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Full Opinion
PEOPLE
v.
AARON
PEOPLE
v.
THOMPSON
PEOPLE
v.
WRIGHT
Supreme Court of Michigan.
Frank J. Kelley, Attorney General, and Robert A. Derengoski, Solicitor General, for the people.
William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people in Aaron.
Robert L. Kaczmarek, Prosecuting Attorney, Peter C. Jensen, Special Prosecutor, and Patrick M. Meter, Assistant Prosecuting Attorney, for the people in Thompson.
William F. Delhey, Prosecuting Attorney, and Lynwood E. Noah, Senior Assistant Prosecuting Attorney, and Elizabeth Osgood Pollard, Assistant Prosecuting Attorney, for the people in Wright.
Carl Ziemba for defendant Aaron.
State Appellate Defender (by Daniel J. Wright) for defendant Thompson.
Marc L. Goldman and R. Michael Stillwagon for defendant Wright.
Rehearing denied as to Thompson December 23, 1980.
FITZGERALD, J.
The existence and scope of the felony-murder doctrine have perplexed generations of law students, commentators and jurists in the United States and England, and have split our own Court of Appeals.[1] In these cases, we must *687 decide whether Michigan has a felony-murder rule which allows the element of malice required for murder to be satisfied by the intent to commit the underlying felony or whether malice must be otherwise found by the trier of fact. We must also determine what is the mens rea required to support a conviction under Michigan's first-degree murder statute.[2]
FACTS
In Thompson, defendant was convicted by a jury of first-degree felony murder as the result of a death which occurred during an armed robbery. The trial judge instructed the jury that it was not necessary for the prosecution to prove malice, as a finding of intent to rob was all that was necessary for the homicide to constitute first-degree murder.[3] The Court of Appeals held that reversible error resulted from the trial court's failure to instruct *688 the jury on the element of malice in the felony-murder charge.[4]
In Wright, defendant was convicted by a jury of two counts of first-degree felony murder for setting fire to a dwelling causing the death of two people. The trial court instructed the jury that proof that the killings occurred during the perpetration of arson was sufficient to establish first-degree murder.[5] The Court of Appeals reversed the convictions, holding that it was error to remove the element of malice from the jury's consideration.[6]
Defendant Aaron was convicted of first-degree felony murder as a result of a homicide committed during the perpetration of an armed robbery. The jury was instructed that they could convict defendant of first-degree murder if they found that defendant killed the victim during the commission or attempted commission of an armed robbery. The trial court refused defendant's request to instruct *689 on lesser included offenses. The Court of Appeals affirmed[7] and we remanded the case to the trial court for entry of a judgment of conviction of the lesser included offense of second-degree murder and for resentencing.[8] Defendant subsequently filed an application for reconsideration with this Court.
In Thompson and Wright we granted leave to appeal limited to the question: "Whether the Court of Appeals erred in reversing the murder conviction in this case because of the lack of an instruction on a requirement for finding malice in a felony-murder situation."[9]
In Aaron, we granted leave to appeal to consider whether defendant's conviction of first-degree murder could be reduced to second-degree murder where the jury was instructed only on felony murder.[10]
II. HISTORY OF THE FELONY-MURDER DOCTRINE
Felony murder has never been a static, well-defined rule at common law, but throughout its history has been characterized by judicial reinterpretation to limit the harshness of the application of the rule. Historians and commentators have concluded that the rule is of questionable origin and that the reasons for the rule no longer exist, making it an anachronistic remnant, "a historic survivor for which there is no logical or practical basis for existence in modern law".[11]
The first formal statement of the doctrine is *690 often said to be Lord Dacres' case, Moore 86; 72 Eng Rep 458 (KB, 1535).[12] Lord Dacres and some companions agreed to enter a park without permission to hunt, an unlawful act, and to kill anyone who might resist them.[13] While Lord Dacres was a quarter of a mile away, one member of his group killed a gamekeeper who confronted him in the park. Although Lord Dacres was not present when the killing occurred, he, along with the rest of his companions, was convicted of murder and was hanged. Contrary to the construction placed on this case by those who see it as a source of the felony-murder rule, the holding was not that Lord Dacres and his companions were guilty of murder because they had joined in an unlawful hunt in the course of which a person was killed, but rather that those not present physically at the killing were held liable as principals on the theory of constructive presence. Moreover, because they had agreed previously to kill anyone who might resist them, all the members of the group shared in the mens rea of the crime.[14] Thus, because Lord Dacres' case involved express malice, no doctrine finding malice from the intention to commit an unlawful act was necessary or in fact utilized.[15]
*691 Another early case which has been cited[16] for the origin of the felony-murder doctrine was decided after Lord Dacres' case. In Mansell & Herbert's case, 2 Dyer 128b; 73 Eng Rep 279 (KB, 1558), Herbert and a group of more than 40 followers had gone to Sir Richard Mansfield's house "with force to seize goods under pretence of lawful authority".[17] One of Herbert's servants threw a stone at a person in the gateway which instead hit and killed an unarmed woman coming out of Mansfield's house. The question was agreed to be whether the accused were guilty of murder or manslaughter. Since misadventure was not considered, it can be assumed that the throwing of the stone was not a careless act but that the servant who threw the stone intended at least to hit, if not kill, some person on Mansfield's side.[18] Although the court divided, the majority held that if one deliberately performed an act of violence to third parties, and a person not intended died, it was murder regardless of any mistake or misapplication of force.[19] The minority would have held it to be manslaughter because the violent act was not directed against the woman who died. Thus, Herbert's *692 case involved a deliberate act of violence against a person, which resulted in an unintended person being the recipient of the violent act.
Some commentators[20] suggest that an incorrect version of Dacres' case, which was repeated by Crompton,[21] formed the basis of Lord Coke's statement of the felony-murder rule:
"If the act be unlawful it is murder. As if A. meaning to steale a deere in the park of B., shooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in a bush: this is murder, for that the act was unlawfull, although A. had no intent to hurt the boy, nor knew not of him. But if B. the owner of the park had shot at his own deer, and without any ill intent had killed the boy by the glance of his arrow, this had been homicide by misadventure, and no felony.
"So if one shoot at any wild fowle upon a tree, and the arrow killeth any reasonable creature afar off, without any evill intent in him, this is per infortunium [misadventure]: for it was not unlawful to shoot at the wilde fowle: but if he had shot at a cock or hen, or any tame fowle of another mans, and the arrow by mischance had killed a man, this had been murder, for the act was unlawfull."[22]
The above excerpt from Coke is, along with Lord Dacres' and Herbert's cases, most often cited[23] as *693 the origin of the felony-murder doctrine.[24] Unfortunately, Coke's statement has been criticized as completely lacking in authority. "A telling historical comment on the essential non-logic of the rule is made by those who see its genesis as a blunder by Coke in the translation and interpretation of a passage from Bracton."[25] The passage from Bracton is as follows:
"But here it is to be distinguished whether a person is employed upon a lawful or unlawful work, as if a person has projected a stone towards a place across which men are accustomed to pass, or whilst a person *694 pursues a horse or an ox, and some one has been struck by the horse or the ox, and such like, this is imputed to his account. But if he was employed in a lawful work, as if a master is flogging his scholar for the sake of discipline, or if when a person was casting down hay from a cart, or cutting into a tree and such like, if he had taken as diligent care as he could, by looking out and by calling out, * * * or the master not exceeding moderation in flogging his scholar, blame is not imputable to him." (Emphasis added.)[26]
This authority, however, does not support Coke's unwarranted extension which Stephen termed "astonishing"[27] and "monstrous".[28] As one writer points out:
"It can be seen at a glance that all Bracton intends to convey by this is that the killing in the cases he mentions would be unlawful; he in no way states that it would amount to murder (`murdrum'), which term indeed had quite a special and peculiar significance at the time at which he wrote, being properly confined to crimes of the nature of secret assassinations. Bracton, in fact, was too familiar with the Roman law * * * to have made such a mistake."[29]
Stephen notes also that the example Bracton uses would not come within the category of murder as Bracton defines it.[30]
*695 In addition to his citation to Bracton, Coke cites three cases to support his statement of the felony-murder rule. Yet Stephen, "upon careful search into Coke's authority", concludes that Coke's statement of the rule is "entirely unwarranted by the authorities which he quotes".[31] Another early writer, commenting on the harsh doctrine propounded by Coke, states, "`This is not distinguished by any statute but is the common law only of Sir Edward Coke'."[32]
At early common law, the felony-murder rule went unchallenged because at that time practically *696 all felonies were punishable by death.[33] It was, therefore, "of no particular moment whether the condemned was hanged for the initial felony or for the death accidentally resulting from the felony".[34] Thus, as Stephen and Perkins point out, no injustice was caused directly by application of the rule at that time.[35]
Hale, in his Pleas of the Crown, refused to extend the doctrine to include all unlawful acts and instead gave examples of killings resulting from unlawful acts, some of which he said were murders and others manslaughter.[36] Stephen understood Hale as requiring an act which was intended to inflict bodily injury of some kind or else the killing would be manslaughter.[37]
Chief Justice Holt, writing in Rex v Keate, Comberbach 406; 90 Eng Rep 557 (KB, 1697), said that Coke's statement was a very exaggerated proposition of law and that for unintentional homicides to constitute murder there must be an intent *697 to commit a felony or a design to do mischief toward a person.[38]
Foster stated that an unintentional killing resulting from an unlawful act would amount to murder only if done "in the prosecution of a felonious intention".[39] Stephen, commenting on Foster's statement of the rule, said, "[T]he one rule is less bad than the other, principally because it is narrower."[40] The only authority cited by Foster is the dictum of Holt, C.J., in Rex v Plummer, Kelyng 109; 84 Eng Rep 1103 (1701), which cited no other authority than Coke for the requirement of a felonious design.[41] Foster's position was reiterated by Hawkins, Blackstone and East.[42]
Case law of Nineteenth-Century England reflects the efforts of the English courts to limit the application of the felony-murder doctrine. See, e.g., Regina v Greenwood, 7 Cox, Crim Cas 404 (1857); Regina v Horsey, 3 F & F 287; 176 Eng Rep 129 (1862),[43] culminating in Regina v Serne, 16 Cox, *698 Crim Cas 311 (1887). In the latter case, involving a death resulting from arson, Judge Stephen instructed the jury as follows:
"[I]nstead of saying that any act done with intent to commit a felony and which causes death amounts to murder, it should be reasonable to say that any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony which causes death, should be murder."
In this century, the felony-murder doctrine was comparatively rarely invoked in England[44] and in 1957 England abolished the felony-murder rule. Section 1 of England's Homicide Act, 1957, 5 & 6 Eliz 2, c 11, ง 1, provides that a killing occurring in a felony-murder situation will not amount to murder unless done with the same malice aforethought as is required for all other murder.
Thus, an examination of the felony-murder rule indicates that the doctrine is of doubtful origin. Derived from the misinterpretation of case law, it went unchallenged because of circumstances which no longer exist. The doctrine was continuously modified and restricted in England, the country of its birth, until its ultimate rejection by Parliament in 1957.
*699 III. LIMITATION OF THE FELONY-MURDER DOCTRINE IN THE UNITED STATES
While only a few states[45] have followed the lead of Great Britain in abolishing felony murder, various legislative and judicial limitations on the doctrine have effectively narrowed the scope of the rule in the United States. Perkins states that the rule is "somewhat in disfavor at the present time" and that "courts apply it where the law requires, but they do so grudgingly and tend to restrict its application where circumstances permit".[46]
The draftsmen of the Model Penal Code have summarized the limitations imposed by American courts as follows:[47]
(1) "The felonious act must be dangerous to life."[48]
(2) and (3) "The homicide must be a natural and *700 probable consequence of the felonious act." "Death must be `proximately' caused."[49] Courts have also required that the killing be the result of an act done in the furtherance of the felonious purpose and not merely coincidental to the perpetration of a felony. These cases often make distinctions based on the identity of the victim (i.e., whether the decedent was the victim of the felony or whether he was someone else, e.g., a policeman or one of the felons) and the identity of the person causing the death.[50]
*701 (4) "The felony must be malum in se."[51]
(5) "The act must be a common-law felony."[52]
(6) "The period during which the felony is in the process of commission must be narrowly construed."[53]
(7) "The underlying felony must be `independent' of the homicide."[54]
Some courts, recognizing the questionable wisdom of the rule, have refused to extend it beyond what is required. "[W]e do want to make clear how shaky are the basic premises on which [the felony-murder rule] rests. With so weak a foundation, it behooves us not to extend it further and indeed, to restrain it within the bounds it has always *702 known." Commonwealth ex rel Smith v Myers, 438 Pa 218; 227; 261 A2d 550, 555 (1970). "We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. Indeed, the rule itself has been abandoned by the courts of England, where it had its inception. It has been subjected to severe and sweeping criticism." People v Phillips, 64 Cal 2d 574, 582-583; 51 Cal Rptr 225; 414 P2d 353, 360 (1966).[55]
Other courts have required a finding of a separate mens rea connected with the killing in addition to the intent associated with the felony. In State v Millette, 112 NH 458, 462; 299 A2d 150, 153 (1972), the Court stated:
"Neither the legislature nor our court ever adopted a presumption of malice from the commission of an unlawful act whether felony or misdemeanor. While language in our cases defining murder may be construed to presume malice from a homicide occurring during the commission of the named inherently dangerous felonies [citations omitted] malice remains an indispensable element in the crime of murder. `Malice is not an inference of law from the mere act of killing; but like any other fact in issue, it must be found by the jury upon competent evidence.'"
This Court has held, at least with killings occurring during commission of non-enumerated felonies, that malice may be inferred but the nature of the felonious act must be considered. People v Jeffrey Carter, 387 Mich 397, 422; 197 NW2d 57 (1972). Similarly, New Mexico has declared that where a non-first-degree felony (this category would include many of Michigan's enumerated *703 felonies) is involved, the presumption that the defendant has the requisite mens rea to commit first-degree murder "is a legal fiction we no longer can support". State v Harrison, 90 NM 439, 442; 564 P2d 1321 (1977).
The Iowa Supreme Court has recently ruled that the issue of malice aforethought necessary for murder must be submitted to the jury and that it may not be satisfied by proof of intent to commit the underlying felony. State v Galloway, 275 NW2d 736, 738 (Iowa, 1979).
Many state legislatures have also been active in restricting the scope of felony murder by imposing additional limitations.[56]
Kentucky[57] and Hawaii[58] have specifically abolished the felony-murder doctrine. The commentary to Hawaii's murder statute is instructive as to that state's reasoning in abolishing the 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 finding is an independent determination which must rest on the facts of each case.
* * *
"In recognition of the trend toward, and the substantial body of criticism supporting, the abolition of the felony-murder rule, and because of the extremely questionable results which the rule has worked in other *704 jurisdictions, the Code has eliminated from our law the felony-murder rule."[59]
Ohio[60] has effectively abolished the felony-murder rule. It defines as involuntary manslaughter the death of another proximately resulting from the offender's commission or attempt to commit a felony.[61]
Seven states have downgraded the offense and consequently reduced the punishment. Alaska,[62] Louisiana,[63] New York,[64] Pennsylvania[65] and Utah[66] have reduced it to second-degree murder. Minnesota[67] classifies felony murder as third-degree murder (with the exception of a killing in the course of criminal sexual conduct in the first or second degree committed with force or violence, which is punished as first-degree murder) which involves a sentence of not more than 25 years. Wisconsin[68] makes felony murder a class B felony which is punishable by imprisonment not to exceed 20 years.
Three states require a demonstration of mens rea beyond the intent to cause the felony. The Arkansas statute[69] states that the defendant must cause the death "under circumstances manifesting extreme indifference to the value of human life". *705 Delaware's first-degree murder statute[70] requires that the defendant cause death recklessly in the course of a felony or with at least criminal negligence in the course of one of the enumerated felonies. It defines as second-degree murder death caused with criminal negligence in the course of non-enumerated felonies.[71] New Hampshire's capital and first-degree murder statutes require that death be caused knowingly in connection with certain enumerated felonies while its second-degree murder statute requires that death be caused "recklessly under circumstances manifesting an extreme indifference to the value of human life".[72]
Some of the limitations on the felony-murder doctrine which have been imposed by the courts, as mentioned above, have been codified by statute. These limitations include restrictions on the underlying felony, requiring that it be forcible, violent or clearly dangerous to human life,[73] that death be proximately caused,[74] that death be a natural or probable consequence[75] or a reasonably foreseeable consequence[76] of the commission or attempted commission of the felony, that the felon must have caused the death,[77] and that the victim must not be one of the felons.[78]
*706 Other restrictions of the common-law rule include the enumeration of felonies which are to be included within the felony-murder category,[79] and the reduction to manslaughter of killings in the course of non-enumerated felonies.[80] The commentary following New York's revision of its felony-murder statute, deleting "any felony" and inserting specifically enumerated felonies, states: "The purpose of the indicated limitations is to exclude from felony murder, cases of accidental or not reasonably foreseeable fatality occurring in the course of a non-violent felony."[81] The limitation is a response to a significant aspect of the common-law felony-murder rule โ the fact that it ignores the relevance of factors, e.g., accident, which mitigate culpability.
Finally, a limitation of relatively recent origin is the availability of affirmative defenses where a defendant is not the only participant in the commission of the underlying felony. The New York statute provides, as do similar statutes of nine other states,[82] an affirmative defense to the defendant when he:
"(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
"(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not *707 ordinarily carried in public places by law-abiding persons; and
"(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
"(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury."[83]
The commentary to the New York statute states that the provision is premised "upon the theory that the felony-murder doctrine, in its rigid automatic envelopment of all participants in the underlying felony, may be unduly harsh * * *".[84] The comment acknowledges that there may be some cases where it would be "just and desirable to allow a non-killer defendant of relatively minor culpability a chance of extricating himself from liability for murder, though not, of course, from liability for the underlying felony".[85]
The numerous modifications and restrictions placed upon the common-law felony-murder doctrine by courts and legislatures reflect dissatisfaction with the harshness and injustice of the rule. Even though the felony-murder doctrine survives in this country, it bears increasingly less resemblance to the traditional felony-murder concept. To the extent that these modifications reduce the scope and significance of the common-law doctrine, they also call into question the continued existence of the doctrine itself.
*708 IV. THE REQUIREMENT OF INDIVIDUAL CULPABILITY FOR CRIMINAL RESPONSIBILITY
"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 * * *."[86]
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". People v Washington, 62 Cal 2d 777; 44 Cal Rptr 442; 402 P2d 130 (1965).
The felony-murder rule's most egregious violation of basic rules of culpability occurs where felony murder is categorized as first-degree murder. All other murders carrying equal punishment require a showing of premeditation, deliberation and willfulness while felony murder only requires a showing of intent to do the underlying felony. Although the purpose of our degree statutes is to punish more severely the more culpable forms of murder, People v Garcia, 398 Mich 250, 258; 247 NW2d 547 (1976), an accidental killing occurring *709 during the perpetration of a felony would be punished more severely than a second-degree murder requiring intent to kill, intent to cause great bodily harm, or wantonness and willfulness.[87] Furthermore, a defendant charged with felony murder is permitted to raise defenses only to the mental element of the felony, thus precluding certain defenses available to a defendant charged with premeditated murder who may raise defenses to the mental element of murder (e.g., self-defense, accident). Certainly, felony murder is no more reprehensible than premeditated murder.
LaFave & Scott explain the felony-murder doctrine's failure to account for a defendant's moral culpability as follows:
"The rationale of the doctrine is that one who commits a felony is a bad person with a bad state of mind, and he has caused a bad result, so that we should not worry too much about the fact that the fatal result he accomplished was quite different and a good deal worse than the bad result he intended. Yet it is a general principle of criminal law that one is not ordinarily criminally liable for bad results which differ greatly from intended results."[88]
Termed as a "somewhat primitive rationale"[89] it *710 is deserving of the observation made by one commentator that "the felony-murder doctrine gives rise to what can only be described as an emotional reaction, not one based on logical and abstract principles".[90]
Another writer states:
"It is an excuse based on the rough moral notion that a man who intentionally commits a felony must have a wicked heart, and therefore `ought to be punished' for the harm which he has done accidentally. It is to guard against this kind of reasoning that our modern rules of evidence exclude in most cases any communication to the jury of a prisoner's previous misdeeds."[91]
This Court has previously recognized this principle in a context analogous to the felony-murder situation:
"Every assault involves bodily harm. But any doctrine which would hold every assailant as a murderer where death follows his act, would be barbarous and unreasonable." Wellar v People, 30 Mich 16, 20 (1874).
While it is understandable that little compassion may be felt for the criminal whose innocent victim dies, this does not justify ignoring the principles underlying our system of criminal law. As Professor Hall argues in his treatise on criminal law:
"The underlying rationale of the felony-murder doctrine โ that the offender has shown himself to be a `bad actor,' and that this is enough to exclude the niceties *711 bearing on the gravity of the harm actually committed โ might have been defensible in early law. The survival of the felony-murder doctrine is a tribute to the tenacity of legal conceptions rooted in simple moral attitudes. For as long ago as 1771, the doctrine was severely criticized by Eden [Baron Auckland],[92] who felt that it `may be reconciled to the philosophy of slaves; but it is surely repugnant to that noble, and active confidence, which a free people ought to possess in the laws of their constitution, the rule of their actions.'"[93]
The United States Supreme Court has reaffirmed on several occasions the importance of the relationship between culpability and criminal liability.
"[T]he criminal law * * * is concerned not only with guilt or innocence in the abstract but also with the degree of criminal culpability." Mullaney v Wilbur, 421 US 684, 697-698; 95 S Ct 1881; 44 L Ed 2d 508 (1975).
"The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory `But I didn't mean to,' and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution." Morissette v United States, 342 US 246, 250-251; 72 S Ct 240; 96 L Ed 288 (1952).
"Whether a death results in the course of a felony (thus giving rise to felony-murder liability) turns on fortuitous events that do not distinguish the intention or moral culpability of the defendants." Lockett v Ohio, *712 438 US 586, 620; 98 S Ct 2954; 57 L Ed 2d 973 (1978) (Mr. Justice Marshall's concurring opinion).
The failure of the felony-murder rule to consider the defendant's moral culpability is explained by examining the state of the law at the time of the rule's inception. The concept of culpability was not an element of homicide at early common law.[94] The early definition of malice aforethought was vague. The concept meant little more than intentional wrongdoing with no other emphasis on intention except to exclude homicides that were committed by misadventure or in some otherwise pardonable manner.[95] Thus, under this early definition of malice aforethought, an intent to commit the felony would in itself constitute malice. Furthermore, as all felonies were punished alike, it made little difference whether the felon was hanged for the felony or for the death.[96]
Thus, the felony-murder rule did not broaden the concept of murder at the time of its origin because proof of the intention to commit a felony met the test of culpability based on the vague definition of malice aforethought governing at that time. Today, however, malice is a term of art. It does not include the nebulous definition of intentional wrongdoing. Thus, although the felony-murder rule did not broaden the definition of murder at early common law, it does so today. We find this enlargement of the scope of murder unacceptable, *713 because it is based on a concept of culpability which is "totally incongruous with the general principles of our jurisprudence"[97] today.
As Professor Hall observed in his treatise on criminal law:
"The modern tendency has been to oppose policy-formation such as that embodied in or extended from the felony-murder doctrine. It has insisted on a decent regard for the facts and on sanctions that represent fair evaluation of these facts and not of the supposed character of the offender. Most emphatically the progressive tendency has been to repudiate the imposition of severe penalties where bare chance results in an unsought harm."[98]
V. THE FELONY-MURDER DOCTRINE IN MICHIGAN
A. Murder and Malice Defined
In order to understand the operation of any state's felony-murder doctrine, initially it is essential to understand how that state defines murder and malice.
In Michigan, murder is not statutorily defined. This Court early defined the term as follows:
"Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in the peace of the state, with malice prepense or aforethought, either express or implied." People v Potter, 5 Mich 1 (1858). See, also, People v Scott, 6 Mich 287, 292 (1859); Maher v People, 10 Mich 212, 218 (1862); People v Garcia, 398 Mich 250, 258; 247 NW2d 547 (1976).
*714 Thus, malice aforethought is the "grand criterion"[99] which elevates a homicide, which may be innocent or criminal,[100] to murder. However, "[t]he nature of malice aforethought is the source of much of the confusion that attends the law of homicide". People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971), lv den 385 Mich 775 (1971). See, also, Moreland, Law of Homicide (Indianapolis: Bobbs-Merrill, 1952), pp 205-206. Overbroad and ill-considered instructions on malice have plagued appellate courts for decades. See, e.g., People v Morrin, supra; People v Borgetto, 99 Mich 336; 58 NW 328 (1894); Nye v People, 35 Mich 16 (1876).
We agree with the following analysis of murder and malice aforethought presented by LaFave & Scott:
"Though murder is frequently defined as the unlawful killing of another `living human being' with `malice aforethought', in modern times the latter phrase does not even approximate its literal meaning. Hence it is preferable not to rely upon that misleading expression for an understanding of murder but rather to consider the various types of murder (typed according to the mental element) which the common law came to recognize and which exist today in most jurisdictions:
"(1) intent-to-kill murder;
"(2) intent-to-do-serious-bodily-injury murder;
"(3) depraved-heart murder [wanton and willful disregard that the natural tendency of the defendant's behavior is to cause death or great bodily harm]; and
"(4) felony murder."[101]
*715 Under the common law, which we refer to in defining murder in this state, each of the four types of murder noted above has its own mental element which independently satisfies the requirement of malice aforethought.[102] It is, therefore, not necessary for the law to imply or for the jury to infer the intention to kill once the finder of fact determines the existence of any of the other three mental states because each one, by itself, constitutes the element of malice aforethought.[103]
Our focus in this opinion is upon the last category *716 of murder, i.e., felony murder. We do not believe the felony-murder doctrine, as some courts and commentators would suggest, abolishes the requirement of malice, nor do we believe that it equates the mens rea of the felony with the mens rea required for a non-felony murder.[104] We construe *717 the felony-murder doctrine as providing a separate definition of malice, thereby establishing a fourth category of murder. The effect of the doctrine is to recognize the intent to commit the underlying felony, in itself, as a sufficient mens rea for murder. This analysis of the felony-murder doctrine is consistent with the historical development of the doctrine.[105]
The question we address today is whether Michigan recognizes the felony-murder doctrine and, accordingly, the category of malice arising from the underlying felony. The relevant inquiry is first whether Michigan has a statutory felony-murder doctrine. If it does not, it must then be determined whether Michigan has or should have a common-law felony-murder doctrine.
B. Statutory Felony Murder
Michigan does not have a statutory felony-murder doctrine which designates as murder any death occurring in the course of a felony without regard to whether it was the result of accident, negligence, recklessness or willfulness. Rather, Michigan has a statute which makes a murder occurring in the course of one of the enumerated felonies a first-degree murder:
"Murder which is perpetrated by means of poison, lying in wait, or other wilful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct *718 in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life." MCL 750.316; MSA 28.548.
The Michigan Legislature adopted verbatim the first-degree murder statute of Pennsylvania, the statute we have today.[106] In creating the statutes which divided murder into degrees, it was the intention of the Pennsylvania Legislature to reform the penal laws of that state by making punishment more proportionate to the crime and, in particular, to narrow the category of capital offenses. It was not its apparent intention to adopt by statute the common-law felony-murder rule. The provision covering murder in the course of the enumerated felonies was added when the bill creating the degree statutes was being debated on second reading by a motion on the floor.[107] In Commonwealth ex rel Smith v Myers, supra, 224, the Pennsylvania Supreme Court stated:
"Clearly this statutory felony-murder rule merely serves to raise the degree of certain murders to first degree; it gives no aid to the determination of what constitutes murder in the first place."
*719 Michigan case law also makes it clear that the purpose of our first-degree murder statute is to graduate punishment and that the statute only serves to raise an already established murder to the first-degree level, not to transform a death, without more, into a murder.
"The statute does not undertake to define the crime of murder, but only to distinguish it into two degrees, for the purpose of graduating the punishment." People v Doe, 1 Mich 451, 457 (1850). See, also, People v Samuel Scott, supra, 293.
"It speaks of the offense as one already ascertained and defined, and divides it into degrees * * *." People v Potter, supra, 6 (emphasis added).
"Neither murder nor manslaughter is defined in our statutes. The [first-degree murder statute] simply classifies a murder perpetrated in a particular manner as murder in the first degree. It has no application until a murder has been established." People v Charles Austin, 221 Mich 635, 644; 192 NW 590 (1923) (emphasis added).
Examples of decisions from other states which have murder statutes identical or similar to Michigan's first-degree murder statute in that they also use the term "murder" and which have concluded that the statute is merely a degree-raising device include the following: Commonwealth ex rel Smith v Myers, supra; Commonwealth v Exler, 243 Pa 155; 89 A 968 (1914); State v Millette, supra; Warren v State, 29 Md App 560, 565; 350 A2d 173, 178 (1976); Evans v State, 28 Md App 640; 349 A2d 300 (1975), aff'd 278 Md 197; 362 A2d 629 (1976); State v Additional Information