(dissenting). Because I disagree with the lead opinion’s conclusion that the instructions given violated the holding of People v Aaron, 409 Mich 672; 299 NW2d 304 (1980), by “allowing the jury to convict defendant of murder from his intent to commit the underlying crime alone,” I respectfully dissent. Ante, p 392. The trial judge did not charge the jury that the defendant could be convicted of felony murder if it found that defendant committed a statutory felony and death resulted. Nor did the judge charge the jury that it could find malice from the intent to commit the underlying felony alone. The instruction given correctly defined second-degree murder five separate times and the instruction the lead opinion finds was error actually advised the jury twice that the defendant’s intent may be proved by what he said or did, how he did it, “or any other facts and circumstances in evidence.”
The lead opinion’s contention that the factfinder might have understood this instruction to require it to find malice from intent alone because it “did not require the jury to consider the facts and circumstances, but merely allowed the jury to consider them”1 is illogical. Since the jury was allowed to con*413sider all the facts and circumstances in evidence in determining whether defendant created a high risk of death or serious bodily injury, ipso facto it was not required to find malice from the intent to commit the felony alone.
Given the evidence, the arguments, and the instructions as a whole, there is no reasonable possibility the jury thought that defendant could be convicted without a finding beyond a reasonable doubt that Mr. Dumas himself acted with malice in respect to the killing of the decedent.2 The instruction adequately protected the defendant’s rights by fairly presenting the issue to be determined, People v Dupie, 395 Mich 483; 236 NW2d 494 (1975). Assuming the instruction was error on the key point, whether there was evidence of defendant’s malice with regard to the homicide of the deceased, there was overwhelming evidence that defendant Dumas acted with wanton and wilful disregard of the principal’s intent to kill or cause great bodily harm or himself acted with wanton and wilful disregard of the substantial likelihood that his behavior could cause death or great bodily harm. I would affirm the conviction, MCL 769.26; MSA 28.1096.
I agree with the lead opinion to the extent that it reads Aaron to stand for the principle that the jury may find malice from the intent to commit an underlying felony where that intent evidences a malicious state of mind regarding a killing that occurs in the course of a felony, ante, p 398, n 8.
*414In Aaron, this Court abolished the common-law felony-murder rule that the mens rea necessary for murder was satisfied by proof of an enumerated or other abstractly dangerous felony and a resulting death. Aaron, supra at 715-716, n 103.3 Aaron held that the people must prove the mens rea of second-degree murder, that is, malice,4 plus the felony, for statutory first-degree murder, MCL 750.316; MSA 28.548. The teaching of Aaron is that malice, with regard to a homicide, may not be imputed from the underlying felony. Aaron does not hold that the intent to commit the underlying felony does not have probative significance regarding whether defendant had a “man-endangering state of mind” with regard to the death.
Thus, a jury may not be instructed that it may find first-degree felony murder from the intent to commit the enumerated felony alone and a resulting death, because an intent to commit the felony is not the equivalent of the malicious state of mind necessary for second-degree murder. After Aaron, the mens rea necessary for the felony is in every instance different than the mens rea required for murder, and no longer *415will the law allow the latter to be conclusively proven from the former. Stated otherwise, the intent to commit the felony is necessary, but not sufficient, to show malice regarding the killing.
It does not follow, however, that if the underlying felony requires an intent that exhibits a man-endangering state of mind, that intent might not be evidence of malice in regard to a resulting killing. Thus, while I agree with the lead opinion that Aaron requires that the people prove that each co-felon has malice because “[i]t is fundamentally unfair and in violation of basic principles of individual criminal culpability to hold one felon liable for the unforeseen and unagreed-to results of another felon,” Aaron, supra at 731, the jury was not instructed that it could find malice from this intent alone. Further, the court did not err in advising the jury regarding the people’s theory that
in any event Defendant Dumas by his intentional participation in an armed robbery acted in a wilful and wanton manner that had the natural tendency to cause Mr. Thomas’ death.
There was no dispute that defendant knew the principal was armed, nor was there any factual dispute that defendant had participated in three prior armed robberies with codefendant. As observed in Aaron,
In cases where the felons are acting intentionally or recklessly in pursuit of a common plan, the felony-murder rule is unnecessary because liability may be established on agency principles. [Id. at 731.]
*416Professors Perkins and Boyce describe the malice necessary for second-degree murder as a
[man-endangering state] of mind which includes (1) an intent to kill, or (2) an intent to inflict great bodily injury, or (3) an intent to do an act in wanton and wilful disregard of an unreasonable human risk, (i.e. the. wilful doing of a wanton act under such circumstances that there is obviously a plain and strong likelihood that death or great bodily injury may result), or (4) an intent to perpetrate a dangerous felony. [Criminal Law (3d ed), p 73.]
With the abrogation of the commission of the enumerated felonies as a proxy for malice with regard to a killing, the enumerated felonies now stand on the same ground as other second-degree murders, as to which no special qualifications regarding the finding of malice need be given.
Aid or encouragement to another who is actually perpetrating a felony makes the aider guilty of the crime if he knows, or has reason to know of the criminal intention of the other, Perkins at 743, or if he himself acted despite the absence of a showing of knowledge of the other’s intent, with the state of mind necessary for conviction. An aider and abettor may be found guilty on proof of the intent necessary to be convicted as a principal, and if the aider and abettor participates in a crime with knowledge of the principal’s intent to kill or cause great bodily harm, he is acting with at least “wanton and wilful disregard” sufficient to support a finding of malice. People v Kelly, 423 Mich 261, 278; 378 NW2d 365 (1985).
The instructions on the people’s theory correctly encompassed these two versions of accessory liability in a common-law murder. The juiy was advised that *417the codefendant accessory may be found hable if he aided and abetted the principal and there is evidence that he shared the principal’s intent to kill or inflict great bodily harm, or if he aided and abetted the principal and there is evidence that he himself acted with wanton or wilful disregard of the natural tendency of his behavior.
Footnote 17 of the lead opinion’s analysis seems to be grounded on the Court’s explanation in Aaron of the rationale for abolishing the rule. The Court stated that those enumerated felonies that “may be seen as inherently dangerous to human life when viewed in the abstract may not be so dangerous when viewed in light of the circumstances of a particular case.” Id. at 727. The lead opinion concludes from this statement that a defendant’s intent to commit the armed robbery does not, by itself, denote malice with regard to a killing. If this statement means that the intent to commit the felony is not as a matter of law the equivalent of the malice necessary for murder, I agree. However, I read this statement as a rejection of the view of some courts that apply the felony-murder rule by classifying the felony in the abstract to determine whether it is inherently dangerous,5 and as the further declaration that in Michigan malice is a question of fact in all circumstances. This conclusion is fortified by juxtaposing the former statement with the Court’s later observations that
[a] defendant who only intends to commit the felony does not intend to commit the harm that results and may or may not be guilty of perpetrating an act done in wanton or will*418ful disregard of the plain and strong likelihood that such harm will result [id. at 728,]
and that
[a] jury can properly infer malice from evidence that a defendant intentionally set in motion a force likely to cause death or great bodily harm. [Id. at 729 (emphasis deleted).]
In my view, the proper interpretation of the sentence is that intent to commit a felony is not the legal equivalent of malice with regard to the killing, that malice with regard to the killing is an essential element of all murder, which is a question of fact with respect to each defendant for the trier of fact, “and, as all questions of fact, may be established by direct evidence, circumstantial evidence, or both.” Aaron, supra at 745-746 (Ryan, J., concurring in part and dissenting in part).
Thus, because death may be accidental or wholly unanticipated, a jury may not be told, no less with the enumerated felonies than with any other murder, People v Maher, 10 Mich 212, 218; 81 AD 781 (1862), that it must convict if it finds the mens rea of the felony.6 However, malice may be inferred from all the facts and circumstances, including the intent to commit the underlying felony.
It is no more error to advise the jury that a defendant’s knowing participation in an armed robbery may *419be evidence of malice, than would it be to charge a jury that the defendant’s knowing participation in a felonious assault, or knowing participation in an assault with intent to do great bodily harm, or knowing participation in a plan to kill A where B was killed, is error. The factual finding of the actus reus of the felony has probative force for the ultimate issue the jury must determine: whether the defendant acted with malice with regard to the killing.
I therefore disagree both with the lead opinion’s conclusion that the jury was told it could find malice from the intent to commit the felony alone and that the jury must always be told that it is to do something (that is, consider the facts and circumstances) that it has no reason to think it could not do.7
Since intent to kill, intent to do serious bodily injury or depraved heart murder must be proven in every murder prosecution, an intent to commit the underlying felony that has an evidentiary bearing on the existence of the ultimate issue of malice is a proper consideration for the factfinder.8 To be sure, in a given case, such as where a codefendant claims no prior knowledge of facts that indicate the principal’s malice with respect to the killing, and there is a contested issue regarding whether the defendant himself acted with wanton and wilful disregard of the consequences, it may be both appropriate and necessary to *420charge that the defendant may not be found guilty merely because he participated in the felony. Where, as here, it was undisputed that defendant intended to commit a robbery and knew the principal was armed, and the jury is correctly advised that it must find beyond a reasonable doubt that the defendant had malice with regard to the killing, there is no error.
Aaron does not direct that the jury consider only circumstantial evidence of mens rea, i.e., all the facts and circumstances (intent to do great bodily harm or reckless disregard of the plain and strong likelihood of such a result). Indeed, the lead opinion agrees that direct evidence, in the form of defendant’s intent, of a man-endangering state of mind may be considered. Aaron does not require “more” in the jury instruction the court today mandates. The “more” that Aaron requires is a jury instruction that treats the malice element of a murder occurring in the course of an enumerated felony like any other second-degree murder and a special instruction where the proofs so require. The jury was correctly advised five separate times in the instant case regarding the malice element and was not told it could find malice from the intent to commit the underlying felony. I would affirm the conviction.9
Weaver, J., concurred with Boyle, J. Kelly, J., took no part in the decision of this case.Ante, p 405.
Defense counsel specifically argued that it was not foreseeable that someone would be harmed because “on all three of those (prior) occasions, Mr. Smith, although armed, and Mr. Dumas, who accompanied him according to that testimony, they did not hurt anyone.”
The lead opinion describes this rule as equating malice with the intent to commit the underlying felony. I agree, if what is meant is that malice was presumed and that defendant was responsible for an unintended or unexpected death if the felony was intended and death resulted.
As Justice Levin observed in People v Morrin, 31 Mich App 301, 323; 187 NW2d 434 (1971), malice is a jury question and in explaining the concept:
A judge could, for example, charge that the defendant is guilty of the crime of murder if the jurors find, beyond a reasonable doubt, that he lolled the victim and that he actually intended to kill the victim or (where relevant), although he did not actually intend to kill, he actually intended to inflict great bodily harm or engaged in behavior the natural tendency of which is to cause death or great bodily harm.
State v Thompson, 280 NC 202; 185 SE2d 666 (1972), Perkins & Boyce, Criminal Law (3d ed), p 66.
Where the facts so warrant, the jury should be advised that merely because a defendant intended to commit a felony, does not require a conclusion that the defendant acted with malice in respect to the killing. The archetypal example is the getaway driver in a robbery where there is no evidence the driver knew the peiqjetrators were armed.
It is at this point that the strained construction of the instruction given becomes most obvious. The entire thrust of the jury instructions was that in resolving any question, the jury must examine all the facts and circumstances in evidence.
Parenthetically, where the only evidence of malice is the commission of a felony that does not evidence a man-endangering state of mind, the prosecution has not made out a case of minder to submit to the. jury. People v Pavlic, 227 Mich 562; 199 NW 373 (1924).
While I do not agree the instruction was error, People v Kelly, supra, I agree with the lead opinion that it should not be given without clarification. Because the instruction is unnecessary, it invites claims of error on appeal.