dissenting.
The murder conviction here cannot stand. Without more telling evidence of appellant’s intent either to inflict great bodily harm or to assault with a dangerous weapon, she was entitled to have submitted to the jury a lesser included instruction of manslaughter, a crime of homicide founded on an initial intentional act that is not felonious in itself.1 Although the passing of twenty-two years need not and did not preclude successful prosecution of appellant for feloniously causing the death of her son, the evidence did not permit submitting the case to the jury to determine only whether or not Dennis Jurgens was murdered.
1. The murder accusation.
Although circumstantial evidence may be sufficient to support a conviction, it must so “directly” establish guilt as to exclude any other reasonable inference. State v. DeZeler, 230 Minn. 39, 52, 41 N.W.2d 313, 322 (1950). To conclude a jury has made a reasonable decision on evidence, it must appear they gave “due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt.” State v. Norgaard, 272 Minn. 48, 52, 136 N.W.2d 628, 632 (1965).
Circumstantial evidence here was barely adequate, if at all, to characterize the act causing the injury as an intentional felony. The medical expert testimony established the degree of the force that caused the *557injury and nature of the harm done that caused the death. According to these experts the injury could have been caused by the child being struck focally with great force or by a fall with considerable force onto a protruding object. If the child was not struck with a weapon or struck with an unusually forceful blow, but the child fell, as the experts allow, how did this come about? Did appellant cause the fall by striking, throwing, tripping or pushing the child? On the evidence available, the jury was left largely to speculate on the nature of the human act which caused the injury. Evidence on the history of appellant’s abuse shows cause to anticipate simple assault — there is no evidence of prior felonious blows, and the only suggestion of using weapons is testimony of Robert Jur-gens that he and Dennis had been spanked with a wooden spoon or rolling pin or things of that nature. Although the scenario of a serious and unexplained falling injury may reasonably preclude an accident theory, it rationally describes a simple assault in which appellant consciously risked causing death or great bodily harm or used such force that death or great bodily harm was foreseeable. See Minn. Stat. §§ 609.-205(1) & 609.20(2) (1965).
The evidence of repeated battering of the child, and the ultimate diagnosis of particular trauma to the child consistent with the battered child syndrome, are together sufficient circumstantial evidence to show death in the course of simple assault such as to establish first or second degree manslaughter based on an intentional act. See State v. Loss, 295 Minn. 271, 280, 204 N.W. 2d 404, 410 (1973) (reasonable inference of battering parent, based on battered child syndrome, enough with circumstantial evidence to prove first degree manslaughter); State v. Goblirsch, 309 Minn. 401, 405-07, 246 N.W.2d 12, 14-15 (1976) (nonaccidental injuries, defendant’s exclusive control over child, other circumstantial evidence support inference of first degree manslaughter); Schleret v. State, 311 N.W.2d 843, 848 (Minn. 1981) (in view of majority of court, nonaccidental injuries, defendant’s exclusive control over child, and battered child syndrome sufficient to prove first degree manslaughter); cf. State v. Loebach, 310 N.W.2d 58, 62-64 (Minn. 1981) (overwhelming evidence of murder even without battered child syndrome evidence where four month old child suffered severe harm to his head and body, due to blows or total squeezing the body, occurring at least three times over a period of several weeks).2 It is quite another thing, however, to contend there is proof of third degree murder in the course ,of a felony where there is no evidence of an underlying intentional infliction of great bodily harm.
Evidence great bodily harm was suffered is not evidence of intent to cause the same.3 The series of battered child syndrome cases beginning with Loss have affirmed the principle that circumstantial proof of manslaughter can be inferred from the evidence present here: evidence of an assault and the presence of the battering syndrome, along with defendant’s exclusive control. Loss, 295 Minn, at 280, 204 N.W. 2d at 410; Schleret, 311 N.W.2d at 848; Goblirsch, 309 Minn, at 405-07, 246 N.W. 2d at 14-15. The cases have never created a hypothesis of murder from the same evidence without evidence the assault was aggravated or committed with intent to cause great bodily harm.4
*558Respondent faults the defense for failing to produce evidence of a theory explaining Dennis Jurgen’s injuries and death through events other than murder by appellant. The majority likewise cites the absence of evidence proving other than felonious assault of the child. It is improper, however, to place the burden of proof on the defense on a topic not covered by evidence for the state. Moreover, evidence on a history of abuse is compatible with the theory of an underlying simple assault. Critically, as the majority observes, there is no other evidence here as to the nature of the act that fatally harmed the child. If it has done so at all, the state has barely met its burden in a murder prosecution to show an underlying felonious assault.
2. A manslaughter instruction.
Grave injustice may be done by convicting a person of murder without an opportunity to have an important alternative accusation presented to the jury. In this case, the trial court did not address the question whether the evidence required a manslaughter instruction, evidently concluding instead that appellant could not waive the statute of limitations on manslaughter. As the majority indicates, the court’s view on waiver of the statute is in conflict with the rationale and holding in State v. Johnson, 422 N.W.2d 14 (Minn.Ct.App.1988); see also State v. Tupa, 194 Minn. 488, 260 N.W. 875 (1935) (by discussing whether defendant waived statute of limitations, the court implied it was a waivable defense).5 Therefore, we are called upon to independently determine whether a manslaughter instruction was mandated.
As the Minnesota Supreme Court has made evident for cases where a defendant has not deliberately, consciously killed another person, a rational decision on whether evidence shows manslaughter or third degree murder requires a careful depiction of the underlying misconduct that leads finally to death. State v. Adams, 295 N.W.2d 527, 533. Here, the circumstantial evidence on appellant’s underlying criminal act mandates consideration of a lesser included homicide of manslaughter.
The trial court is required to submit a manslaughter instruction if the evidence
would reasonably support a conviction of the lesser degree and at the same time is such that a finding of not guilty of the greater offense would be justified.
State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (1975). The United States Supreme Court reasons:
[A] defendant is entitled to a lesser offense instruction — in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.
Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 1997-98, 36 L.Ed.2d 844 (1973) (emphasis in original).
Under Leinweber, lesser instructions on manslaughter are required where the jury could rationally conclude that the defendant’s conduct, although intentional, was not felonious. See, e.g., State v. Swanson, 307 *559Minn. 412, 416, 240 N.W.2d 822, 825 (1976) (jury could have found defendant culpably negligent where defendant pointed and fired gun at victim who was advancing at him).
In this case, we do not know how the injury was inflicted. The child could have been assaulted with an instrument or other great force directed to his abdomen, or the child could have been injured from a fall set in motion by a simple assault. Appellant had not previously inflicted felonious blows on the child. Appellant’s felonious intent is not established from these facts; they permit a rational conclusion by the jury that appellant committed an intentional wrongdoing constituting first or second degree manslaughter.
A permissible inference of guilt arises from the factors in Loss: the defendant’s exclusive control over the child, a pattern of prior abuse, and nonaccidental cause of death. Loss, 295 Minn, at 280, 204 N.W.2d at 410. However, the inferences Loss recognizes have never been said to exclude the rational hypothesis of recklessness.
Given these facts, the jury had good reason to acquit appellant of third degree murder and a rational basis for convicting her of manslaughter. It was error to submit the case to the jury without a manslaughter instruction.
3. Conclusion
Appellant does not seriously question that the state has convincingly proven her criminal conduct associated with the death of her son 23 years ago. Given the history of senseless injuries to the child, the conviction of his mother has the ring of truth. Appellant is nevertheless entitled to a fair trial. She legitimately contends that a fair trial was contingent on submitting to the jury the question whether appellant’s conduct constituted manslaughter.
For these reasons, appellant is entitled to a new trial, and I respectfully dissent.
. Manslaughter in the second degree involves culpable negligence, intentional conduct not necessarily felonious, whereby the actor "creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another.” Minn.Stat. § 609.205(1) (1965). We must also decide whether a first degree manslaughter instruction was appropriate here; any possible finding this instruction was waived is inappropriate where the trial court evidently took the erroneous position that lesser-included offenses were barred by the statute of limitations that appellant wished to waive. First degree manslaughter involves an intentional non-felony crime, including simple assault, committed "with such force and violence that death of or great bodily harm to any person was reasonably foreseeable.” Minn.Stat. § 609.20(2) (1965); State v. Adams, 295 N.W.2d 527, 533 (Minn. 1980).
. There is evidence here that Dennis Jurgens suffered severe bums two years before he was fatally injured. Although there is evidence this injury was inflicted, no evidence was available to characterize the act causing the injury.
. As the majority observes, intent is generally to be inferred from the nature of the act and surrounding circumstances. State v. Hardimon, 310 N.W.2d 564, 566 (Minn. 1981). It is quite another thing to infer a particular intent where the nature of the act is unknown.
.Unexplainably, the trial court permitted the jury to find third degree murder without finding which of two third degree murder counts was proven. Thus, we do not know whether the jury found an underlying felony assault (1) with intent to inflict great bodily harm or (2) without that intent but with a dangerous weapon. A decision based on use of a dangerous weapon is flawed as much as one founded on an intentional infliction of great harm — there is no evidence a weapon was employed by appellant to hurt the child; in fact, there is no evidence appellant's abuse of the child had ever involved use of a *558dangerous weapon. Moreover, the confusing verdict also leaves open the possibility that the jury speculated on a dangerous weapon and specifically found the absence of an intent to inflict great harm, a finding that emphatically supports consideration of a manslaughter offense. See State v. Swanson, 307 Minn. 412, 416, 240 N.W.2d 822, 82S (1976).
. It should be kept in mind that we are not dealing here with any suggestion that appellant was zealously over-charged, that the trial court arbitrarily submitted to the jury only murder accusations, or that the prosecution unreasonably resisted submission of lesser included accusations. At the time of trial, the parties did not have the benefit of the holding in State v. Johnson, and they could not be confident defendant could legitimately waive the statute of limitations. Because there was room at the time for reasonable differences on the waiver issue, the prosecution could understandably fear obtaining a manslaughter verdict which would be found barred by the statute of limitations. Given the state of the law at the time, a singular effort to compare the evidence with prospective charges was understandably contaminated by the limitations concern; this was a major consequence of the time lapse between the offense and the time of prosecution.