(dissenting). I would decline to overrule People v Vail, 393 Mich 460; 227 NW2d 535 (1975); therefore, I respectfully dissent.
I agree with the Court of Appeals:
Viewing the evidence in a light most favorable to the prosecution, we find insufficient evidence to establish the elements of premeditation and deliberation. There were no witnesses to the shooting and the weapon was never found. The only direct evidence linking defendant to the shooting was defendant’s confession that, because of fear inspired when the man who had just robbed him at gunpoint turned to again approach defendant’s vehicle, defendant crouched down and fired his gun through his car window. There was no evidence of a prior relationship between defendant and *489the victim, or that the victim or anyone else was defendant’s intended target. Under these circumstances, a reasonable factfinder could not find premeditation or conclude that defendant had time to take a “second look” before firing his weapon. Accordingly, the trial court erred in denying defendant’s motion for a directed verdict with regard to the charge of first-degree murder. [224 Mich App 676; 569 NW2d 911 (1997).]
The next question that must be resolved is whether the error of the trial court was harmless. The majority in this case holds that the error was harmless, and it overturns established precedent that has proved to be workable under People v Vail. In Vail, the defendant was charged with first-degree murder for his participation in a shooting that resulted in the death of the victim. The defendant was found guilty of voluntary manslaughter by a jury, and the Court of Appeals affirmed. The defendant appealed in this Court, contending that there was insufficient evidence for the jury to find him guilty of first-degree murder and that it was error to deny his motion to dismiss the count. This Court held that the trial judge erred in refusing to grant the defendant’s motion for a dismissal of the first-degree murder count where the proofs were insufficient to establish the elements of premeditation and deliberation.
This Court stated:
[W]here a jury is permitted consideration of a charge unwarranted by the proofs there is always prejudice because a defendant’s chances of acquittal on any valid charge is substantially decreased by the possibility of a compromise verdict. For this reason it is reversible error for a trial judge to refuse a directed verdict of acquittal on any charge where the prosecution has failed to present evi*490dence from which the jury could find all elements of the crime charged. [Id. at 464.]
The precise holding of Vail has been part of this state’s jurisprudence dating as far back as 1926. See People v Hansen, 368 Mich 344; 118 NW2d 422 (1962); People v Marshall, 366 Mich 498; 115 NW2d 309 (1962); People v Stahl, 234 Mich 569; 208 NW 685 (1926). For the reasons that follow, I agree with our prior holdings that where there is no evidence of first-degree murder, it is improper for the trial court to submit the charge to the jury.
In Stahl, supra at 572, we stated:
When twelve jurors agree on amount or degree generally there must be composition of views. Here the jurors to determine degree were required improperly to compose their views between the major charge of murder in its degrees, and manslaughter. Defendant testified; if truly, he was innocent. The case was serious, sad. If the murder feature had been omitted from the instructions, and the case submitted on the theory of manslaughter, it cannot now be said with certainty that the jury would have reached the same result.
Further, in People v Gessinger, 238 Mich 625, 628; 214 NW 184 (1927), this Court stated:
[I]t is evident to most practitioners of experience that it would be much easier to secure an acquittal if the defendant were only charged with the lesser offense than it would be were he charged with all three offenses. The tendency of jurors is to compromise their differences. Where there is only one charge they are obliged to meet the question squarely by yes or no, or disagree, but where the charges are three, the juror who thinks there should be no conviction, and the juror who thinks that a conviction should be had of the greater offense are quite hable to agree upon a conviction of the lesser offense.
*491However, the majority argues that Vail should be overruled because it represents the minority view among other states that have considered the issue. Whether the minority or majority view, I would continue to adhere to the principles laid out in Vail because I believe that justice requires us to do so.
Recently, in People v Gearns, 457 Mich 170; 577 NW2d 422 (1998), a majority of justices held that the test for harmlessness should be the “highly probable” standard. Under that standard, “ ‘[u]nless the appellate court believes it highly probable that the error did not affect the judgment, it should reverse.’ ” People v Mateo, 453 Mich 203, 219; 551 NW2d 891 (1996), quoting Traynor, The Riddle of Harmless Error (Ohio State Univ Press, 1970), pp 34-35.1 In this case, I cannot say that there was a “high probability” that the submission of the first-degree murder charge did not affect the jury’s verdict.
A rule requiring reversal where a first-degree murder charge is erroneously submitted to the jury under *492Vail is consistent with the highly probable standard for nonconstitutional error under Geams. Because I cannot say that there is a high probability that the erroneous submission of the charge to the jury did not affect its verdict, I would uphold Vail. While the majority’s history of the development of harmless error law in Michigan is interesting, it does not change the fact that this Court should adhere to the rule articulated in Geams. Because the Geams highly probable test is consistent with the rule requiring reversal in Vail, and is consistent with Michigan precedent dating as far back as 1926, I would respectfully decline to overrule Vail.
In Price v Georgia, 398 US 323; 90 S Ct 1757; 26 L Ed 2d 300 (1970), a man was charged with murder and found guilty of the lesser included offense of voluntary manslaughter. The prosecution sought and obtained reversal of the defendant’s initial conviction. The defendant was retried on both the murder charge and the voluntary manslaughter charge. The second trial also resulted in a conviction of voluntary manslaughter. The defendant appealed on double jeopardy grounds. The United States Supreme Court held that it was error to retry the defendant on the murder count because he already had been acquitted of that charge in the first trial.
In addressing the harmlessness of the second trial, the prosecution argued that, because the defendant was convicted of the same crime at both the first and the second trials, therefore, he suffered no harm. However, the Supreme Court rejected this contention, stating:
[W]e cannot determine whether or not the murder charge against petitioner induced the jury to find him guilty of the *493less serious offense of voluntary manslaughter rather than to continue to debate his innocence. See United States ex rel Hetenyi v Wilkins, 348 F2d 844 (CA 2, 1965), cert denied Mancusi v Hetenyi, 383 US 913 (1966). [Price, supra at 331-332.]
The Court held that the error was not harmless.
I recognize that this case dealt with double jeopardy, while Graves does not. However, I cite it merely to show that the United States Supreme Court rejected the prosecution’s harmless error argument because it could not determine whether the jury compromised its verdict. I agree. Because I cannot state that there is a “high probability” that the submission of the first-degree murder charge did not affect the jury’s verdict, I would find that the error requires reversal.
Mallett, C.J., and Kelly, J., concurred with Cavanagh, J.In People v Harris, 458 Mich 310; 583 NW2d 680 (1998), the dissent, authored by Justice Taylor, recognized that a majority of justices adopted the “highly probable” standard and rejected the proposed standard under MCL 769.26; MSA 28.1096 in People v Gearns. Harris at 323, n 1. However, despite recognizing that the standard for nonconstitutional harmless error is not the “miscarriage of justice” standard advocated by the dissent in Geams, the majority in this case finds fault with Vail because Vail “does not discuss or even acknowledge MCL 769.26; MSA 28.1096 . . . .” Ante at 484. With all due respect, the “miscarriage of justice” position only garnered the votes of two justices. I find it to be unfaithful to the jurisprudence of this Court for the majority in this case to rely on a position specifically rejected in Geams. At best, the majority, if it chooses to now overrule Geams the same year it was issued, in addition to overturning Vail, should at least acknowledge that it is doing so in the opinion, rather than creating the inconsistent impression that the Court adopts at once the “highly probable” standard while at the same time also adopting the “miscarriage of justice” standard rejected by a majority of justices in Geams.