 (1981), People v Jackson, 114 Mich App 649, 666-667; 319 NW2d 613 (1982), and People v Perry, 115 Mich App 533; 321 NW2d 719 (1982).
In Hamp, the defendant was convicted of conspiracy to commit first-degree murder and first-degree murder. The judge presumably instructed on second-degree murder pursuant to People v Jenkins, 395 Mich 440, 442; 236 NW2d 503 (1975), but did not instruct sua sponte on conspiracy to commit second-degree murder. In affirming, the Court of Appeals said:
The gist of the offense lies in the unlawful agreement between two or more persons to do the unlawful act. [People v] Atley [392 Mich 298; 220 NW2d 465 (1974)], [People v] Wright [(On Remand), 99 Mich App 801; 298 NW2d 857 (1980)]. All the requisite elements of the crime of conspiracy are met when the parties enter into the mutual agreement, and no overt acts necessarily must be established. People v Scotts, 80 Mich App 1, 14-15; 263 NW2d 272 (1977). Thus, conspiracy is a crime separate and distinct from the substantive offense. People v Tinskey, 394 Mich 108; 228 NW2d 782 (1975), People v Carter, 94 Mich App 501, 504-505; 290 NW2d 46 (1979). The crime of conspiracy punishes the "planning” of the substantive offense; the substantive offense punishes the actual commission of the crime. People v Berry, 84 Mich App 604; 269 NW2d 694 (1978).
Since prior "planning” and "agreement” are necessary, mandatory requisite elements of the crime of conspiracy, we find it analytically consistent to "plan” to commit first-degree murder but logically inconsistent to "plan” to commit second-degree murder. To prove a conspiracy to commit murder, it must be established that each of the conspirators have the intent required for murder and, to establish that intent, there must be *350foreknowledge of that intent. Foreknowledge and plan are compatible with the substantive crime of first-degree murder as both the crime of conspiracy and the crime of first-degree murder share elements of deliberation and premeditation. Prior planning denotes premeditation and deliberation. The elements of conspiracy, conversely, are incompatible and inconsistent with second-degree murder. One does not "plan” to commit an "unplanned” substantive crime. It is not "absence” of the elements but the "inconsistency” of the elements which lead us to conclude that one conspires to commit first-degree murder but not second-degree murder. Therefore, because of this inconsistency between the requisite elements of conspiracy and second-degree murder, we cannot conclude as a matter of law that conspiracy to commit first-degree murder includes the lesser offense of conspiracy to commit second-degree murder. Therefore, we find no error in the trial court’s failure to instruct, sua sponte, as to the latter offense.
In Jackson, the defendant was convicted of conspiracy to commit second-degree murder and second-degree murder. The jury was apparently instructed without objection that the defendant could be convicted of conspiracy to commit second-degree murder. The Court, relying on the reasoning of Hamp, agreed with the defendant that he could not be convicted of conspiracy to commit second-degree murder:
Although Hamp did not specifically hold that the crime of conspiracy to commit second-degree murder is nonexistent, the rationale of that opinion leads us to such a conclusion. As did the panel in Hamp, we find the elements of conspiracy to be incompatible and inconsistent with the elements of second:degree murder. One does not plan to commit an unplanned substantive offense.
One of the members of the Court of Appeals panel dissented from the vacation of defendant’s conviction of conspiracy to commit second-degree murder stating, among other things, that the defendant had not objected to the instruction.
In Perry, the defendant was also convicted of second-degree murder and conspiracy to commit second-degree murder. On the authority of Jackson, the defendant’s conviction of conspiracy to commit second-degree murder was vacated. The judge who dissented in Jackson was a member of the Court of Appeals panel in Perry and dissented on the same basis.
See n 3.
See People v Hence, 110 Mich App 154, 170; 312 NW2d 191 (1981); People v Owens, 131 Mich App 76, 83; 345 NW2d 904 (1983).
The Court of Appeals said:
We conclude that if a crime cannot logically exist then it cannot be necessarily included in another offense. [People v Fernandez, 143 Mich App 388, 396; 372 NW2d 567 (1985).]
MCL 750.157a; MSA 28.354(1).
People v Aaron, 409 Mich 672, 733; 299 NW2d 304 (1980).
MCL 750.316; MSA 28.548.
MCL 750.317; MSA 28.549.
MCL 750.318; MSA 28.550.
The convoluted jury instructions in the instant case demonstrate *355the difficulty encountered in asking a jury to assess pursuant to § 318 whether the conspiracy is in respect to a wilful, deliberate, and premeditated killing where there has not been an actual killing.
One might say that Fernandez did not change his mind, but at most the two other actors who pled guilty of assault with intent to murder and who testified against Fernandez changed their minds. It is nevertheless, under § 318, for the jury and not for a judge to decide, again assuming there are degrees of the offense of conspiracy to murder, whether the degree of the offense was first or second.
One is reminded of the 1934 amendment (48 Stat 781, 782) of the 1932 Lindbergh Law (47 Stat 326), providing that if the person was "liberated unharmed” the death penalty could not be imposed. See United States v Jackson, 390 US 570, 586 ff; 88 S Ct 1209; 20 L Ed 2d 138 (1968); 1 ALI Model Penal Code and Commentaries, pt II, § 212.1, pp 209-210, 232-237; ALI Model Penal Code (Tentative Draft No 11), pp 19-20; Note, A rationale of the law of kidnapping, 53 Colum L R 540-549 (1953).