Comber v. United States

In these consolidated appeals, we are faced with the immediate question of what jury instructions for the crime of manslaughter are appropriate where a person *32 dies as a result of bare-fisted blows to the face. Like an unraveling string, this inquiry has led to and necessitated a more general examination of the law of manslaughter and particularly its division in our jurisdiction into “voluntary” and “involuntary” components. 1 In No. 87-249, Joseph Pinkney died after appellant Comber struck him either once or twice in the face with his bare fist. In No. 89-31, Ger-iel Butler died after appellant Hayward, in two incidents separated by five to twenty-five minutes, punched him twice in the face. Both men were indicted for second-degree murder in violation of D.C.Code § 22-2403 (1989) and were tried before juries. In each case, the jury acquitted the defendant of second-degree murder but returned a guilty verdict on the lesser-included charge of voluntary manslaughter. Id. § 22-2405. Both appellants challenge the voluntary manslaughter instructions upon which the juries based their verdicts. They also raise challenges pertaining to involuntary manslaughter instructions: appellant Hayward claims the trial court erred in refusing to give such an instruction, while appellant Comber claims the involuntary manslaughter instruction in his case was improper. Because we agree with these contentions of instructional error, we reverse and remand for new trials.

I. THE HOMICIDES

A. Appellant Comber

Gilbert Comber apparently did not approve of his sister Mary Comber’s relationship with Joseph Pinkney. On February 3, 1986, Pinkney, Mary’s former boyfriend, came to the Comber residence to visit her. When Ms. Comber attempted to leave the house to speak with Pinkney, appellant intervened and would not permit her to leave. Appellant and Ms. Comber began to struggle, and appellant hit her. After Pinkney saw this, he and appellant began to argue. However, the two men were separated, and Pinkney left the area before any further violence erupted. During the afternoon of February 4, Pinkney and Mary Comber arrived at the Comber residence after having spent the day together. The two had decided to get married, and had been drinking with friends. A friend of the Combers mistakenly told appellant that Pinkney and Ms. Comber had secretly been married. Saying he was going to get his sister, appellant went out to the alley where Ms. Comber and Mr. Pinkney had parked their car. Witnesses differed as to what happened next. All agreed, however, that Comber, who was substantially smaller by weight than Pinkney, punched Pinkney either once or twice in the face. Pinkney, who was extremely intoxicated at the time of death, fell down, and appellant returned to his house. Though Pinkney was still conscious after being knocked to the ground, he later lapsed into unconsciousness; by the time police arrived, he appeared to be dead. The medical examiner who performed an autopsy on Pinkney’s body testified that the cause of death was one or more extremely forceful blows to the face which caused subarachnoid brain hemorrhaging, or bleeding in the part of the brain which controls the heartbeat and respiration. According to the medical examiner, there was no evidence that Pink-ney’s death resulted from his head striking the pavement when he fell. Appellant Comber testified that he struck Mr. Pink-ney only once, and in self-defense. He stated that Pinkney took a swing at him when he tried to get his sister to return to *33 the house with him, and that he never intended to kill Pinkney.

B. Appellant Hayward

In the early morning hours of November 27, 1987, appellant Hayward struck Geriel Butler in the jaw. Butler fell into the street, hit his head, and lost consciousness. He soon regained consciousness, stood up, and walked away. Witnesses disagreed about precisely what happened next, but they all agreed that appellant Hayward and Butler encountered one another again a short time later near a van from which a vendor sold clothes. Appellant Hayward again punched Butler in the jaw. As Butler fell to the ground, the back of his head struck the concrete. Butler lost consciousness and died later that morning at D.C. General Hospital. The medical examiner who performed an autopsy bn Butler’s body testified that the cause of death was swelling and herniation of the brain, caused by the impact to the back of Butler’s head when he fell and hit the ground.

Appellant Hayward testified that he struck Butler in self-defense. He stated that Butler approached him and asked to purchase drugs. After being rebuffed, Butler hollered at appellant Hayward and approached him with his fist balled up. Thinking Butler was about to hit him, appellant Hayward struck Butler. Hayward stated that he then walked across the street to the clothes van, where a short time later Butler again approached, shaking his fist and seeking retribution for the earlier incident. Thinking that Butler would strike him, Hayward again hit Butler, who fell, hitting his head on the concrete.

II. THE INSTRUCTIONS

A. Appellant Comber

After extended discussions, the trial court in Comber’s case decided to instruct the jury on both the lesser-included offenses of voluntary manslaughter and involuntary manslaughter. As to each offense, the judge modified the District’s standard jury instructions. The court gave the following instructions on voluntary manslaughter:

Now, let me read to you the jury instructions on voluntary manslaughter. Manslaughter is the unlawful killing of a human being without malice. Manslaughter is committed when a human being is killed unlawfully in the sudden heat of passion caused by adequate provocation as the Court has already defined those terms for you. The elements of this offense, each of which the Government must prove beyond a reasonable doubt are as follows:

One: That the defendant inflicted an injury or injuries upon the deceased from which the deceased died.

Two: That the killing was committed without legal justification or excuse.

And three: That the defendant intended to commit the acts which inflicted the injury or injuries.

To establish the first essential element it is necessary that the defendant have inflicted an injury or injuries upon the deceased and that the deceased died as a result of such injury or injuries.

To establish the second essential element of the offense it is necessary that you find the defendant guilty beyond a reasonable doubt, that the defendant did not act in self-defense.

And to establish the third essential element it is necessary that you find that the defendant intended to commit the act which inflicted the injury or injuries upon the deceased. 2

(Emphasis added.)

On the crime of involuntary manslaughter, the trial court instructed the jury as follows:

*34 [IJnvoluntary manslaughter is the unlawful killing of a human being without malice. It may be a killing committed without a specific intent to kill or even without the specific intent to inflict injury which causes death. One may be found guilty of involuntary manslaughter if you find that his conduct was so reckless that it involved extreme danger of death or serious bodily harm and was a gross deviation from the standard of conduct a reasonable person should have observed under the circumstances.

Now, the elements of this offense, each of which the Government must prove beyond a reasonable doubt, are as follows:

One: That the defendant inflicted an injury upon the deceased from which the deceased died.

Two: That the injury was a result of a course of conduct involving extreme danger of death or serious bodily injury.

Three: That although the conduct was not intentional it amounted to recklessness and was a gross deviation from the standard of conduct that a reasonable person should have observed.

And four: That the killing was committed without legal justification or excuse. 3

(Emphasis added.)

According to these instructions, the essential difference between voluntary and involuntary manslaughter lies in whether or not the defendant intentionally committed the act that caused death. In effect, the court instructed the jury that if Comber intentionally punched Pinkney in the face, the jury should find him guilty of voluntary manslaughter. On the other hand, if Comber punched Pinkney only accidentally, and the unintentional punch rose to the requisite level of recklessness, then the jury should find him guilty of involuntary manslaughter.

B. Appellant Hayward

Hayward requested instructions on both voluntary and involuntary manslaughter. The trial court agreed to instruct the jury on voluntary manslaughter, and gave the jury the following charge:

Voluntary manslaughter ... is the unlawful killing of a human being without malice. The essential elements of the offense of voluntary manslaughter, each of which the Government must prove beyond a reasonable doubt are:

One, that the defendant inflicted an injury or injuries upon the deceased from which the deceased died;

[A]nd, two, that the killing was committed without legal justification or excuse.

To establish the first essential element of that offense, it is as I have told you necessary that the defendant have inflicted an injury or injuries. With regard to the second element of that offense, it is necessary that the killing or homicide have been committed without legal justification or excuse.

Justifiable homicide is the necessary killing of another person in the performance of a legal duty or where the person who kills not being himself at fault has the legal right to kill. Excusable homicide occurs where the person who kills although himself at fault had the legal *35 right so to kill or where the killing was the accidental result of a lawful act done in a lawful manner. 4

In response to the appellant’s request for an involuntary manslaughter instruction, however, the trial court declared that Butler’s killing “wasn’t ... a result of recklessness.” Accordingly, the court refused to give such an instruction.

III. THE CRIME OF MANSLAUGHTER

A. Historical background

Although D.C.Code § 22-2405 (1989) establishes the penalty for manslaughter, “there is no statutory definition of manslaughter in the District of Columbia.” United States v. Bradford, 344 A.2d 208, 213 (D.C.1975). “[Manslaughter is defined, rather, by reference to the common law.” Williams v. United States, 569 A.2d 97, 98 (D.C.1989). See also Bradford, supra, 344 A.2d at 213. 5 Accordingly, in resolving the issues before us, a brief review of the common law emergence of the crime of manslaughter will be useful.

1. The division of criminal homicide into murder and manslaughter

“What we now know as murder and manslaughter constituted just one offense under the common law of England.” R. Perkins & R. Boyce, Criminal Law 125 (3d ed. 1982). At the turn of the sixteenth century, all homicides, with the exception of accidental homicides, homicides committed in self-defense, or homicides committed “in the enforcement of justice,” “were deemed unlawful and were punished by death.” Mullaney v. Wilbur, 421 U.S. 684, 692, 95 S.Ct. 1881, 1886, 44 L.Ed.2d 508 (1975). The harsh effects of this regime were mitigated, however, by the extension of ecclesiastic jurisdiction. Id. Ecclesiastic courts, which retained jurisdiction to try clerics accused of criminal offenses, see Williams, supra, 569 A.2d at 101 n. 9, did not impose capital punishment. Rather, under ecclesiastic law, a person who committed an unlawful homicide “received a one-year sentence, had his thumb branded and was required to forfeit his goods.” Mullaney v. Wilbur, supra, 421 U.S. at 692, 95 S.Ct. at 1886. The transfer of a case from the secular to the ecclesiastic jurisdiction, a procedural device known as “benefit of clergy,” thus “resulted in leniency of the most important sort.” People v. Burroughs, 35 Cal.3d 824, 839, 201 Cal.Rptr. 319, 329, 678 P.2d 894, 904 (1984) (concurring opinion). Moreover, “[b]y the fifteenth century, the courts began to accept proof of literacy as the test for clerical status, with the result that benefit of clergy became a ‘massive fiction’ that ‘tempered in practice the harshness of the common law rule that virtually all felonies were capital offenses.’ ” Williams, supra, 569 A.2d at 101 n. 9 (citation omitted).

Perhaps because of concern about “the accretion of ecclesiastic jurisdiction at the expense of the secular,” Mullaney v. Wilbur, supra, 421 U.S. at 692, 95 S.Ct. at 1886, or perhaps because “ ‘the number of serious offenses appeared to increase,’ ” Williams, supra, 569 A.2d at 101 n. 9 (citation omitted), England’s monarchs, beginning in the late fifteenth century and into the first half of the sixteenth, enacted *36 a series of statutes which excluded a class of the most heinous homicides from benefit of clergy. Mullaney v. Wilbur, supra, 421 U.S. at 692-93, 95 S.Ct. at 1886-87. These killings were referred to in the various statutes as “wilful prepense murders,” “murder upon malice prepensed,” and “murder of malice prepensed.” 3 J. Stephen, A History op the Criminal Law of England 44 (1883). See also Mullaney v. Wilbur, supra, 421 U.S. at 692-93 & 693 n. 13, 95 S.Ct. at 1886-87 & 1886 n. 13. “Unlawful homicides that were committed without such malice were designated ‘manslaughter,’ and their perpetrators remained eligible for benefit of clergy.” Id. at 693, 95 S.Ct. at 1886. The offenses encompassed by the new statutes were designated “murder”; perpetrators of these offenses were subject to secular jurisdiction and capital punishment. This distinction between murder and manslaughter persisted “[e]ven after ecclesiastic jurisdiction was eliminated for all secular offenses.” Id. These early statutory developments thus

led to the division of criminal homicides into murder, which retained its status as a capital crime, and the lesser offense of manslaughter. The courts defined murder in terms of the evolving concept of “malice aforethought” and treated manslaughter as a residual category for all other criminal homicides.

Model Penal Code § 210.3 comment 1, at 44 (Official Draft and Revised Comments 1980) (footnotes omitted). See also 3 J. Stephen, supra, at 45.

Thus, manslaughter, “[i]n its classic formulation ... consisted of homicide without malice aforethought on the one hand and without justification or excuse on the other.” Model Penal Code, supra, § 210.3 comment 1, at 44. This definition has been adopted in the District of Columbia. See Morgan v. United States, 363 A.2d 999, 1002 (1976) (“[mjanslaughter is the unlawful — that is, unexcused — killing of a human, without malice”). A homicide which constitutes manslaughter is distinguished from murder by the absence of malice. United States v. Wharton, 139 U.S.App.D.C. 293, 296, 433 F.2d 451, 454 (1970) (malice is “the sole element differentiating murder from manslaughter”), and is distinguished from a killing to which no homicide liability attaches 6 by the absence of factors which would excuse or justify the homicide. Manslaughter is thus a “catch-all” category, defined essentially by reference to what it is not. See R. More-land, The Law of Homicide 61 (1952); 2 W. LaFave & A. Scott, supra note 6, § 7.9, at 251; R. Perkins & R. Boyce, supra, at 104-05. See also 40 Am. Jur. 2D Homicide § 54 (1968) (“[i]f a homicide is neither murder in the first nor in the second degree, and yet is neither justifiable nor excusable in law, it follows, ordinarily, that it must be manslaughter”).

2. The division of manslaughter into voluntary and involuntary manslaughter

The broad and undifferentiated early definition of manslaughter created pres *37 sure for refinement. In the same way that the early common law concept of unlawful homicide had evolved into murder and manslaughter, so too did manslaughter divide into separate categories of voluntary and involuntary manslaughter, depending on the type of conduct involved. 2 W. LaFave & A. SCOTT, supra note 6, § 7.9, at 251; id. § 7.12, at 276-77. The distinction between the two varieties of manslaughter was noted by Blackstone as early as 1769. See 4 W. Blackstone, Commentaries *191-93 (originally published 1769). 7 Initially, the distinction between voluntary and involuntary manslaughter was deemed “purely ... factual,” in that “the punishment [was] the same for both.” R. Perkins & R. Boyce, supra, at 83. At least until 1975, this tradition was reflected in the District of Columbia, where the punishment for manslaughter was prescribed by a single statute which made no distinction between voluntary and involuntary manslaughter, see D.C.Code § 22-2405, and where “it ha[d] not been the practice to charge [voluntary and involuntary manslaughter] separately and explicitly in indictments.” Bradford, supra, 344 A.2d at 216. However, in Bradford, this court made explicit that voluntary and involuntary manslaughter are legally separate offenses. Id. Recognition of this distinction was based at least in part on the perception that voluntary man-slaughters ordinarily involve more culpable behavior than involuntary manslaughters, and that voluntary manslaughter frequently warrants a more severe sentence than involuntary manslaughter. Id. at 211; 2 W. LaFave & A. Scott, supra note 6, § 7.9, at 251 (“[t]oday many American jurisdictions maintain the old distinction between voluntary and involuntary manslaughter, usually awarding a less severe punishment for involuntary than for voluntary manslaughter”); Model Penal Code, supra, § 210.3 comment 1, at 46 & n. 10 (“statutes dividing manslaughter into voluntary and involuntary manslaughter typically imposed greater penalties for voluntary manslaughter”); see, e.g., 18 U.S.C. § 1112(b) (1988) (voluntary manslaughter punishable by imprisonment for not more than ten years; involuntary manslaughter punishable by imprisonment for three years). 8

Both voluntary and involuntary manslaughter may still be accurately defined as “homicide[s] without malice aforethought on the one hand and without justification or excuse on the other.” Model Penal Code, supra, § 210.3 comment 1, at 44. The two offenses are distinguishable by virtue of the perpetrator’s state of mind; specifically, the difference between the two offenses lies in the basis for concluding that the perpetrator acted without malice aforethought. As explained below, in all voluntary manslaughters, the perpetrator acts with a state of mind which, but for the presence of legally recognized mitigating circumstances, would constitute malice aforethought, as the phrase has been defined for purposes of second-degree murder. All involuntary manslaughters, in contrast, are killings in which the perpetrator’s state of mind, without any consideration of any issues of mitigation, would not constitute malice aforethought.

B. “Malice aforethought” for purposes of second-degree murder

Because of the relationship between voluntary manslaughter and murder, *38 an understanding of the scope of the offense of voluntary manslaughter requires an examination of the states of mind which would make an unlawful killing second-degree murder. At common law, an unjustified or unexcused homicide rose to the level of murder if it was committed with malice aforethought. R. Perkins & R. Boyoe, supra, at 57. This definition continues in effect in the District of Columbia. D.C. Code § 22-2403. 9

For purposes of second-degree murder, “malice aforethought” has evolved into “a term of art” embodying several distinct mental states. Byrd, supra note 9, 500 A.2d at 1385. As the commentary to the Model Penal Code explains:

Whatever the original meaning of [the] phrase [malice aforethought], it became over time an “arbitrary symbol” used by judges to signify any of a number of mental states deemed sufficient to support liability for murder. Successive generations added new content to “malice aforethought” until it encompassed a variety of mental attitudes bearing no predictable relation to the ordinary sense of the two words.

Model Penal Code, supra, § 210.2 comment 1, at 14. See also 2 W. Burdick, The Law op Crime § 448 at 160-61 (1946) (the phrase “malice aforethought” “is now a purely technical phrase, and is used to define the state of mind which must accompany murder”). Following the common law trend, this court has recognized that malice aforethought, in the District of Columbia, “denotes four types of murder, each accompanied by distinct mental states.” Byrd, supra note 9, 500 A.2d at 1385.

First, a killing is malicious where the perpetrator acts with the specific intent to kill. See id. at 1385; Logan v. United States, 483 A.2d 664, 671 (D.C.1984). Second, a killing is malicious where the perpetrator has the specific intent to inflict serious bodily harm. Byrd, supra note 9, 500 A.2d at 1385. 10 Third, “an act may involve *39 such a wanton and willful disregard of an unreasonable human risk as to constitute malice aforethought even if there is not actual intent to kill or injure.” R. Perkins & R. BoyCE, supra, at 59. 11 In Byrd v. United States, supra note 9, 500 A.2d at 1385, we referred to this kind of malicious killing as “depraved heart” murder.

Although not all jurisdictions are in agreement on the matter, see 2 W. La-Fave & A. Scott, supra note 6, § 7.4, at 200, in the District of Columbia, such depraved heart malice exists only where the perpetrator was subjectively aware that his or her conduct created an extreme risk of death or serious bodily injury, but engaged in that conduct nonetheless. 12 Under our formulation, malice “may be found ‘where conduct is reckless and wanton, and a gross deviation from a reasonable standard of care, or such a nature that a jury is warranted in inferring that the defendant was aware of a serious risk of death or serious bodily harm.’ ” Logan, supra, 483 A.2d at 671 (citation omitted). In such circumstances, the defendant’s behavior is said to manifest a “wanton disregard of human life.” Dixon, supra note 12, 135 U.S.App.D.C. at 406 n. 8, 419 F.2d at 293 n. 8; see also Powell, supra note 12, 485 A.2d at 603 (defendant’s conduct “manifested a disregard for the lives and safety of others”). 13

Historically, a fourth kind of malice existed when a killing occurred in the course of the intentional commission of a felony. Under this “felony-murder” rule, “[mjalice, an essential element of murder, is implied from the intentional commission of the underlying felony even though the actual killing might be accidental.” Byrd, supra note 9, 500 A.2d at 1386 (quoting Shanahan v. United States, 354 A.2d 524, 526 (D.C.1976)). In the District of Columbia, first-degree felony murder liability attaches where the perpetrator “kills another purposely ;.. in perpetrating or in attempting to perpetrate” a felony. D.C.Code § 22-2401. 14 As to unintentional killings, *40 first-degree murder liability attaches only if the killing occurs in the course of one of six enumerated felonies. 15

C. Justification, excuse, and mitigation

Even where an individual kills with one of the four states of mind described above, the killing is not malicious if it is justified, excused, 16 or committed un *41 der recognized circumstances of mitigation. Implicit in the notion of malice aforethought is “the absence of every sort of justification, excuse or mitigation.” R. Perkins & R. Boyoe, supra, at 75. See also Thomas v. United States, 557 A.2d 1296, 1299 (D.C.1989) (“[mjalice in the legal sense imports ... the absence of all elements of justification [or] excuse” (citation omitted)). The absence of justification, excuse, or mitigation is thus an essential component of malice, and in turn of second-degree murder, on which the government bears the ultimate burden of persuasion. See Mullaney v. Wilbur, supra, 421 U.S. at 703, 95 S.Ct. at 1892; Logan, supra, 483 A.2d at 672 n. 11. 17 For example, even an intentional killing, if it comports with legally accepted notions of self-defense, see McPhaul v. United States, 452 A.2d 371, 373 (D.C.1982), is not malicious; it is excused and accordingly no crime at all.

Unlike circumstances of justification or excuse, legally recognized mitigating factors do not constitute a total defense to a murder charge. Such circumstances may, however, serve to “reduc[e] the degree of criminality” of a homicide otherwise committed with an intent to kill, an intent to injure, or in conscious and wanton disregard of life. Bradford, supra, 344 A.2d at 215. Though such mitigating circumstances most frequently arise “where the killer has been provoked or is acting in the heat of passion, with the latter including fear, resentment and terror, as well as rage and anger,” id., mitigation may also be found in other circumstances, such as “when excessive force is used in self-defense or in defense of another and ‘[a] killing [is] committed in the mistaken belief that one may be in mortal danger.’ ” Logan, supra, 483 A.2d at 671 (quoting Bradford, supra, 344 A.2d at 215). See also 2 W. LaFave & A. Scott, supra note 6, § 7.11,, at 271-76; R. Perkins & R. Boyoe, supra, at 102-03. The mitigation principle is predicated on the legal system’s recognition of the “weaknesses” or “infirmity” of human nature, R. Perkins & R. Boyce, supra, at 84; Bradford, supra, 344 A.2d at 214 (citation omitted), as well as a belief that those who kill under “extreme mental or emotional disturbance for which there is reasonable explanation or excuse” are less “morally blameworth[y]” than those who kill in the absence of such influences. Model Penal Code, supra, § 210.3 comment 5, at 53, 54 (internal quotation marks omitted); see also Mullaney v. Wilbur, supra, 421 U.S. at 698, 95 S.Ct. at 1889 (citation omitted). Legally recognized mitigating factors serve to extenuate or “dampen[ ],” Bradford, supra, 344 A.2d at 215, the otherwise malicious nature of the perpetrator’s mental state, and thus *42 serve as a bar to a conviction for murder. 18

D. Voluntary manslaughter

In this jurisdiction, a homicide constitutes voluntary manslaughter where the perpetrator kills with a state of mind which, but for the presence of legally recognized mitigating circumstances, would render the killing murder. See Bradford, supra, 344 A.2d at 215 (“[killings classified as voluntary manslaughter would in fact be second degree murder but for the existence of circumstances that in some way mitigate malice”); Logan, supra, 483 A.2d at 672 (defendant is guilty of voluntary manslaughter where “the purpose to kill ... is dampened so as to mitigate malice” (internal quotation marks, citation omitted)); cf. West v. United States, 499 A.2d 860, 864 (D.C.1985) (defendant is entitled to voluntary manslaughter instruction as a lesser-included offense of second-degree murder only where there is evidence of mitigating circumstances); Morgan, supra, 363 A.2d at 1002 (same). 19 This definition of voluntary manslaughter reflects the traditional common law view and the prevailing national norm, as indicated by the formulations in numerous criminal law treatises. See, e.g., W. Clark & W. Marshall, A Treatise on the Law of Crimes § 258, at 339 (5th ed. 1952) (“[i]n all cases of voluntary manslaughter there is an actual intention to kill, or there is an intention to inflict great bodily harm, from which such an intent may be implied” (emphasis added)); J. Dressler, Understanding Criminal Law 450 (1987) (“an intentional killing committed in ‘sudden heat of passion’ as the result of adequate provocation constitutes voluntary manslaughter” (emphasis added)); id. at 473-74 (a defendant is guilty of “voluntary manslaughter rather than murder if she intentionally killed [the victim]” in the heat of *43 passion caused by adequate provocation (emphasis added)); 2 W. LaFave & A. Soott, supra note 6, § 7.10, at 252 (“[voluntary manslaughter in most jurisdictions consists of an intentional homicide committed under extenuating circumstances which mitigate, though they do not justify or excuse, the killing” (emphasis added)); R. Perkins & R. Boyce, supra, at 83 (voluntary manslaughter covers “any killing with a person-endangering-state-of-mind that is neither murder nor innocent homicide”) (footnote omitted); 20 id. at 104; 2 C. Torcía, Wharton’s Criminal Law § 153, at 236-37 (14th ed. 1979) (“[vjolun-tary manslaughter is an intentional killing in the heat of passion as the result of severe provocation.... [A] killing, which would otherwise constitute murder, is mitigated to voluntary manslaughter” (emphasis added, footnotes omitted)); id. at 238 (for voluntary manslaughter liability to attach, the “defendant may act with the intent to kill or with any mental state which amounts to ‘malice’; the malice is negated by the provocation and the offense is mitigated from murder to voluntary manslaughter” (emphasis added)). 21

The government agrees that homicides in which the perpetrator acts with a state of mind which, absent recognized mitigating circumstances, would render the killing murder constitute voluntary manslaughter. However, the government contends that voluntary manslaughter also encompasses another distinct category of killings, namely, homicides resulting when a defendant acts with the intent to cause any injury to or apply any force against the victim. Since a killing occurring under mitigating circumstances would rise to the level of voluntary manslaughter if the perpetrator acted with specific intent to cause serious bodily injury, the only killings included in the government’s proposed definition not already encompassed by the above-discussed definition are those resulting from an act committed with intent to cause non-serious injury but which result in death. For several reasons, we must disagree with the government’s assertion. *44 Firstly, it would result in the adoption of an expanded definition of voluntary manslaughter at odds with the generally recognized common law understanding of that offense, as described above. Secondly, the government grounds its assertion in authority which does not markedly support its position. Thirdly, acceptance of the government’s position would collide with the apparently universal classification, in jurisdictions which divide manslaughter into its voluntary and involuntary forms, of killings following a simple assault as involuntary, rather than voluntary, manslaughter. Finally, the government’s position would brand a defendant as a “voluntary” killer where he acted with a mind free of any intent to kill or seriously wound and free of a degree of knowing recklessness making highly likely such a result. We think that both common law and authority make a death-oriented mental state the determinative dividing line between the two forms of manslaughter, which should re-fleet their differing connotations of culpability.

In support of its position that a killing is voluntary manslaughter whenever a death results from an act committed with the intent to apply any force against or inflict non-serious injury on the victim, the government invokes our opinion in United States v. Bradford, supra, 344 A.2d 208. In dealing with the specific problem we are presented with in these appeals — the application of some force against a decedent— the Bradford opinion is imprecise. Both parties invoke different parts of Bradford in support of their position, each rightfully finding language in the opinion which can be read to support their arguments. 22 A major purpose of our going en banc in these cases is to resolve the ambiguity in the Bradford opinion. We think that against the background of the common-law development of murder and manslaughter as set forth above, the language of the Bradford opinion invoked by the government must be read in context 23 and limited *45 in its application more narrowly than the government would do.

We read Bradford as limiting the scope of voluntary manslaughter to killings where the perpetrator acts with a state of mind which, but for the presence of recognized mitigating factors, would render the killing malicious, and hence murder. The court expressly declared that “[killings classified as voluntary manslaughter would in fact be second degree murder but for the existence of circumstances that in some way mitigate malice.” Id. at 215 (emphasis added). Moreover, in the paragraph summarizing its discussion of voluntary manslaughter in Bradford, the court stated that voluntary manslaughter “could more accurately be said to be (1) an unlawful killing of a human being (2) with malice which has been mitigated by the presence of circumstances judicially recognized as reducing the degree of criminality.” Id. 24 Because a homicide resulting from an act committed with the intent to inflict only non-serious bodily injury would not be a killing with malice and would not constitute second-degree