People v. Heflin

Levin, J.

(dissenting in Heflin). We all agree that statutory involuntary manslaughter1 is a cognate offense of murder. Ordinarily, when a defendant requests an instruction on a cognate offense the inquiry is whether the evidence justifies a conviction of the cognate offense.2

We dissent because we disagree with the resolu*531tion of that inquiry in the majority opinion, and because we disagree with statements and suggestions in the majority and concurring opinions.

i

The majority appears to say that the trial court, did not err in refusing to give the requested instruction on statutory involuntary manslaughter because there was no evidence to justify a conviction of that offense.3

The concurring opinion would hold that "accident” is a separate element of statutory involuntary manslaughter.4 We acknowledge that the proposed construction of the statute is plausible. The proposed construction is not, however, the construction that this Court has, in recent cases, placed on the statute. This Court ruled in three cases, decided in 1974-1981, where there was no evidence of "accident,” that the involuntary manslaughter statute was applicable.

A

In People v Doss, 406 Mich 90; 276 NW2d 9 (1979), the defendant, a police officer, was charged with statutory involuntary manslaughter after he shot and killed a suspect at the scene of a crime. There was no evidence that the shooting was an "accident.”5_

*532Doss moved to quash the information after he was bound over for trial. The motion was denied. The Court of Appeals reversed. People v Doss, 78 Mich App 541; 260 NW2d 880 (1977). Relying on three early decisions of this Court,6 the Court of Appeals concluded that the absence of malice was an element of statutory involuntary manslaughter. The Court of Appeals concluded that the prosecutor failed to prove that Doss had acted without malice and that it was therefore error to bind Doss over for trial.7

This Court reversed. A unanimous Court held that the absence of malice is not an element of statutory involuntary manslaughter and that a prosecutor is therefore not required to prove that the defendant acted without malice. Doss, supra, 406 Mich 98-99.8 Since there was no evidence of *533“accident”9 in Doss, a construction that "accident” is an element of the statutory offense is inconsistent with the Court’s decision that Doss was properly bound over on a charge of statutory involuntary manslaughter.10

In People v Germain, 91 Mich App 154; 284 NW2d 260 (1979), the defendant was convicted of first-degree murder in the shooting death of his girl friend. There was no evidence that the shooting was an "accident.”11 The trial court instructed the jury on first- and second-degree murder, but *534refused Germain’s request to instruct on statutory involuntary manslaughter because "there was no testimony adduced from which an affirmative showing could be made of defendant’s state of mind.”12

Relying on this Court’s decision in Doss, supra, the Court of Appeals held that the trial court erred in refusing to give the requested instruction because the only evidence necessary to support a conviction was that the defendant intentionally pointed a firearm at another person who died as a result of the subsequent discharge of the gun.13 The Court of Appeals held, however, that the trial court’s refusal to give the requested instruction was harmless error.14

This Court reversed the decision of the Court of Appeals on the ground that the trial court’s refusal to give the requested instruction on statutory involuntary manslaughter was not harmless error. People v Germain, 411 Mich 858; 303 NW2d 740 (1981).15 In holding that the refusal to give the requested instruction was not harmless error, this Court necessarily concluded that the evidence adduced at Germain’s trial — which did not affirmatively show that the shooting was an "accident”— would have justified a conviction on the statutory *535offense, and, implicitly, that "accident” is not an element of statutory involuntary manslaughter.

People v Fountain, 392 Mich 395; 221 NW2d 375 (1974), is the third case in which the involuntary manslaughter statute was held by this Court to be applicable although there was no evidence of "accident.” Anderson, Carter, and Fountain were convicted of second-degree murder. Carter testified that he "grabbed a gun and fired into the air telling the group of people fighting him and his group to stop and go back. He said that when they kept coming he fired into the group in self-defense without intending to kill anyone.”16

The Court of Appeals said that the evidence supported an instruction on statutory involuntary manslaughter.17 The Court of Appeals said:

If the jury had been instructed on [statutory involuntary] manslaughter, it could have found that the evidence did not prove self-defense but that it did prove the wounding of Charles Flagg from the discharge of a firearm pointed intentionally at him but without malice and that he died from the wounds. [Id, p 499.][18]_

*536This Court affirmed the decision of the Court of Appeals on the ground that the trial court’s refusal to instruct on the lesser included offenses was error requiring reversal. People v Fountain, 392 Mich 401-402.19 The Court held that the evidence — which did not show that the shooting was an "accident” — would have justified a conviction of manslaughter.

B

The import of this Court’s decisions in Doss, Germain, and Fountain is that "accident” is not an element of statutory involuntary manslaughter. On the basis of those decisions, we would hold that the trial court erred in refusing to give the requested instruction.20

Because the jury rejected Heflin’s claim of self-defense, there is no reason to believe that Heflin would have been acquitted altogether had the trial court instructed the jury on statutory involuntary manslaughter. We would remand the case to the circuit court for the entry of a judgment of conviction of statutory involuntary manslaughter and for resentencing.21

c

The majority asserts that it is not departing *537from this Court’s precedents.22 However this Court’s prior decisions are characterized,23 it remains that the involuntary manslaughter statute was deemed applicable on evidentiary records that cannot be meaningfully distinguished from the record in the instant case.

A construction that "accident” is a separate element of statutory involuntary manslaughter is not supported by the text of the statute. Section 329 of the Penal Code provides:

Any person who shall wound, maim or injure any other person by the discharge of any firearm, pointed or aimed, intentionally but without malice, at any such person, shall, if death ensue from such wounding, maiming or injury, be deemed guilty of the crime of manslaughter. [MCL 750.329; MSA 28.561.]

To the extent "accident” means "unintentional,”24 the only element required to be an "accident” by the literal language of the statute is the killing. In terms, the statute does not limit its operation to cases where the discharge of the firearm is an "accident.”25 The statute refers to *538"wounding, maiming or injury” caused by "the discharge of any firearm,” not "the accidental discharge of any firearm.”26

The statute provides that the proscribed act (the intentional pointing or aiming of a firearm at another person) must have been done "without malice.” In the law of homicide, the intention to kill — actual or implied — is called "malice.” The literal language of the statute thus requires that the killing be "unintentional” or, in that sense only, "accidental.”

D

The majority appears to say that the trial court did not err in refusing to give the requested instruction on statutory involuntary manslaughter because there was no evidence to justify a conviction of that offense.27 To the extent the majority would hold that "affirmative” evidence is necessary to justify a finding that a defendant who committed a homicide acted without malice,28 it is clearly mistaken._

*539The fact of homicide gives rise to a permissible inference — not a mandatory presumption — of malice29 without regard to whether, as in the case of statutory involuntary manslaughter, the homicide was committed with a deadly weapon.30

In the instant case, it was undisputed that Heflin killed Petersen. As is typical in homicide cases, there was no direct evidence that Heflin acted with the intention to kill. Malice could only be found by drawing inferences from the circumstances of the killing.

The prosecutor urged the jurors to infer that Heflin had acted with malice. The jurors were not, however, required to adopt the prosecutor’s view of the evidence. Because malice is a permissible inference and not a mandatory presumption, the jurors, accepting the evidence that Heflin killed *540Petersen, need not have been persuaded beyond a reasonable doubt that the evidence supported the inference that Heflin had killed with malice.31

If, consistent with this Court’s precedents, "accident” is not held to be a separate element of statutory involuntary manslaughter, Heflin was entitled to the requested instruction because the jury could have inferred from the evidence that he acted without malice. To the extent the majority would hold otherwise, it in effect adopts the presumption that a person who commits a homicide acted with malice — a presumption that stands in direct conflict with this Court’s precedents.32 It may be, or may seem to be, natural to infer that a defendant acted with malice when the record does not contain affirmative evidence of "accident.” It is not proper, however, for the trial court — or a reviewing court — to draw that inference. Fact finding is for the jury.33

Illustrative is a line of older cases addressing the question whether a trial court may direct a verdict *541of guilty in a criminal case.34 In People v Heikkala, 226 Mich 332, 337; 197 NW 366 (1924), this Court said:

A trial judge, having properly applied the law to the facts in a criminal case in which intent is not involved, and where the facts are undisputed, may say to the jury that it is their duty to bring in a verdict of guilty, but he may not go further and peremptorily direct or compel such verdict.[35][Emphasis added.]

Thus, even when the prosecution’s evidence is uncontroverted, the defendant’s state of mind is always a question of fact for the jury.

ii

As an alternate basis for reversing Heflin’s conviction of second-degree murder, we would hold that the trial court erred in refusing to give the instruction requested by Heflin on common-law involuntary manslaughter.36

For the reasons stated in our opinion in the companion case of People v Landrum, post, pp 573-579, a request to instruct on common-law involuntary manslaughter could not properly be denied simply because the defendant asserted self-defense or because the killing may have occurred during the commission of an unlawful act.37

The evidence in the instant case justified a *542conviction of common-law involuntary manslaughter. The question whether Heflin

—acted with the mens rea for murder: the intention to kill, the intention to cause serious bodily harm, or the intention to create a very high risk of death or serious bodily harm with the knowledge that death or serious bodily harm would be a probable result of his conduct,38 or
—acted with the mens rea for involuntary manslaughter: the failure to exercise ordinary care to prevent a threatened harm to another person where it was apparent to the ordinary mind that the likely result of the failure to use such care would be serious harm to that person,39

was a question for the jury.

There was evidence from which the jury could have inferred that Heflin acted with malice. There was also, however, evidence from which the jury could have inferred that Heflin acted in a grossly negligent manner. Heflin may indeed have created a very high risk of death or serious bodily harm when he fired a shotgun at Petersen. That does not necessarily — as a matter of law — mean, however, that he intended to create that risk or that he intended the risk to materialize. The jury could have found that Heflin did not act with malice, but *543that he was guilty of gross negligence because he failed to exercise care in using the shotgun to defend himself and it was apparent to the ordinary mind that his failure to use such care would result in serious harm to Petersen.

This homicide arose out of a highly emotional domestic dispute. According to all the evidence, the killing occurred shortly after a heated argument between Heflin and his daughter concerning physical abuse of Heflin’s granddaughter. According to Heflin, immediately before the shooting Petersen admitted that he had beaten Heflin’s granddaughter and taunted him about his inability to prevent such abuse. The jury could have inferred that due to the excitement of the situation Heflin had not formed the requisite intent for murder when he shot Petersen.40

The trial court’s error cannot be characterized as "harmless” on the basis that the jury was given the opportunity to convict Heflin of voluntary manslaughter and failed to do so. The rejection of voluntary manslaughter does not necessarily imply that the jurors concluded that Heflin was not in an excited state of mind ("heat of passion”) when he killed Petersen. The jurors may have rejected voluntary manslaughter because they concluded there was not adequate provocation, an element of voluntary manslaughter.

hi

The majority offers two rationales for reversing the decision of the Court of Appeals in addition to its conclusion that there was not sufficient evi*544dence to justify a conviction of statutory involuntary manslaughter.

A

The majority asserts that Heflin "conceded” that he acted with malice when he killed Petersen and that as a result the trial court was not required to give the requested instruction on statutory involuntary manslaughter.41 If Heflin had in fact conceded — which he did not — that he intentionally killed Petersen, there might be some merit in the majority view.

The majority does not identify a basis for its assertion that Heflin so "conceded.” The record does not contain a stipulation that Heflin acted with malice. Nor did Heflin testify that he intentionally killed Petersen.42 There was no direct evidence that Heflin acted with malice.

The assertion that Heflin made such a "concession” ignores the presumption of innocence. Even when a defendant offers no evidence, the prosecutor is required to prove beyond a reasonable *545doubt each element of the charged offense.43 The prosecutor’s evidence — even when "overwhelming” or otherwise uncontradicted — is always balanced against the presumption of innocence.44

The alleged "concession” appears to be partially based on the failure of Heflin’s lawyer to argue to the jury that it should consider convicting Heflin of statutory involuntary manslaughter.45 Before the trial court instructed the jury, Heflin’s lawyer said that he wished to argue that Heflin unintentionally killed Petersen and that the jury should consider convicting Heflin of involuntary manslaughter. The trial court, however, refused to instruct on either statutory or common-law involuntary manslaughter. Heflin and his lawyer should not be faulted for failing to argue to the jury an offense on which the jury was not going to be instructed.

The "concession” may also have been predicated in part on the failure of Heflin’s lawyer to expressly argue to the jury that Heflin "accidentally or unintentionally killed Rich Petersen,” and that he was therefore not guilty of murder.46 It is again relevant that the trial court refused to instruct on either statutory or common-law involuntary manslaughter. In seeking instructions on those offenses, Heflin indicated that he did not necessarily contend that he should be acquitted altogéther because he did not intend to kill Petersen. Heflin *546should not be penalized by invocation of a doctrine of "constructive concession.”47

Any attempt to base a "concession” that Heflin acted with malice on the argument and theories of Heflin’s lawyer also runs afoul of the long-established rule in Michigan that the element of intent in a criminal case may not be supplied by the admissions of the defendant’s lawyer.48

B

The majority would also affirm the trial court’s refusal to give the requested instruction on the basis that the assertion of self-defense is "inconsistent” with a request to instruct the jury on statutory involuntary manslaughter.49 The majority does not explain, except in conclusory terms, why statutory involuntary manslaughter and self-defense are "inconsistent.”

The majority appears to assert that self-defense is "inconsistent” with statutory involuntary manslaughter because self-defense necessarily implies an intentional killing. The majority says that "[a] finding that a defendant acted in justifiable self-*547defense necessarily requires a finding that the defendant acted intentionally, but that the circumstances justified his actions.”50

The statement in the majority opinion is correct. Self-defense does involve some intentional act in response to a perceived threat. The analysis in the opinion is flawed in its attempt to equate an intentional act with intentional killing. The distinction between the intentional perpetration of an act and an unintended result of the act is of paramount importance in the law of homicide.51 If a person was deemed to have intentionally killed whenever death results from the intentional perpetration of an act, involuntary manslaughter could be charged only in bizarre circumstances difficult to hypothesize.

The distinction — recognized in other contexts— between an intentional act and an unintentioned result is also applicable in the context of self-defense. A person who kills in self-defense may not have intended to cause any injury to his assailant; he may have intended merely to frighten him. Or a person who kills in self-defense may have intended to cause his assailant only slight bodily harm.52 In terms of statutory involuntary manslaughter, a person who intentionally pointed or aimed a firearm at another person may not have intended to discharge the weapon, or may have intended to discharge the weapon but not to injure the decedent.

The essence of self-defense is the defendants *548belief that he is confronted with imminent death or serious bodily harm. In Doss53 and Fountain,54 the defendants asserted self-defense, and that assertion was apparently not thought to be "inconsistent” with statutory involuntary manslaughter. If a defendant believes he is confronted with imminent death or serious bodily harm, self-defense may be interposed as a defense whether he intentionally or unintentionally killed the assailant. Until this Court rules that self-defense may not be interposed when the charge is involuntary manslaughter, the majority errs in assuming, as a basis of decision in the instant case, that a person who asserts that he killed in self-defense acted with malice.

Homicide, the killing of one person by another, may be innocent or criminal. If criminal, it may be murder or manslaughter. A defendant who claims self-defense is asserting that the homicide was innocent. An assertion of self-defense may — in some circumstances — include an admission that the defendant committed the homicide. It does not, however, necessarily include an admission that in committing the homicide, the defendant acted with malice — the requisite mental state for murder.

By asserting self-defense and requesting an instruction on manslaughter, Heflin was in effect saying: "I did not commit any crime because I acted with lawful justification — in self-defense. If the jury finds that I did not act in self-defense and that I am guilty of a crime, I am guilty of manslaughter and not murder because I did not intend to kill.” Heflin’s alternative defenses were not "inconsistent.”

A defendant in a criminal case is entitled to a *549general verdict on the merits.55 The right to the return of a general verdict is one of the substantial elements of the constitutional right of trial by jury.56 Even when a defendant asserts an affirmative defense, the ultimate issue at trial — and the question the jury must be permitted to answer by general verdict — is whether the defendant is guilty or innocent of the crime charged. A trial court may not limit the jury to a special verdict on the basis of the defendant’s asserted defense.57 That is the law even when the defendant does not deny that he committed acts comprising the charged offense.58

If a defendant, who is charged with murder, asserts self-defense, the trial court could not — consistent with the defendant’s constitutional right to a general verdict — limit the jury’s choices to guilty of murder or "not guilty by reason of self-defense.” This Court would in effect so limit the possible verdicts if its decision today means that a defendant who asserts self-defense admits that he killed the decedent and that he did so intentionally.

Absent direct evidence, the question whether a person who killed in self-defense acted with malice *550can only be resolved by drawing inferences from the circumstances of each particular case. Drawing inferences is the province of the jury. The malice question should not be resolved by the court by adoption of a fictional presumption that would be applicable where the evidence of absence of malice is deemed by the court to be "more persuasive.”

In the final analysis, the statement in the majority opinion that the assertion of self-defense is "inconsistent” with statutory involuntary manslaughter reflects an assessment by the majority that the evidence shows that Heflin intended to kill Petersen. That assessment invades the province of the jury.

The question was not whether the evidence was sufficient to support a jury finding that Heflin acted with malice, but whether the evidence would have justified a finding that Heflin acted without malice and was therefore guilty of involuntary manslaughter.

We would remand the case to the circuit court for the entry of a judgment of conviction of statutory involuntary manslaughter and for resentencing.59

Cavanagh, J., concurred with Levin, J.

Any person who shall wound, maim or injure any other person by the discharge of any firearm, pointed or aimed, intentionally but without malice, at any such person, shall, if death ensue from such wounding, maiming or injury, be deemed guilty of the crime of manslaughter. [MCL 750.329; MSA 28.561.]

The majority states, however, that "even if we agreed with the defendant that he satisfied all the elements of statutory involuntary manslaughter, we disagree that the trial court erred in not instructing the jury on the offense.” See ante, p 498.

See ante, p 504 ("a trial court need not instruct the jury on inconsistent theories when neither party produces a modicum of evidence in support of a particular theory”). See also ante, pp 500-504.

The majority says that there was no evidence to justify a conviction of statutory involuntary manslaughter (see n 3), but does not explain wherein the evidence was insufficient. The concurring opinion says that there was no evidence of "accidental” discharge of a firearm. See ante, p 517.

In this case, the evidence at preliminary examination does not indicate the gun was accidentally ñred. The evidence ap*532pears to indicate defendant intended to fire the gun and that he hit what he aimed at. .. . [T]he evidence shows that "the weapon was deliberately aimed at the complaining witness, and deliberately fired.” At the moment defendant pulled the trigger, he intended "to cause the very harm” that resulted. There is no evidence to support a ñnding that the death resulted from the careless use of Brearms, that the shot was Bred accidentally, or that defendant did not intend to harm the decedent. [People v Doss, 78 Mich App 541, 553-554; 260 NW2d 880 (1977). Emphasis added.]

People v Chappell, 27 Mich 486, 487-488 (1873), People v McCully, 107 Mich 343, 344; 65 NW 234 (1895), and People v Peterson, 166 Mich 10, 13; 131 NW 153 (1911).

Id., pp 549-554.

The Court of Appeals also held that the prosecutor failed to prove that the killing was not justified as a proper use of force in making an arrest. Id., pp 554-559. The Court discussed, but did not decide, whether the prosecutor also failed to prove that the killing was not justified as a lawful use of force in self-defense. Id., pp 559-560.

This Court said of the decisions on which the Court of Appeals relied (see n 6):

While we are mindful of the line of cases beginning with People v Chappell, supra, supporting such a position [that absence of malice is an element of statutory involuntary manslaughter], we believe that the reasoning of those cases has *533been seriously undermined by this Court’s decision in People v Chamblis, 395 Mich 408, 424; 236 NW2d 473 (1975) .... [Id., p 98.]

This Court also held that the magistrate had not abused his discretion in finding that the killing was not justified as a matter of law. Id., p 103. Cf. n 7.

See n 5.

The defendant in People v Couch, 176 Mich App 254; 439 NW2d 354 (1989), lv gtd 434 Mich 851 (1990), was also charged with statutory involuntary manslaughter although there was no evidence of "accident.”

At the preliminary examination, a police officer testified:

"He [Germain] continued to state that they [Germain and the decedent] had gone out that night and she had been giving him a hard time nagging. I believe he said the last six months, and upon returning home she continued to keep this nagging up, apparently at which he, if I remember correctly, the quote was he told her, '[s]hut your mouth bitch.’ He stated he had slapped her on the side of the head, at which time he held his fist up. I presume showing what he used to do it with.
"At this point, Mr. Germain stated she continued to keep nagging at him, at which time he slapped her along the other side of the head and he said that he could tell that he had hit her pretty hard, I believe was his words, because her eyes were swelling up on both sides of her head.
"At this point, as I recall, Mr. Germain stated he said, '[o]kay, I’ll show you,’ and he said he went and got the shotgun. Prior to this he said he threw her on the bed. He didn’t state which room this was, which bedroom this was, but he stated he had thrown her on the bed and then stated, 'I’ll show you’ and he said he went and got the shotgun and shot her.” [Id., pp 160-161.]

Id., p 158.

Germain, supra, pp 158-159.

The Court of Appeals vacated Germain’s conviction of first-degree murder because there was insufficient evidence of premeditation. Id., pp 166-167.

Jd„ p 159.

The Court’s order read, in pertinent part:

[W]e reverse the Court of Appeals judgment because in the circumstances of this case the trial court’s refusal to instruct the jury on manslaughter under MCL 750.329; MSA 28.561 was not harmless error, [ief.]

People v Fountain, 43 Mich App 489, 491; 204 NW2d 532 (1972).

It might be sought to distinguish Fountain on the ground that Heflin did not testify that he did not intend to kill Petersen. Such a distinction would ignore that the jurors could infer that Heflin did not intend to kill Petersen even though there was no affirmative testimony to that effect. See § i, part d.

Id, pp 498-499.

The Court of Appeals also said that the evidence supported giving instructions on assault with intent to do great bodily harm less than murder and on common-law manslaughter. Id., p 499. The Court was uncertain whether the defendants had actually requested the instructions because the record did not contain defense counsels’ written requests for instructions. Id., p 498.

The Court addressed the instructional issue because it was reversing the defendants’ convictions on other grounds, namely, the trial court’s failure to provide the defendants an opportunity to be present when the court conducted an inquiry into jury tampering.

See ante, p 503 ("a defendant who relies entirely upon the defense of self-defense cannot expect the trial judge to instruct the jury regarding statutory involuntary manslaughter”).

The Court disagreed with the Court of Appeals on the jury tampering issue (see n 17), but affirmed the reversal of the defendants’ convictions on the basis of the instructional error.

The Court also found that the defendants had properly requested instructions on lesser included offenses. Id., p 401. See n 17.

We agree with the conclusion of the Court of Appeals that there was evidence that Heflin intentionally pointed a firearm at Petersen and that Petersen died as a result of the discharge of the firearm. See People v Heflin, unpublished opinion per curiam of the Court of Appeals, decided August 13, 1986 (Docket No. 85513), p 3. The majority appears to agree with this assessment of the record. See ante, p 499.

With, of course, the option of retrial on a charge of second-degree murder.

[W]e see no basis for the dissent’s allegations that we have failed to "acknowledge” or "justify” a departure from prior decisions. Put simply, we have not previously decided the issue before us today, and there is no binding precedent from which we must acknowledge or justify a departure. [Ante, p 498, n 13.]

See ante, p 496, n 10.

According to one source, "accidental” means: "1. Occurring unexpectedly and unintentionally; by chance.” The American Heritage Dictionary, Second College Edition (1982), p 72.

Thus, the concurring opinion is incorrect as a matter of textual analysis when it says that "[a]s defined in MCL 750.329; MSA 28.561, statutory involuntary manslaughter is a very narrow criminal offense which is applicable only where it can be shown that the victim died as a result of a wound from a weapon intentionally aimed but accidentally discharged.” Ante, pp 516-517 (emphasis added).

Compare MCL 752.861; MSA 28.436(21):

Any person who, because of carelessness, recklessness or negligence, but not wilfully or wantonly, shall cause or allow any firearm under his immediate control, to be discharged so as to kill or injure another person, shall be guilty of a misdemeanor ....

See n 3.

If the basis of the holding that the evidence did not justify a conviction of the lesser offense is that there was no evidence of absence of malice, then Doss would in effect be overruled because in Doss the Court held that the absence of malice was not an element of statutory involuntary manslaughter. See n 8 and the accompanying text. Surely the majority would not adopt a double standard under which the defendant, when he seeks an instruction on a lesser offense, is required to offer some evidence respecting an "element” that the prosecutor would not be required to prove had the lesser offense been the charged offense.

See Maher v People, 10 Mich 212, 218 (1862), and People v Scott, 6 Mich 287, 296 (1859). See also People v Stinson, 58 Mich App 243, 248; 227 NW2d 303 (1975), and People v Morrin, 31 Mich App 301, 317-319; 187 NW2d 434 (1971).

People v Martin, 392 Mich 553, 561; 221 NW2d 336 (1974) ("The law does not imply malice where a deadly weapon is used. Michigan has long ago considered malice a permissible inference to be drawn by the jury rather than a presumption of law”). See also People v Jacobson, 400 Mich 859; 282 NW2d 922 (1977), rev’g People v Jacobson, 72 Mich App 489; 250 NW2d 105 (1976).

In People v Richardson, 409 Mich 126, 143-144; 293 NW2d 332 (1980), the Court explained:

The portion of the instruction which stated that the law implies malice "from the unprovoked, unjustifiable, or inexcusable killing” or when "a man kills another suddenly and without provocation” had the effect of withdrawing from the jury the essential factual issue of the existence of malice. The law, of course, does not imply malice from a sudden and unprovoked killing, and it was error to so instruct. The necessary factual element of malice may be permissibly inferred from the facts and circumstances of the killing, but it can never be established as a matter of law by proof of other facts. [Emphasis in original.]

See also People v Hawley, 417 Mich 975; 332 NW2d 398 (1983), rev’g People v Hawley, 112 Mich App 784, 787-788; 317 NW2d 564 (1982).

For this reason, the concerns expressed by the majority (see ante, p 504) that "the jury conceivably could convict a defendant of a lesser crime upon the basis of factors inconsistent with and wholly unrelated to the evidence introduced at trial,” are inapposite.

See ns 29-30 and the accompanying text.

See Maher, n 29 supra, p 218:

It is for the court to define the legal import of the term, malice aforethought, or, in other words, that state or disposition of mind which constitutes it; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as in their judgment, they deserve: and that the court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, as presumption of law. If courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist. [Emphasis in original.]

The cases are collected and discussed in People v Deneweth, 14 Mich App 604, 610-617; 165 NW2d 910 (1968) (concurring opinion).

See also People v Howard, 179 Mich 478, 489-490; 146 NW 315 (1941), People v Warren, 122 Mich 504, 517-518; 81 NW 360 (1899), and People v Neumann, 85 Mich 98, 104; 48 NW 290 (1891).

The Court of Appeals affirmed the trial court’s refusal to give the requested instruction. See Heflin, n 20 supra, p i, n 2.

Heflin sought to make the same argument to the jury that the defendant in People v Landrum, post, advances in this Court (i.e., gross negligence in the use of force in self-defense). Although Heflin *542was denied leave to cross appeal, cross appeal is not required unless the appellee seeks relief not granted by the Court of Appeals; Heflin properly seeks aflirmance of the decision of the Court of Appeals remanding the case for a new trial on the basis that the Court of Appeals and the trial court erred in concluding that a requested instruction on common-law involuntary manslaughter was not required.

See CJI 16:2:02 (murder where first-degree felony-murder is the charged offense), and 16:3:01 (second-degree murder).

See CJI 16:4:05 (gross negligence).

In concluding that the evidence was sufficient to justify a conviction of involuntary manslaughter, we express no opinion on the doctrine of "imperfect self-defense.” In the companion case of People v Landrum, post, p 582, the Court expressly decided not to consider the doctrine of "imperfect self-defense.” 431 Mich 906 (1988).

In our opinion, a significant difference exists between requiring the plaintiff to prove a negative element [the absence of malice] and a situation in which the defendant concedes that he intentionally killed the victim, but argues that he had a legal justification for doing so. In the instant case, defendant could have required the prosecutor to prove that the defendant had the requisite mens rea for murder either by not conceding as much or arguing in the alternative. He chose not to do so. Rather, he chose to concede an element in order to proceed with his sole ground for defense. [Ante, p 499.]

Heflin testified that he shot Petersen because he was afraid:

Q. Why don’t you tell us which reason you had for shooting him. Was it because' you were scared or because you were upset?
A. Because I was afraid of what he was going to do to my family, because I was scared.

The majority opinion is incorrect when it suggests that in the instant case the prosecutor did not have the burden of proving that Heflin acted with malice. See ante, p 499 (quoted in n 41).

See also n 35 and the accompanying text.

See ante, p 503 ("a defendant who relies entirely upon the defense of self-defense cannot expect the trial judge to instruct the jury regarding statutory involuntary manslaughter, a crime neither supported by the evidence nor presented to the jury by the defendant or the prosecutor”) (emphasis added).

5 Ante, p 502. See also ante, p 499 (quoted in n 41).

See, generally, People v Chamblis, 395 Mich 408, 426; 236 NW2d 473 (1975), where the Court said:

If the evidence shows that the defendant committed a crime of lesser degree than that with which he was charged, he should be found guilty of that offense. He should not escape punishment for lack of evidence of an element not requir'ed to convict of the lesser offense. Nor should he be convicted of a higher offense because the jury recognizes that he did commit some offense. Society has a legitimate interest in the jury’s freedom to act according to the evidence. [Emphasis in original.]

See People v Hall, 86 Mich 132, 133; 48 NW 869 (1891) ("A conviction in a criminal case, involving the question of intent, cannot be predicated upon the admissions of counsel”). See also Julian v United States, 236 F2d 155, 158 (CA 6, 1956).

See ante, pp 498 and 500-502.

Ante, p 503.

The distinction between an intentional act and an unintentional result is the basis of the involuntary manslaughter statute, which proscribes the intentional pointing or aiming a firearm when done without the intention to kill.

And, of course, a person who kills in self-defense may have intended to kill his assailant or otherwise may have acted with malice.

See n 7.

See the text accompanying n 18.

See People v Woody, 380 Mich 332, 337-338; 157 NW2d 201 (1968) , People v Clark, 295 Mich 704, 707; 295 NW 370 (1940), and People v Marion, 29 Mich 31, 40-41 (1874).

See Clark, n 55 supra, p 707.

See Woody, n 55 supra, p 337 (the defendant asserted that he was not guilty by reason of insanity). Accord People v Way, 22 Mich App 473, 476-478; 177 NW2d 729 (1970), and Deneweth, n 34 supra, p 606. See also People v Young, 20 Mich App 211, 215-216; 173 NW2d 793 (1969) . Cf. City of East Lansing v Deutsch, 19 Mich App 74, 86-90; 172 NW2d 392 (1969) (the trial court was not permitted to direct a guilty verdict where the defendant did not deny violating a municipal ordinance, but instead claimed unsuccessfully that the ordinance was unconstitutional).

By pleading not guilty, a defendant puts in issue every element of the prosecution’s case. With the exception of ultimate facts which the defendant himself admits at trial, the prosecution’s evidence must be weighed against the presumption of innocence even when the prosecution’s evidence is "overwhelming” or otherwise uncontradicted.

See n 21 and accompanying text.