People v. Kelly

Levin, J.

(concurring in part and dissenting in part). I concur on the aiding and abetting issue because there was no objection to the instruction, and dissent on the felony-murder issue.

*285The error in instructing the jury that it might infer from Kelly’s participation in the robbery that he "knowingly created a very high risk of death with knowledge that it probably would cause death” — and thus the requisite intent to convict him of murder (and, hence, because there was a robbery, felony murder) — was not, as stated in the opinion of the Court, remedied by the general instructions on the law of homicide.

I note at the outset, because of statements in the opinion of the Court, that the issues presented concern jury instructions, not the sufficiency of the evidence. There was, indeed, ample evidence from which a properly instructed jury could find that Kelly committed the offense of first-degree murder.

I

Kelly was convicted of first-degree murder. The prosecution proceeded on the alternative theories that Kelly was the principal assailant, primarily responsible for the death of the victim, and that, if his accomplice in the robbery, Lawrence Moses, was the principal assailant, Kelly aided and abetted Moses in the commission of the statutory offense of felony murder.

On the aiding and abetting issue, the judge instructed the jury:

"Fourth, that this crime which occurred, that is the felony murder, was fairly within the criminal plan and the defendant might have expected this to happen in the course of committing the robbery.”[1]

*286A

Kelly’s lawyer did not object to this instruction. The instruction appears to be based on a misreading of language in an early Michigan case.2 The deficiencies in the instruction are not, however, of such moment as to warrant a new trial absent objection.3

*287B

After stating that because there was no objection, this Court need only review the instruction to determine whether there was "manifest injustice,”4 the opinion of the Court, in obiter dictum, proceeds to discuss the law of aiding and abetting.5

The Court acknowledges that the instruction is "arguably erroneous.”6 It states that the intent to be convicted as an aider and abettor of murder is the intent of a principal, one of the three intents stated in People v Aaron, 409 Mich 672, 728; 299 NW2d 304 (1980), as requisite to a conviction of murder: "intent to kill,” "intent to cause great bodily harm,” intent "wanton[ly] and willful[ly to] disregard [] the likelihood that the natural tendency of defendant’s behavior is to cause death or great bodily harm.”7

The opinion, picking up on the third "wanton and willful disregard” clause, continues that if a person charged as an aider and abettor "participates in a crime with knowledge of his principal’s intent to kill or to cause great bodily harm, he is acting with 'wanton and willful disregard’ sufficient to support a finding of malice under Aaron.”8

I would agree that evidence that one has participated in committing an offense other than murder with knowledge that an accomplice intended in *288the perpetration of the offense to kill or cause great bodily harm will generally be sufficient to support a finding of aiding and abetting murder should the accomplice commit that offense. The Court’s statement can be read, however, as establishing a rule of law leaving no room for the trier of fact to decide whether the person charged as an aider and abettor knowingly and intentionally did so, and is not adequate for the purpose of instructing a jury.

The Court says that its statement is in accord with "numerous decisions reached by the Court of Appeals over a considerable period of time.”9 The only case cited in which the defendant was charged with aiding and abetting a murderous assault is People v Poplar, 20 Mich App 132, 136; 172 NW2d 732 (1969). There the Court of Appeals said that "[wjhere a crime requires the existence of a specific intent, an alleged aider and abettor cannot be held as a principal unless he himself possessed the required intent or unless he aided and abetted in the perpetration of the crime knowing that the actual perpetrator had the required intent.” The Poplar formulation is circular — one is an aider and abettor if he aided and abetted — and therefore is somewhat confusing, albeit perhaps literally not erroneous.

C

The opinion of the Court reviews the evidence and finds:

Even assuming the defendant did not enter the house with the intent to murder, it is clear that he either formulated such an intent once inside the house, or at the very least became aware of his codefendant’s specific intent at some point during *289these gruesome proceedings. [Emphasis in original.]

Manifestly, it would not be enough that the person accused as an aider and abettor of murder became aware of the principal’s intent to murder unless thereafter the accused aided and abetted the principal in committing the murder.

D

The ultimate question is whether the accused acted with intent to aid and abet the commission of the offense. Knowledge or participation is evidence that supports an inference of an intent to aid and abet, but neither knowledge nor participation, nor both, are sufficient. The statements in the majority opinion blur the difference between what constitutes sufficient evidence and how a lay jury should be instructed.

The role of evidence of knowledge and participation, in the context of jury instructions, was recently considered by the Supreme Court of California. People v Beeman, 35 Cal 3d 547, 555; 199 Cal Rptr 60; 674 P2d 1318 (1984). Beeman rejected, People v Ellhamer, 199 Cal App 2d 777; 18 Cal Rptr 905 (1962), the proposition stated in Ellhamer and quoted in Poplar that "the criminal intent of the aider and abettor is presumed from his actions with knowledge of the actor’s wrongful purpose,” and a jury instruction that "[a] person aids and abets the commission of a crime if, with knowledge of the unlawful purpose of the perpetrator of the crime, he aids, promotes, encourages or instigates by act or advice the commission of such crime.” The California court said, "Intent is what must be proved; from a person’s action with knowledge of the purpose of the perpetrator of a crime, his *290intent to aid the perpetrator can be inferred.”10 (Emphasis in original.) The court continued that an appropriate instruction would inform the jury that a person aids and abets when acting with "(1) knowledge of the unlawful purpose of the perpetrator, and (2) the intent or purpose of committing, encouraging or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” (Emphasis added.) Knowledge of the criminal purpose of the principal is an element necessary to support a finding of an intent to aid and abet, but is not alone sufficient.

E

The opinion of the Court states that the concerns expressed in Aaron of holding a co-felon criminally responsible for "an unforeseen and unagreed-to murder” are "not implicated by an aiding and abetting standard which requires a finding that the co-felon [aider and abettor] acted with malice.”11 I would agree if it were clearly stated that the jury must find that the person accused as an aider and abettor had the requisite intent to kill, to cause great bodily harm, or to wantonly and wilfully disregard that the natural tendency of his behavior was to cause death or great bodily harm.

The unobjected-to instruction does not require a finding by the jury that Kelly either himself intended to commit murder or that he knew of his coparticipant’s intent to do so. A juror might have been misled by the language — "fairly within the criminal plan” and "might have expected this to happen,” — to believe that an objective standard of *291foreseeability applies.12 The term "criminal plan” does not distinguish whose plan — Kelly’s or his coparticipant, Moses’ — the jury must consider.

There is a world of difference between an inquiry whether Kelly intended murder and an inquiry whether a reasonable person "might have expected [murder] to happen.”

F

Implicit in the instruction is the notion that an agreement to commit robbery is necessarily an undertaking involving a significant risk that death or grievous bodily harm will result. A juror who watches the local news might readily agree that a killing is "fairly within” a criminal plan to commit a robbery. The United States Supreme Court, however, relying in Enmund v Florida, 458 US 782, 799-800; 102 S Ct 3368; 73 L Ed 2d 1140 (1982), on statistics in the commentary accompanying the Model Penal Code showing that this assumption is wrong, held that the imposition of the death penalty on a person who aids and abets a felony in the course of which murder is committed by another, but who does not himself kill, attempt to kill, or intend to kill, is violative of the Eighth Amendment. The Court said:

It would be very different if the likelihood of a killing in the course of a'robbery were so substantial that one should share the blame for the killing if he somehow participated in the felony. But *292competent observers have concluded that there is no basis in experience for the notion that death so frequently occurs in the course of a felony for which killing is not an essential ingredient that the death penalty should be considered as a justiñable deterrent to the felony itself. . . . This conclusion was based on three comparisons of robbery statistics, each of which showed that only about one-half of one percent of robberies resulted in homicide.23 The most recent national crime statistics strongly support this conclusion.24 [Emphasis supplied.]

As written, the instructions reinforce the assumption, rejected in Aaron, of an experiential link between the commission of or intent to commit the offense of robbery and a resulting although not necessarily intended killing.

II

Turning to the felony-murder issue, the judge *293instructed the jury, over defense counsel’s objection, that it might infer from participation in a robbery the requisite intent to convict Kelly of murder under the third clause of the Aaron formulation.

If you find that the defendant consciously intended to commit, attempted to commit or assisted another in the crime of robbery, you may infer that he knowingly created a very high risk of death with knowledge that it probably would cause death.[13]

A

The opinion of the Court says that "[w]hile this sentence in isolation may be inaccurate,” read as a whole the murder instructions accurately stated the law14

The "read as a whole” approach might be appropriate where the judge gives an incomplete instruction or fails to give an accurate instruction requested on an aspect of the matter otherwise adequately covered,15 but a different rule applies *294where the jury is given conflicting instructions:16 "[WJhere conflicting instructions are given, one erroneous and the other without error, it may be presumed that the jury followed that instruction which was erroneous.”17 The rationale of this presumption becomes clearer through illustration: If you tell a child that two plus two equals five and then tell the child that two plus two equals four, without explaining that the first equation was wrong, the child does not know which is correct. When it comes to the law of homicide, a lay jury is like a child. Both the concepts of the law of homicide and the arcane jargon the law has, over the centuries, developed to explain them are so complex that even one experienced in the subject will generally need carefully to parse the language of the law each time he adverts to the subject.

A juror seeking to decipher the meaning of instructions on the murky conception, "malice aforethought,” might well seize upon an instruction which allows him to find that elusive concept18 on evidence that the accused had an intent to assist another in committing a robbery._

*295Kelly admitted his involvement , as an aider and abettor in the robbery. The instruction relieved the jury of the task of deciding whether Kelly or his accomplice Moses was the assailant who fatally stabbed the victim — a determination generally of critical importance under Aaron.19

B

The Court’s read-as-a-whole analysis makes it unnecessary for it to decide whether the instruction, which read "in isolation may be inaccurate,”20 was or was not accurate. In my view, it is necessary to so decide because, if the instruction is inaccurate, the rule for conflicting instructions becomes applicable and, absent harmless error,21 a new trial should be granted.

In explaining why the instruction, read as a whole, is accurate, the Court misstates Aaron. The Court says that "[r]ead in their entirety, the jury instructions at issue clearly do not require the jury to find the malice necessary for murder from the mere intention to commit the underlying felony. The felony is a factor the jury may use to find malice.”22 (Emphasis added.)

In Aaron, however, this Court ruled that a jury may not find the requisite intent for murdér from the intent to commit the underlying felony alone.23 Aaron did not say the 'felony is a factor” from which the jury may infer the requisite intent; Aaron said rather that the "facts and circum*296stances involved in the perpetration of a felony may evidence” the requisite intent.24

There is nothing in the instructions in the instant case that suggests that the jury must consider "facts and circumstances” other than the intent to commit the robbery. Kelly admitted his involvement in the robbery, but denied any involvement in the killing.25 The jury, following the erroneous instruction, could have convicted him of felony murder simply because he admittedly participated in the robbery.

The Court also misreads Aaron if it is suggesting that Aaron is limited to those situations where the instruction makes the finding of the requisite intent mandatory from the intent to commit the felony. The majority distinguishes Aaron and the two companion cases decided with Aaron, in which the instructions were found to be incorrect, on the ground that there "the inference of malice was made an automatic result once the intent to commit the underlying felony was found.” (Emphasis in original.) "By contrast,” the majority says that *297the instructions in the instant case raised "at most a possible inference.”26

Aaron was not directed only against the mandatory inference of the common-law felony-murder rule, but also against a permissible inference. It was directed against convicting an accused of murder solely on evidence of participation in another felony:

We believe that it is no longer acceptable to equate the intent to commit a felony with the intent to kill, intent to do great bodily harm, or wanton and willful disregard of the likelihood that the natural tendency of a person’s behavior is to cause death or great bodily harm.[27]

In Aaron, this Court, in so many words, said that a jury "may not find malice from the intent to commit the underlying felony alone”:

Abrogation of this rule does not make irrelevant the fact that a death occurred in the course of a felony. 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. Thus, whenever a killing occurs in the perpetration or attempted perpetration of an inherently dangerous felony, in order to establish malice the jury may consider the "nature of the underlying felony and the circumstances surrounding its commission.” If the jury concludes that malice existed, they can find murder and, if they determine that the murder occurred in the perpetration or attempted perpetration of one of the enumerated felonies, by statute the murder would become first-degree murder. [Citations omitted.]
The difference is that the jury may not ñnd *298malice from the intent to commit the underlying felony alone. [Emphasis supplied.][28]

This Court additionally said in Aaron:

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 willful disregard of the plain and strong likelihood that such harm will result. Although the circumstances surrounding the commission of the felony may evidence a greater intent beyond the intent to commit the felony, or a wanton and willful act in disregard of the possible consequence of death or serious injury, the intent to commit the felony, of itself, does not connote a ”man-endangering-state-of-mind.” Hence, we do not believe that it constitutes a sufficient mens rea to establish the crime of murder[29]

One would think that after Aaron an accused would be entitled to an instruction that the jury may not infer, solely from the commission or attempted commission of a robbery, either intent to kill, intent to do great bodily harm, or wanton and wilful disregard of the likelihood that the natural tendency of the accused’s behavior is to cause death or great bodily harm.

C

The felony-murder instruction given in the instant case violates the dictates of Aaron in three respects. First, as just discussed, a finding that the accused committed or joined in the commission of a felony is not alone sufficient under Aaron to support an inference or conclusion that he acted with the requisite intent for murder.

*299Second, the instructions, by permitting the jury to find Kelly guilty of murder on a finding that he participated in a robbery, relieved it of finding the individual culpability that is, under Aaron, prerequisite to criminal responsibility for murder:

"If one had to choose the most basic principle of the criminal law in general ... it would be that criminal liability for causing a particular result is not justified in the absence of some culpable mental state in respect to that result. . . .”
The most fundamental characteristic of the felony-murder rule violates this basic principle in that it punishes all homicides, committed in the perpetration or attempted perpetration of proscribed felonies whether intentional, unintentional or accidental, without the necessity of proving the relation between the homicide and the perpetrator’s state of mind. This is most evident when a killing is done by one of a group of co-felons. The felony-murder rule completely ignores the concept of determination of guilt on the basis of individual misconduct. The felony-murder rule thus "erodes the relation between criminal liability and moral culpability.” [Id., 708. Citation omitted.]

Third, the jury was relieved of deciding whether Kelly acted with intent to kill, intent to cause great bodily harm, or with wanton and wilful disregard.

All would probably agree that it is not reasonable to infer either intent to kill or intent to do great bodily harm solely from evidence that the accused participated in an armed robbery. To hold otherwise would mean that there would be sufficient evidence to convict of assault with intent to murder and of assault with intent to do great bodily harm less than murder on evidence alone that the accused pointed a gun and announced a holdup.

*300The crux of the matter is whether the third clause — abbreviated in the objected-to instructions as "knowingly creat[ing] a very high risk of death with knowledge that it probably would cause death” — includes or comprehends conduct consisting of no more than participation in an armed robbery.

The third clause appears to have taken on a settled meaning, involving not just the threat of force, but the actual use of force. In all the cases cited by Professors LaFave and Scott in their discussion of the third clause, where the defendant’s conduct was found sufficient to justify a finding of "reckless disregard for human life,” the defendant had used — he had not merely threatened to use — force; he either intentionally propelled an object resulting in death — most often a bullet or a car — or, in one case, shook the victim (an infant) to death:30

*301The following types of conduct have been held, under the circumstances, to involve the very high degree of unjustifiable homicidal danger which will do for depraved-heart murder; firing a bullet into a room occupied, as the defendant knows, by several people; shooting into the caboose of a passing train or into a moving automobile, necessarily occupied by human beings; throwing a beer glass at one who is carrying a lighted oil lamp; playing a game of "Russian roulette” with another person; shooting at a point near, but not aiming directly at, another person; driving a car at very high speeds along a main street; shaking an infant so long and so vigorously that it cannot breathe. [LaFave & Scott, Criminal Law, § 70, p 543.]

Aaron, consistently, states:

Abrogation of [common-law felony murder] does not make irrelevant the fact that a death occurred in the course of a felony. 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.[31] [Emphasis supplied.]

One may create a high or very high risk of death by firing a gun at an area where there may be one or more persons. Threatening a person with a loaded gun does not, however, alone justify an inference that the actor knowingly created such a *302risk of death with knowledge that it would probably cause death.32

It does not denigrate the seriousness of robbery to recognize that while armed robbers do all too frequently fire their weapons, a killing rarely is the consequence of robbery. The data relied on by the United States Supreme Court in Enmund, discussed in Part 1(F), shows that it is less than "probable” that a killing will result from a robbery.33

A jury cannot properly be instructed that it may, from evidence alone that the accused participated in a robbery, infer he had knowledge that his conduct would "probably” cause death or that he wantonly and wilfully disregarded the "likelihood” that the "natural” tendency of his behavior was to cause death or great bodily harm.

Ill

In sum, the instruction was erroneous, and Kelly’s lawyer duly objected. The judge’s "correct understanding”34 of Aaron is of interest, but is not curative under the circumstance that he did not communicate a "correct understanding” to the jury. The jury was left to surmise whether the general instructions on the law of homicide or the objected-to incorrect instruction accurately stated the law. We have no basis whatsoever for concluding that the jury may not have been misled by the *303incorrect instruction. Absent a claim35 and finding of harmless error, a new trial should be ordered.

This instruction was preceded by the following:

"Now, it is the theory of the prosecution in this case that the defendant either directly committed the crime charged, that being felony murder, or that he intentionally aided or assisted another in the commission of that crime.

*286"All persons who aid or assist in the commission of a crime are as liable as if they had directly committed the crime and may be convicted of the principal offense or as aiders and abettors. Before you may convict you must be convinced beyond a reasonable doubt:

" 'First, that the defendant intended to commit the crime of robbery, either robbery unarmed or robbery armed at the time of giving the aid or encouragement.

" 'Second, that the defendant performed acts or gave encouragement which aided or assisted the commission of the crime of robbery either before or at the time of the commission of the crime.

" 'Third, that the crime of felony murder occurred as a result of this robbery.’ ”

In People v Knapp, 26 Mich 112, 115 (1872), this Court said:

"There can be no criminal responsibility for anything not fairly within the common enterprise, and which might be expected to happen if occasion should arise for any one to do it.” (Emphasis supplied.)

It does not follow that there is criminal responsibility for anything "fairly within the criminal plan” that the accused "might have expected” to happen. See People v Foley, 59 Mich 553; 26 NW 699 (1886).

The instruction given followed the format of CJI 8:1:04, Aiding and Abetting in Separate Crime Within the Scope of the Enterprise. The accompanying use note prepared by the Michigan State Bar Special Committee on Standard Criminal Jury Instructions reads:

"This instruction is intended for use where some felony other than that contemplated in the original felonious enterprise occurs. It is not recommended for use when the new felony requires a specific intent. See People v Aaron, 409 Mich 672, 708-713; 299 NW2d 304 (1980). For felony-murder, see the felony-murder instructions, Chapter 16.” See n 13. (Emphasis supplied.)

The opinion of the Court sets forth the applicable standard of review for unobjected-to errors as whether "manifest injustice has occurred.” The opinion does not attempt to define "manifest injustice”; nor can a standard be derived from the examples set out in n 3.

In People v Woods, 416 Mich 581, 610; 331 NW2d 707 (1982), relied on in the opinion of the Court, this Court gave some content to the term when it said that "[fiinding no evidence of actual prejudice,” it could not agree with the appellant that the instruction "created manifest injustice.”

What is meant by "manifest injustice” has never been adequately *287explained so as to provide a clear understanding to the bench and bar of what is intended. Until the Court is prepared to explain what it means when it uses the words "manifest injustice” in this context, it should avoid using an expression whose content is undefined.

Id.

Ante, pp 278-280.

Ante, p 277.

The Court does not, possibly because it was not necessary for decision, evaluate whether the aiding and abetting instruction required one of these levels of intent.

Ante, pp 278-279.

Ante, p 279.

People v Beeman, 35 Cal 3d 547, 555-558; 199 Cal Rptr 60; 674 P2d 1318 (1984).

Ante, pp 279-280.

Glanville Williams rejects imposing criminal liability on the basis of an objective standard. In his discussion of the responsibility of secondary parties for probable consequences he states:

"[A] negligent failure to foresee the course of events [does not make] a secondary party responsible for a crime of different legal character from that contemplated. Such an extension of responsibility would be inconsistent with the rule requiring secondary parties to have full mens rea.”

Williams, Criminal Law General Part (2d ed), p 402.

The statistics relied upon by the American Law Institute may be summarized as follows:

Robberies Date & No. of Accompanied Location Robberies by Homicide %

Cook County, 111 14,392 (est.) 71 .49 1926-1927

Philadelphia, Pa 6,432 38 .59 1948-1952

New Jersey 16,273 66 .41 1975

Model Penad Code § 210.2, Comment, p 38, n 96.

An estimated total of 548,809 robberies occurred in the United States in 1980. U. S. Dept, of Justice, Federal Bureau of Investigation, Uniform Crime Reports 17 (1981). Approximately 2,361 persons were murdered in the United States in 1980 in connection with robberies, id., at 13, and thus only about 0.43% of robberies in the United States in 1980 resulted in homicide. See also Cook, The Effect of Gun Availability on Robbery and Robbery Murder, in 3 R. Haveman & B. Zellner, Policy Studies Review Annual 743, 747 (1980) (0.48% of all robberies result in murder).

The language was taken from CJI 16:2:03, which subsequently was revised to read before deletion on September 16, 1985:

"(1) In determining whether [the/a] defendant acted wilfully and wantonly, you may consider whether the defendant intentionally set in motion a force likely to cause death or great bodily harm.

"(2) If you find that the defendant committed the charged crime of [state felony], you may also consider the nature of that crime, the way it was committed, and the circumstances surrounding its commission.” (Bracketed material and emphasis in the original.)

The Court cites People v Dye, 356 Mich 271, 279; 96 NW2d 788 (1959). The report in that case does not state the nature of the claimed instructional error.

The majority cites People v Dupie, 395 Mich 483, 488; 236 NW2d 494 (1975), where the trial court had instructed the jury that to convict the defendant of unarmed robbery it "must appear that the defendant feloniously . . . stole . . . .” The defendant contended the the word "feloniously” did not adequately instruct the jury on specific intent. The instruction in Dupie, unlike the instruction in the instant case, was not erroneous.

*294The rule that the whole charge must be construed together to determine if it was correct was applied in People v Williams, 208 Mich 586, 592; 175 NW 187 (1919). There also the charge was not itself misleading or erroneous. This Court said, "We cannot conceive that there was any likelihood of the jury being led to a wrong conclusion by the charge concerning the question of reasonable doubt, or burden of proof.”

See People v Burkard, 374 Mich 430, 437; 132 NW2d 106 (1965), where the judge gave erroneous instructions on self-defense (requiring that the jury be satisfied beyond a reasonable doubt that an assault in fact was about to be made), but then later "with precision and accuracy” gave the proper test to be applied (honest belief of assault). This Court said, "[W]e may not speculate on what effect the patently erroneous excerpt may have had, in the absence of the trial judge himself instructing the jury to disregard it” and reversed the conviction.

People v Eggleston, 186 Mich 510, 514-515; 152 NW 944 (1915).

In People v Woods, n 3 supra, 626, this Court directed that the term "malice” no longer be used in "trial instructions.”

Although Kelly was seen carrying a rifle, the gun was not fired. The fatal injury was inflicted by a knife.

Ante, p 264.

The majority does not in terms say that any error was harmless; nor does the prosecutor’s brief ask that the conviction be aflirmed on the ground that any error in the felony-murder instruction was harmless.

Ante, p 273.

409 Mich 730.

409 Mich 728.

See also the excerpt quoted in Aaron from the commentary to Hawaii’s murder statute which specifically abolishes the felony-murder doctrine:

" 'Even in its limited formulation the felony-murder rule is still objectionable. It is not sound principle to convert an accidental, negligent, or reckless homicide into a murder simply because, without more, the killing was in furtherance of a criminal objective of some defined class. Engaging in certain penally-prohibited behavior may, of course, evidence a recklessness sufficient to establish manslaughter, or a practical certainty or intent, with respect to causing death, sufficient to establish murder, but such a ñnding is an independent determination which must rest on the facts of each case.”’ 409 Mich 703. (Emphasis supplied.)

Kelly testified that he had nothing to do with the killing — was not present and did not know of the killing — but admitted that he later aided his brother-in-law, Moses, in moving a television set off the decedent’s porch and admitted that he had bloodstains on his pants. Two witnesses testified to the contrary, stating that both Moses and Kelly had said that Kelly had pushed the decedent down while Moses had tied him down.

Ante, p 276.

409 Mich 727-728.

409 Mich 729-730.

Id., 728.

The following cases are representative of the cases cited by Professors LaFave and Scott:

In People v Jematowski, 238 NY 188, 192; 144 NE 497 (1924), the firing of two or more shots into a house with knowledge that it was occupied by human beings "evinced a wicked and depraved mind regardless of human life,” sufficient to support a conviction of murder. Similarly, shooting into a moving train and killing a brakeman whom the defendant had never seen "evincefd] a heart regarless [sic] of social duty and fatally bent on mischief’ (Banks v State, 85 Tex Crim 165, 166; 211 SW 217 [1919]), as does a police officer’s attempt forcibly to stop an automobile on the highway by shooting at the occupied vehicle. Wiley v State, 19 Ariz 346; 170 P 869 (1918). In Brinkley v State, 233 A2d 56, 58 (Del, 1967) the defendant fired into a two-hundred square foot area with a high-powered rifle, not aiming directly at a woman yet pointing in her general direction. She died when bullets ricocheted off the bed on which she was sitting. The court said that the defendant "must have known that bullets ricochet in unpredictable directions upon hitting hard substances” and affirmed his conviction of murder. In Commonwealth v Malone, 354 Pa 180; 47 A2d 445 (1946), the defendant pointed a .32 caliber revolver, known to contain one bullet, against the vital part of a person, and pulled the trigger three times in a game of Russian roulette resulting in the discharge of the gun and the death of the other person.

In Mayes v People, 106 Ill 306 (1883), the defendant threw a heavy glass tumbler in the direction of his wife, who was carrying a lighted *301oil lamp, which caused the oil to ignite and burn, causing her death. This was held to be murder, whether he intended the tumbler to hit his wife or some other person or whether, without any specific intent, he threw the glass with general malicious recklessness, disregarding any and all consequences.

In Regina v Ward [1956] 1 QB 351, 352, the defendant shook a child "us[ing] his full force” to make her be quiet which resulted in her death; this was held to justify a conviction of murder.

409 Mich 729.

The instruction is conceptionally inconsistent with the statute (MCL 750.329; MSA 28.561) that provides that a person who causes the death of another by the discharge of a firearm pointed or aimed intentionally is guilty of the crime of manslaughter if he acted without "malice.” The instruction permits the jury to find murderous intent from conduct that the statute recognizes may not have been prompted by such intent.

"It would be very different if the likelihood of a killing in the course of a robbery were so substantial that one should share the blame for the killing if he somehow participated in the felony.” 458 US 799.

Ante, p 276.

See n 21.