CLECKLEY, Justice:

The defendant, Dale Edward Guthrie, appeals the January, 1994, jury verdict of the Circuit Court of Kanawha County, finding him guilty of first degree murder. In May of 1994, the defendant was sentenced to serve a life sentence with a recommendation of mercy. The defendant cites as error several instructions given to the jury and improper questions and comments made by the prosecutor. Cumulative error is asserted. He also contends there is insufficient evidence to support the verdict.

I.

FACTS AND PROCEDURAL BACKGROUND

It is undisputed that on the evening of February 12, 1993, the defendant removed a knife from his pocket and stabbed his coworker, Steven Todd Farley, in the neck and killed him. The two men worked together as dishwashers at Danny’s Rib House in Nitro and got along well together before this incident. On the night of the killing, the victim, his brother, Tracy Farley, and James Gibson were joking around while working in the kitchen of the restaurant. The victim was poking fun at the defendant who appeared to be in a bad mood. He told the defendant to “lighten up” and snapped him with a dishtowel several times. Apparently, the victim had no idea he was upsetting the defendant very much. The dishtowel flipped the defendant on the nose and he became enraged.

The defendant removed his gloves and started toward the victim. Mr. Farley, still teasing, said: “Ooo, he’s taking his gloves off.” The defendant then pulled a knife from his pocket and stabbed the victim in the neck. He also stabbed Mr. Farley in the arm as he fell to the floor. Mr. Farley looked up and cried: “Man, I was just kidding around.” The defendant responded: “Well, man, you should have never hit me in my face ” The police arrived at the restaurant and arrested the defendant. He was given his Miranda rights. The defendant made a statement at the police station and confessed to the killing.1 The police officers *666described him as calm ¿nd willing to cooperate.

It is also undisputed that the defendant suffers from a host of psychiatric problems. He experiences up to two panic attacks daily and had received treatment for them at the Veterans Administration Hospital in Huntington for more than a year preceding the killing. He suffers from chronic depression (dysthymic disorder), an obsession with his nose (body dysmorphic disorder), and borderline personality disorder. The defendant’s father shed some light on his nose fixation. He stated that dozens of times a day the defendant stared in the mirror and turned his head back and forth to look at his nose. His father estimated that 50 percent of the time he observed his son he was looking at his nose. The defendant repeatedly asked for assurances that his nose was not too big. This obsession began when he was approximately seventeen years old. The defendant was twenty-nine years old at the time of trial.

The defendant testified he suffered a panic attack immediately preceding the stabbing. He described the attack as “intense”; he felt a lot of pressure and his heart beat rapidly. In contrast to the boisterous atmosphere in the kitchen that evening, the defendant was quiet and kept to himself. He stated that Mr. Farley kept irritating him that night. The defendant could not understand why Mr. Farley was picking on him because he had never done that before. Even at trial, the defendant did not comprehend his utter overreaction to the situation. In hindsight, the defendant believed the better decision would have been to punch out on his time card and quit over the incident. However, all the witnesses related that the defendant was in no way attacked, as he perceived it, but that Mr. Farley was playing around. The defendant could not bring himself to tell the other workers to leave him alone or inform them about his panic attacks.

In contrast to his written statement, the defendant testified he was unable to recall stabbing the victim. After he was struck in the nose, he stated that he “lost it” and, when he came to himself, he was holding the knife in his hand and Mr. Farley was sinking to the floor.

A psychiatrist, Dr. Sidney Lerfald, testified on behalf of the defendant. He diagnosed the various disorders discussed above. Dr. Lerfald felt the defendant’s diagnoses “may have affected his perception somewhat.” Nevertheless, it was his opinion the defendant was sane at the time of the offense because he was able to distinguish between right and wrong and could have conformed his actions accordingly.

It was the State’s position that the facts supported a first degree murder conviction. At the close of the State’s case-in-chief, the defense moved for a directed verdict contending the State failed to present evidence of malice and premeditation. This motion was denied. The defense argued the facts of the case supported voluntary manslaughter or, at worse, second degree murder. The jury returned a verdict finding the defendant guilty of first degree murder with a recommendation of mercy.

II.

DISCUSSION

In his appeal, the defendant raises several assignments of error: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in giving instructions covering first degree murder; (3) whether the trial court erred in refusing to give defendant’s instruction on circumstantial evidence; (4) whether the trial court erred in permitting the prosecution to argue the penalties of each lesser-ineluded offense; (5) whether the trial court erred in permitting the prosecution to inject irrelevant evidence of racial, gender, and political prejudices in the case; and (6) whether reversal is required under the cumulative error rule. At the outset, we find some of the errors asserted by the defendant are without merit. Therefore, our review of this case will be limited to the three areas discussed below.

*667A.

Sufficiency of the Evidence

First, the defendant strives to persuade us that the record in this case does not support the verdict of guilty of first degree murder beyond a reasonable doubt. Because this exhortation challenges the sufficiency of evidence to support a jury’s verdict, our authority to review is limited.

We have not addressed the criminal standard of review concerning the sufficiency of evidence since 1978. Syllabus Point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), states our rule with respect to such a claim:

“In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state’s evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.”

A year after Starkey was decided, the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),2 articulated, at least linguistically, a different standard of review under the United States Constitution.3 In a sufficiency of the evidence claim under Jackson, an appellate court, while reviewing the record in the light most favorable to the prosecution, must determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. (Emphasis in original).

After contrasting Starkey and its progeny with the standard of review announced in Jackson, we believe it is desirable to reconcile our differences and to adopt the federal standard of review both as to Jackson generally and as to the standard of review in circumstantial evidence cases.4 By doing so, however, we continue a highly deferential approach: Appellate courts can reverse only if no rational jury could have found the defendant guilty beyond a reasonable doubt.5 This standard is a strict one; a *668defendant must meet a heavy burden to gain reversal because a jury verdict will not be overturned lightly.

Under the Jackson standard, when reviewing a conviction, we may accept any adequate evidence, including circumstantial evidence, as support for the conviction. It is possible that we, as an appellate court, may have reached a different result if we had sat as jurors. However, under Jackson, it does not matter how we might have interpreted or weighed the evidence. Our function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant’s guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.

In adopting Jackson, we necessarily overturn our long established rule that when the State relies upon circumstantial evidence, in whole or in part, for a court to sustain the verdict all other reasonable hypotheses need be excluded by the prosecution save that of guilt. In State v. Noe, 160 W.Va. 10, 15, 230 S.E.2d 826, 829-30 (1976), we stated:

“[CJircumstantial evidence will not support a guilty verdict unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create a mere suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction.”

State v. Robinette, 181 W.Va. 400, 383 S.E.2d 32 (1989); State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979). In State v. Frasher, 164 W.Va. 572, 265 S.E.2d 43 (1980), however, we recognized the application of this rule is limited to cases where the State relied wholly upon circumstantial evidence. See Syl. pt. 3, State v. McHenry, 93 W.Va. 396, 117 S.E. 143 (1923).

However, under Jackson, the mere existence of other reasonable hypotheses is not enough to reverse a jury verdict. This new circumstantial evidence rule that we adopt today originated in Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150, 166 (1954), where the United States Supreme Court stated:

“The petitioners assail the refusal of the trial judge to instruct that where the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other that that of guilt. There is some support for this type of instruction in the lower court decisions, ... but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect....

“Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some ease point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.” (Citations omitted).

The circumstantial evidence rule of Holland was reaffirmed in Jackson:

“Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner’s challenge be sustained. That theory the Court has rejected in the past.... We decline to adopt it today.” 443 U.S. at 326, 99 S.Ct. at 2792-2793, 61 L.Ed.2d at 578. (Citation omitted).

Facing the same dilemma, the Supreme Court of Ohio also abandoned the requirement that in circumstantial evidence cases the prosecution’s evidence need exclude all other reasonable hypotheses of innocence. In State v. Jenks, 61 Ohio St.3d 259, 272, 574 *669N.E.2d 492, 502 (1991),6 relying on the language in Holland, the Ohio court stated:

“Circumstantial evidence and direct evidence inherently possess the same probative value. In some instances certain facts can only be established by circumstantial evidence. Hence, we can discern no reason to continue the requirement that circumstantial evidence must be irreconcilable with any reasonable theory of an accused’s innocence in order to support a finding of guilt. We agree with those courts that have held that an additional instruction on the sufficiency of circumstantial evidence invites confusion and is unwarranted. Since circumstantial evidence and direct evidence are indistinguishable so far as the jury’s fact-finding function is concerned, all that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt. Nothing more should be required of a factfinder.”

These precedents illuminate our path. We find the logic and analysis of Holland and Jenks to be forceful. Therefore, we hold there should be only one standard of proof in criminal cases and that is proof beyond a reasonable doubt. We start along this route by acknowledging that there is no qualitative difference between direct and circumstantial evidence.7 Thus, it follows a fortiori that once a proper instruction is given advising the jury as to the State’s heavy burden under the guilt beyond a reasonable doubt standard, an additional instruction on circumstantial evidence is no longer required even if the State relies wholly on circumstantial evidence.8

In summary, a criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. As we have cautioned before, appellate review is not a device for this Court to replace a jury’s finding with our own conclusion. On review, we will not weigh evidence or determine credibility.9 Credibility determinations are for a jury and not an appellate court. On appeal, we will not disturb a verdict in a criminal case unless we find that reasonable minds could not have reached the same conclusion. Finally, a jury verdict should be set aside only when the record contains no evi*670dence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent with our decision announced today, they are expressly overruled. With the scope of our review thus defined, we move to the defendant’s claims.

We begin by emphasizing that our review is conducted from a cold appellate transcript and record. For that reason, we must assume that the jury credited all witnesses whose testimony supports the verdict. The essential facts of this case — those that the jury was unquestionably entitled to find — are rather simple: The defendant became irritated with the “horseplay” of the victim; when the victim in jest hit the defendant with a wet dishtowel on his nose, the defendant became angry and drew a four-inch-long lock blade knife from his pocket and stabbed the victim fatally in the neck. After the defendant was confronted with his deed, he made a statement that could be interpreted to mean he was not remorseful but, to the contrary, was unconcerned about the welfare of the victim.10 In addition to the jury hearing testimony from eyewitnesses to the killing, the defendant confessed.

There is no doubt what inferences and findings of fact the jury had to draw in order to convict the defendant of first degree murder. The jury must have believed that: (1) The “horseplay” provocation was not sufficient to justify a deadly attack; (2) the defendant was under no real fear of his own from being attacked; (3) the stabbing was intentional; and (4) the time it took the defendant to open his knife and inflict the mortal wound was sufficient to establish premeditation.11

The difficult factual question must have been the mental state of the defendant at the time of the stabbing. The evidence was somewhat conflicting on this point. While the evidence offered by the defendant is not impossible to believe, some of his explanations seem unlikely. Guilt beyond a reasonable doubt cannot be premised on pure conjecture. However, a conjecture consistent with the evidence becomes less and less conjecture and moves gradually toward proof, as alternative innocent explanations are discarded or made less likely. The beyond a reasonable doubt standard does not require the exclusion of every other hypothesis or, for that matter, every other reasonable hypothesis. It is enough if, after considering all the evidence, direct and circumstantial, a reasonable trier of fact could find the evidence established guilt beyond a reasonable doubt.

After reviewing the record, this Court has some doubt as to whether this is a first degree murder case; but, at this point, Jackson’s own objective standard turns against the defendant. It makes absolutely no difference whether we on the appellate bench as jurors would have voted to convict the defendant of a lesser-included offense or whether we would have thought there was some reasonable doubt. To the contrary, the question posed by Jackson is whether any rational jury could on the evidence presented think the defendant premeditated and intentionally killed the victim. We do not find the evidence so weak as to render the verdict irrational. A rational jury may well have found the defendant guilty of some lesser-included crime without violating its oath; but, drawing all favorable inferences in favor of the prosecution, a rational jury could also convict. We end by suggesting that varia*671tions in human experience suggest it is not unexpected to see a considerable range of reasonable verdicts or estimates about what is likely or unlikely. Thus, we find the evidence sufficient under either the Jackson or the Starkey standard.

B.

Jury Instructions

The principal question before us under this assignment of error is whether our instructions on murder when given together deprive a criminal defendant of due process or are otherwise wrong and confusing. Because the instructions given in this case conform to what we have already approved in this area, the essence of what the defendant asks us to decide is whether our previously approved instructions in first degree murder cases are legally correct. In concluding his presentation, the defendant asks us “to write an opinion which clearly and specifically defines (1) the term wilful, (2) the term deliberate, and (3) the term premeditated.”

The jury was charged in this case on the offenses of first and second degree murder and the lesser-included offenses of voluntary and involuntary manslaughter. These instructions were consistent with the law developed in past decisions. The defendant virtually concedes there is no available affirmative defense, other than an argument for the lesser-included offense of voluntary manslaughter. Because of the unavailability of self-defense or insanity, the defendant contends “the precise definitions of these terms is [sic] critical.” We will review the various arguments of the defendant in turn.

1. Standard of Review

The extent of the grounds for defense counsel’s objection to the challenged instructions is not entirely clear from the record. The objection could be construed as a challenge to the trial court’s inclusion of certain instructions as a matter of law. Alternatively, the objection could be read as a challenge merely to the confusing nature of the instructions. The basis of the objection determines the appropriate standard of review.12 Giving the defendant the benefit of the doubt, we will consider the issue first as a review of the legal propriety of the instructions. In this light, if an objection to a jury instruction is a challenge to a trial court’s statement of the legal standard, this Court will exercise de novo review.13 More recently, we stated in State v. Bradshaw, 193 W.Va. 519, 543, 457 S.E.2d 456, 480 (1995):

“The court’s instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. The trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to the [trial] court’s discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.”

Under Bradshaw, when an objection to a jury instruction involves the trial court’s expression and formulation of the jury charge, this Court will review under an abuse of discretion standard. Therefore, we review jury instructions to determine whether, tak*672en as a whole and in light of the evidence, they mislead the jury or state the law incorrectly to the prejudice of the objecting party.14 So long as they do not, we review the formulation of the instructions and the choice of language for an abuse of discretion. We will reverse only if the instructions are incorrect as a matter of law or capable of confusing and thereby misleading the jury.

2. Adequacy of Jury Instructions as to the Elements of First Degree Murder

The purpose of instructing the jury is to focus its attention on the essential issues of the ease and inform it of the permissible ways in which these issues may be resolved. If instructions are properly delivered, they succinctly and clearly will inform the jury of the vital role it plays and the decisions it must make. As we said in note 20 of State v. Miller, 194 W.Va. at 16, 459 S.E.2d at 127 (1995) “Without [adequate] instructions as to the law, the jury becomes mired in a factual morass, unable to draw the appropriate legal conclusions based on the facts.”15 This is, in essence, what the defendant argues in this case, i.e., the instructions were inadequate and failed to inform the jury of the difference between first and second degree murder.16 More precisely, the defendant asserts the trial court’s instructions regarding the elements of first degree murder were improper because the terms wilful, deliberate, and premeditated were equated with a mere intent to kill.17

The jury was instructed that in order to find the defendant guilty of murder it had to find five elements beyond a reasonable doubt: “The Court further instructs the jury that murder in the first degree is when one person kills another person unlawfully, willfully, maliciously, deliberately and premedi-tatedly[.]”18 In its effort to define these terms, the trial court gave three instructions.19 State’s Instruction No. 8, commonly referred to as the Clifford, instruction, stated:

“The Court instructs the jury that to constitute a willful, deliberate and premeditated killing, it is not necessary that the intention to kill should exist for any particular length of time prior to the actual killing; it is only necessary that such intention should have come into existence for the first time at the time of such killing, or at any time previously.”

See State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906). State’s Instruction No. 10 stated: *673“The Court instructs the jury that in order to constitute a ‘premeditated’ murder an intent to kill need exist only for an instant.” State’s Instruction No. 12 stated: “The Court instructs the jury that what is meant by the language willful, deliberate and premeditated is that the killing be intentional.” State’s Instruction Nos. 10 and 12 are commonly referred to as Schrader instructions. See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982).

The linchpin of the problems that flow from these instructions is the failure adequately to inform the jury of the difference between first and second degree murder. Of particular concern is the lack of guidance to the juiy as to what constitutes premeditation and the manner in which the instructions infuse premeditation with the intent to kill.

At common law, murder was defined as the unlawful killing of another human being with “malice aforethought.” Because the common law definition of “malice aforethought” was extremely flexible, “it became over time an ‘arbitrary symbol’ used by trial judges to signify any of the number of mental states deemed sufficient to support liability for murder.” John S. Baker, Jr., Daniel H. Benson, Robert Force, & B.J. George, Jr., Hall’s Criminal Law 268-69 (5th ed. 1993). Nevertheless, most American jurisdictions maintained a law of murder built around common law classifications. Pertinent to this case, the most significant departure from the common law came on April 22, 1794, when the Pennsylvania Legislature enacted a statute dividing murder into degrees.20 It decreed that the death penalty would be inflicted only for first degree murder. West Virginia, like most other states, followed the Pennsylvania practice. Indeed, the 1794 Pennsylvania statute is nearly identical to W.Va.Code, 61-2-1 (1991), our murder statute.21

The West Virginia Legislature chose not to define the term “premeditated” in W.Va. Code, 61-2-1. As a result, this Court consistently has resorted to the common law. See State v. Clifford, supra. See also State v. Belcher, 161 W.Va. 660, 245 S.E.2d 161 (1978); State v. Shaffer, 138 W.Va. 197, 75 S.E.2d 217 (1953); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950); State v. Burdette, 135 W.Va. 312, 63 S.E.2d 69 (1950); State v. Porter, 98 W.Va. 390, 127 S.E. 386 (1925); State v. Wilson, 95 W.Va. 525, 121 S.E. 726 (1924).

In addition to Clifford, there are several cases that have made specific attempts to further define premeditation. In State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903), we said:

“ ‘The next ingredient of the crime is that it must be deliberate. To deliberate is to reflect, with a view to make a choice. If a person reflects, though but for a moment before he acts, it is unquestionably a sufficient deliberation within the meaning of the statute. The last requisite is that the killing must be premeditated. To premeditate is to think of a matter before it is executed. The word, premeditated, would seem to imply something more than deliberate, and may mean that the party not only deliberated, but had formed in his mind the plan of destruction.’ ” (Emphasis added to last sentence).

In State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982), we made an effort to distinguish the degrees of murder by indicating that the elements that separate first degree murder and second degree murder are deliberation and premeditation in addition to *674the formation of the specific intent to kill. Deliberation and premeditation mean to reflect upon the intent to kill and make a deliberate choice to carry it out. Although no particular amount of time is required, there must be at least a sufficient period to permit the accused to actually consider in his or her mind the plan to kill. In this sense, murder in the first degree is a calculated killing as opposed to a spontaneous event. After noting the above language in Dodds, Justice Miller stated in Hatfield:

“The terms ‘deliberate’ and ‘premeditated’ have not often been defined in our cases but do carry a certain degree of definitional overlap. This point is made in LaFave & Scott, Criminal Law § 73, at 563 (1972 ed.):

“ ‘To be guilty of this form of first degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words “premeditate” and “deliberate” as they are used in connection with first degree murder. Perhaps the best that can be said of “deliberation” is that it requires a cool mind that is capable of reflection, and of “premeditation” that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.’ (Footnotes omitted)

“But, as LaFave & Scott also point out: ‘The intention may be finally formed only as a conclusion of prior premeditation and deliberation.’ Id.” 169 W.Va. at 200-01, 286 S.E.2d at 409.

Although we approved the jury instruction from Clifford that “it is only necessary that the intention to kill should have come into existence for the first time at the time of the killing” in Hatfield, Justice Miller explained this instruction was merely intended to convey the notion that it is possible for deliberation and premeditation to precede the formation of the actual intent to kill. Justice Miller further stated:

“Here, the Clifford instruction refers primarily to the intention to kill not existing for any particular time and arising at the moment of the killing. This means the specific intent to kill and is to be distinguished from the elements of deliberation and premeditation which are the state of mind conveying the characteristics of reflection.” 169 W.Va. at 201, 286 S.E.2d at 409.

This is the meaning of the so-called Clifford instruction and, when it is given, its significance should be explained to the jury.

The source of the problem in the present case stems from language in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982). While this Court elaborated on the meaning of premeditation, we gave it a different definition than that approved in Hatfield and Dodds. In Schrader, we stated:

“Hence, when the West Virginia Legislature adopted the Virginia murder statute in 1868, the meaning of ‘premeditated’ as used in the statute was essentially ‘knowing’ and ‘intentional.’ Since then, courts have consistently recognized that the mental process necessary to constitute “willful, deliberate and premeditated’ murder can be accomplished very quickly or even in the proverbial ‘twinkling of an eye.’ ... The achievement of a mental state contemplated in a statute such as ours can immediately precede the act of killing. Hence, what is really meant by the language ‘willful, deliberate and premeditated’ in W.Va. Code, 61-2-1 [192S] is that the killing be intentional.” 172 W.Va. at 6, 302 S.E.2d at 75. (Emphasis added).

The language emphasized above supplied the legal authority and basis for State’s Instruction Nos. 10 and 12.

While many jurisdictions do not favor the distinction between first and second degree murder,22 given the doctrine of separation of *675powers, we do not have the judicial prerogative to abolish the distinction between first and second degree murder and rewrite the law of homicide for West Virginia; unless, of course, we were to declare this classification a violation of due process and force the Legislature to rewrite the law — a bold stroke that we refuse to do. On the other hand, we believe within the parameters of our current homicide statutes the Schrader definition of premeditation and deliberation is confusing, if not meaningless. To allow the State to prove premeditation and deliberation by only showing that the intention came “into existence for the first time at the time of such killing” completely eliminates the distinction between the two degrees of murder. Hence, we feel compelled in this case to attempt to make the dichotomy meaningful by making some modifications to our homicide common law.

Premeditation and deliberation should be defined in a more careful, but still general way to give juries both guidance and reasonable discretion. Although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. As suggested by the dissenting opinion in Green v. State, 1 Tenn.Crim.App. 719, 735, 450 S.W.2d 27, 34 (1970): “True, it is not necessary to prove premeditation existed for any definite period of time. But it is necessary to prove that it did exist.” This means there must be an opportunity for some reflection on the intention to kill after it is formed. The accused must kill purposely after contemplating the intent to kill. Although an elaborate plan or scheme to take te is not required, our Schrader’s notion of instantaneous premeditation and momentary deliberation is not satisfactory for proof of first degree murder. In Bullock v. United States, 74 App.D.C. 220, 221, 122 F.2d 213, 214 (1941), cert. denied, 317 U.S. 627, 63 S.Ct. 39, 87 L.Ed. 507 (1942), the court discussed the need to have some appreciable time elapse between the intent to kill and the killing:

“To speak of premeditation and deliberation which are instantaneous, or which take no appreciable time, is a contradiction in terms. It deprives the statutory requirement of all meaning and destroys the statutory distinction between first and second degree murder. At common law there were no degrees of murder. If the accused had no overwhelming provocation to kill, he was equally guilty whether he carried out his murderous intent at once or after mature reflection. Statutes like ours, 'which distinguish deliberate and premeditated murder from other murder, reflect a belief that one who meditates an intent to kill and then deliberately executes it is more dangerous, more culpable or less capable of reformation than one who kills on sudden impulse; or that the prospect of the death penalty is more likely to deter men from deliberate than from impulsive murder. The deliberate killer is guilty of first degree murder; the impulsive killer is not. The quoted part of the charge was therefore erroneous.”

Thus, there must be some evidence that the defendant considered and weighed his decision to kill in order for the State to establish premeditation and deliberation under our first degree murder statute.23 This is what *676is meant by a ruthless, cold-blooded, calculating killing. Any other intentional killing, by its spontaneous and nonreflective nature, is second degree murder.24

We are asked to overrule the language appearing in Schrader, as reflected in State’s Instruction No. 8 and, particularly, the language of State’s Instruction Nos. 10 and 12, so that there might be some clarity and coherence to the law of homicide. We naturally are reluctant to overrule prior decisions of this Court. No court likes to acknowledge a mistake, and adherence to precedent is based on deeper reasons than amour propre; rather, it is in fact a cornerstone of Anglo-American adjudication. Additionally, the more recent a precedent, the more authoritative it is because there is less likelihood of significantly changed circumstances that would provide a “special justification” for reassessing the soundness of the precedent. Nevertheless, the circumstances of this case are different, and we agree with the defendant that the language in our opinion in Schrader virtually eliminates the distinction in this State between first and second degree murder, equating as it does premeditation with the formation of the intent to kill. We have tried to clarify the difference between the degrees of murder in the preceding paragraphs. We find that Schrader wrongly equated premeditation with intent to kill and in so doing undermined the more meaningful language of Hatfield and Dodds. To the extent that the Schrader opinion is inconsistent with our holding today, it is overruled. In overruling Schrader, we do not take lightly the policy underlying stare decisis. However, we believe:

“Remaining true to an ‘intrinsically sounder’ doctrine established in prior cases better serves the values of stare decisis than would following a more recently decided case inconsistent with the decisions that came before it; the latter course would simply compound the recent error and would likely make the unjustified break from previously established doctrine complete. In such a situation ‘special justification’ exists to depart from the recently decided ease.” Adarand Constr., Inc. v. Pena, — U.S.-, -, 115 S.Ct. 2097, 2115, 132 L.Ed.2d 158, 185 (1995).

Overturning precedent with a long standing in the law that has become an integrated fabric in the law is different. Therefore, we leave in tact the Clifford rule as amplified by Hatfield. So by refusing to follow Schrader but continuing Clifford and Hatfield, “we do not depart from the fabric of the law; we restore it.” Adarand Constructors, Inc. v. Pena, — U.S. at -, 115 S.Ct. at 2116, 132 L.Ed.2d at -.

Finally, we feel obligated to discuss what instruction defining premeditation is now acceptable. What came about as a mere suggestion in Hatfield, we now approve as a proper instruction under today’s decision. Note 7 of Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410, states:

“A more appropriate instruction for first degree murder, paraphrased from 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214, is:

“ ‘The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he *677intended, is sufficient to support a conviction for first degree murder.’”

Having approved a new instruction in the area of homicide law, we do not believe today’s decision should be applied retroactively. Applying the test articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a “new rule” should not be given retroactive effect. More precisely, the rules we announce are “not dictated by precedent existing at the time” of our opinion. Gilmore v. Taylor, — U.S. -, -, 113 S.Ct. 2112, 2116, 124 L.Ed.2d 306, 316 (1993), quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349. (Emphasis in original). Nevertheless, we need not apply the “new rule” to the defendant’s case on this appeal because this case is being reversed on other grounds. The defendant is entitled, however, to the benefit of this decision on remand.

As a more general matter, the failure to follow precisely what we are now prescribing could, under certain circumstances, be harmless error. We note that the trial court continuously reinforced the notions that the burden of proof in a criminal case is always upon the prosecution; that the defendant is protected by a presumption of innocence; and that, unless he is proven guilty beyond a reasonable doubt, the defendant must be acquitted. In addition, the trial court instructed the jury to consider the charge as whole rather than singling out any one instruction. These actions reinforce our belief that it is unlikely the defendant was prejudiced to the point of reversible error.

C.

Misconduct of the Prosecuting Attorney [33,34] We turn next to the defendant’s argument that the prosecutor prejudiced his right to a fair trial when he was permitted to argue the penalties of the different offenses and to cross-examine the defendant’s father on the defendant’s racial and gender biases and his political beliefs. Because we conclude the prosecutor’s remarks and his cross-examination were improper, we also will go on to weigh the error under our harmless error standard. We look at each of the defendant’s contentions separately because our review for harmless error is fact specific.25 See McDougal v. McCammon, 193 W.Va. 229, 239, 465 S.E.2d 788, 798 (1995).

1. Disclosing the Possible Penalties

During the rebuttal portion of closing arguments, the prosecuting attorney informed the jury that the punishment for second degree murder is five to eighteen years imprisonment; a voluntary manslaughter conviction carries a punishment of one to five years in the penitentiary; and involuntary manslaughter could lead to imprisonment for up to a year. He also told the jury that should the defendant be convicted of first degree murder, he would be eligible for parole in ten years, but he would not necessarily receive parole at that time. Defense counsel’s timely objection to these comments was overruled.

The defendant asserts that such practice rises to the level of constitutional error because the jury may have determined the degree of homicide by what it believed the appropriate punishment to be. The State contends the prosecuting attorney may inform the jury of the applicable penalties for the possible convictions as long as a correct statement of the law is made.

Both parties to this appeal seem to acknowledge that our cases are not entirely *678consistent in reference to the relevance of penalty evidence and penalty comment during closing arguments. We believe our prior rulings can be placed into two broad categories. The first category concerns cases involving a recommendation of mercy. We have said, for example, in first degree murder cases, it is the mandatory duty of the trial court to instruct the jury that it may add a recommendation of mercy to such verdict and to explain to the jury the legal implications of such a recommendation. To this extent, a prosecuting attorney is permitted to comment on the significance of this recommendation and to make appropriate argument against such a recommendation. However, even here, we limit the scope of the permissible argument: The prosecuting attorney cannot argue that a recommendation of mercy would enable the defendant to receive parole in ten years. State v. Lindsey, 160 W.Va. 284, 233 S.E.2d 734 (1977). Nor have we authorized the prosecutor to argue beyond the first degree murder penalties. Of course, in the ease sub judice, the prosecuting attorney did not violate this rule in that he stated the defendant may be eligible for parole in ten years should he be convicted of first degree murder with a recommendation of mercy. In fact, the jury was properly instructed by State’s Instruction No. 11 that stated, in part:

“[F]irst degree [murder] is punishable by confinement in the penitentiary of this state for life and the accused shall not be eligible for parole except and unless the jury shall add its recommendation of mercy in their verdict and if such recommendation is added to their verdict, such person shall then be eligible for consideration for parole after serving a minimum of ten years of such sentence, such eligibility in no way guaranteeing immediate release.”

The second category concerns the mentioning of penalties in cases other than those involving recommendations of mercy. The issue we must address is whether the prosecuting attorney may inform the jury of the appropriate penalties for convictions when, as in this ease, the jury must choose between varying degrees of an offense. Our cases generally hold that such penalty information is irrelevant. Directly addressing the issue in State v. Parks, 161 W.Va. 511, 516, 243 S.E.2d 848, 852 (1978), we stated that placing sentencing matters before the jury is “an issue prejudicial to the fact-finding function of the jury.” The right to fix punishment rests exclusively within the discretion of the trial court, and neither party has the right outside of “capital” cases to have the jury informed of the possible penalties. See generally State v. Massey, 178 W.Va. 427, 432 n. 2, 359 S.E.2d 865, 870 n. 2 (1987). This is so because a jury is not permitted to concern itself with sentencing matters outside of a recommendation of mercy. See State v. Lindsey, supra (jury should not concern itself with irrelevant matters such as parole); State v. Loveless, 139 W.Va. 454, 80 S.E.2d 442 (1954). Therefore, we hold that outside the context of eases involving a recommendation of mercy, it is improper for either party to refer to the sentencing possibilities of the trial court should certain verdicts be found or to refer to the ability of the trial court to place a defendant on probation.26 See U.S. v. Meredith, 824 F.2d 1418, 1429 (4th Cir.), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987) and 485 U.S. 991, 108 S.Ct. 1297, 99 L.Ed.2d 507 (1988).

The universal rule is that punishment is the trial court’s role and is not a proper matter for the jury. The jury’s sole function in a criminal case is to pass on whether a defendant is guilty as charged based on the evidence presented at trial and the law as given by the jury instructions. See Chambers v. State, 337 Md. 44, 650 A.2d 727 (1994). The applicable punishments for the lesser-included offenses are not elements of the crime; therefore, the question of what punishment the defendant could receive if convicted is not a proper matter for closing argument. See Rowe v. Indiana, 250 Ind. 547, 237 N.E.2d 576 (1968).27

*679Both parties cite State v. Myers, 159 W.Va. 353, 222 S.E.2d 300 (1976), where we stated it was not error for the prosecuting attorney to say the defendant could be eligible for parole after five years if convicted of second degree murder. The State relies heavily‘upon Myers, at least to the extent that it creates a vacillation in our decisions. We do not find that Myers is persuasive authority to support the arguments of the State.28

We believe that any substantial reliance on Myers is misplaced. First, it appears that the language used in Myers was nothing but a means of distinguishing between what the Court considered the least offensive as opposed to the more egregious remark:

“In view of the fact that this Court finds no error in an instruction which embodies in statutory language the penalties which will be imposed by law for the various offenses of which a defendant may be found guilty, such ruling by the trial court was probably technically correct. The same cannot be said with reference to the court’s treatment of the Prosecutor’s remark:

“When they talk about keeping somebody in Weston Hospital or even at the V.A., we know they get out right and left.’ ”

159 W.Va. at 362, 222 S.E.2d at 306.

The bottom line is that the conviction in Myers was reversed because the prosecuting attorney argued matters to the jury that were irrelevant for its consideration.29 In short, we believe that the Court’s discussion on this point in Myers was purely an anomaly. It is doubtful the Court would have reached this same conclusion had that issue alone been its focus, and we refuse to do so here.

Likewise, Standard 3-5.8(d) of the American Bar Association Standards for Criminal Justice (2nd ed. 1980) explains: “The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.” Standard 3-5.9 further advises: “It is unprofessional conduct for the prosecutor to intentionally to refer to or argue on the basis of facts outside the record.”

It is quite obvious that the prosecution improperly injected “issues broader than the guilt or innocence” of the defendant and argued “facts outside the record.” To do either is improper and, to the extent the decision in Myers is inconsistent with our holding, it is expressly overruled. To rule otherwise would permit a jury to base its finding as to the degree of guilt on irrelevant factors.

2. Questions Relating to the Defendant’s Prejudices

During the cross-examination of the defendant’s father, the prosecuting attorney inquired about prejudicial statements allegedly made by the defendant. Bobby Lee Guthrie was asked if the defendant told him that men were better than women and women should stay at home, that whites were better than blacks, and whether the two of them discussed the Ku Klux Klan. Defense counsel objected to this line of questioning because of its highly prejudicial effect, particularly with *680the women on the jury and the one African-American juror.

The State asserted it was proper cross-examination because the defense opened the door when it portrayed the defendant as a good, quiet, Bible-reading man when, in fact, he had made some bigoted comments to the State’s psychiatrist, Dr. Ralph Smith.30 The State also argues the defendant was not prejudiced by these few questions concerning his views because Dr. Smith was not called as a witness and this issue was not raised further.31 Nevertheless, a curative instruction was not requested by either party and none was given.

Although most rulings of a trial court regarding the admission of evidence are reviewed under an abuse of discretion standard, see McDougal v. McCammon, supra, an appellate court reviews de novo the legal analysis underlying a trial court’s decision. See Hottle v. Beech Aircraft Corp., 47 F.3d 106 (4th Cir.1995). A trial court’s discretion is not unbounded, and the scope of the trial court’s discretion varies according to the issue before it. In considering the ad*681missibility of impeachment evidence, we apply the same standards of relevance that we apply to other questions of admissibility.

Appellate courts give strict scrutiny to cases involving the alleged wrongful injection of race, gender, or religion in criminal cases. Where these issues are wrongfully injected, reversal is usually the result. See Miller v. N.C., 583 F.2d 701 (4th Cir.1978); Weddington v. State, 545 A.2d 607 (Del.Sup.1988). In State v. Bennett, 181 W.Va. 269, 274, 382 S.E.2d 322, 327 (1989), this Court condemned the practice of attorneys making unnecessary racial remarks in the presence of the jury:

“Although Mr. Perrill referred to Dr. Ar-rieta as ‘the colored lady’ only once, it should not have been said for the obvious reason that it may be construed as an appeal to prejudice. ‘To raise the issue of race is to draw the jury’s attention to a characteristic that the Constitution generally commands us to ignore. Even a reference that is not derogatory may carry impermissible connotations, or may trigger prejudiced responses in the listeners that the speaker might neither have predicted nor intended.’ McFarland v. Smith, 611 F.2d 414, 417 (2d Cir.1979).”

The same rationale applies to the prosecuting attorney drawing the jury’s attention to racial, gender, and political comments made by the defendant which in no way relate to the crime.32

Under the first step of our inquiry, we must determine whether the evidence is relevant to an issue of consequence. Where race, gender, or religion is a relevant factor in the case, its admission is not prohibited unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); State v. Crockett, 164 W.Va. 435, 265 S.E.2d 268 (1979). Normally, in order to be probative, evidence must be “relevant” under Rule 401, that is, it must tend to make an issue in the case more or less likely than would be so without the evidence. Other factors that bear on the probative value are the importance of the issue and the force of the evidence. 22 C. Wright & K. Graham, Federal Practice and Procedure § 5214 (1978). In this case, the State’s most difficult problem throughout this appeal is explaining how this evidence is relevant to an issue of consequence in the case.

The prosecution argues that such evidence is relevant as impeachment evidence in light of the father’s comments on direct examination when he portrayed the defendant as a good, quiet, Bible-reading man. In analyzing the contentions of the parties, we first observe that only the evidence of the defendant’s quiet and peaceful character was admissible under Rule 404(a)(1) of the West Virginia Rules of Evidence.33 Quite clearly, evidence that the defendant was a “Bible-reading man” and his religious beliefs are not admissible under the same rule because they simply do not concern a pertinent character trait. See State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989) (defendant’s reputation for not selling drugs is inadmissible). See also W.Va.R.Evid. 610.34 This issue is in this case only because *682the prosecution chose not to object to the inadmissible evidence.35 Thus, we must decide whether the prosecution should have been permitted to rebut this evidence under our curative admissibility rule. We hold the prosecution evidence was barred under the doctrine of curative admissibility and Rule 403.

The doctrine of curative admissibility is to be evaluated under our relevancy rules. To some extent, this rule is a restatement of the general rule that when a party opens up a subject, there can be no objection if the opposing party introduces evidence on the same subject. The most significant feature of the curative admissibility rule, however, is that it allows a party to present otherwise inadmissible evidence on an evidentiary point where an opponent has “opened the door” by introducing similarly inadmissible evidence on the same point. Perhaps, the clearest statement of curative admissibility came in Danielson v. Hanford, 352 N.W.2d 758, 761 (Minn.App.1984), where the Minnesota court, quoting from Busch v. Busch Construction, Inc., 262 N.W.2d 377, 387 (Minn.1977), stated:

“In order to be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) the original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence.”36 (Footnote omitted).

We believe the prosecution faces two hurdles in this case. First, was the evidence offered by the defendant prejudicial? This case was not one in which Bible reading had any relevancy. The defendant confessed to the killing and there were eyewitnesses. The only issue that the jury seriously had to consider was the degree of guilt. Certainly, whether the defendant read the Bible could have little impact on the degree of homicide. Second, the prosecution sought to go far beyond the evidence originally offered by the defendant. The fact that the defendant read the Bible and walked through the woods is hardly related to his affinity for Adolph Hitler, his dislike of African-Americans, and his chauvinistic feelings toward women.

The second inquiry under Rule 403 is whether the probity of the objected to evidence was substantially outweighed by its prejudice. In this regard, the defendant argues that even if the evidence had some probative value, it is clearly inadmissible under Rule 403. In State v. Derr, 192 W.Va. 165, 178, 451 S.E.2d 731, 744 (1994), we stated “that although Rules 401 and 402 strongly encourage the admission of as much evidence as possible, Rule 403 restricts this liberal policy by requiring a balancing of interests to determine whether logically relevant is legally relevant evidence.” Rule 403 calls upon the trial court to weigh the probative evidence against the harm that it may cause — unfair prejudice, confusion, misleading the jury, delay, or repetition — and to exclude the evidence if the probative value is “substantially outweighed” by the harm.

Thus, to perform the Rule 403 balance, we must assess the degree of probity of the evidence, which,, in turn, depends on its relation to the evidence and strategy presented at trial in general. The mission of Rule 403 is to eliminate the obvious instance *683in which a jury will convict because its passions are aroused rather than motivated by the persuasive force of the probative evidence. Stated another way, the concern is with any pronounced tendency of evidence to lead the jury, often for emotional reasons, to desire to convict a defendant for reasons other than the defendant’s guilt. In United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.1993), the court stated:

“We have defined undue prejudice as ‘ “a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.” ’...

“... When evidence of a defendant’s involvement in several of these activities is presented to the jury, the risk of unfair prejudice is compounded. In such a case, we fear that jurors will convict a defendant based on the jurors’ disdain or their belief that the defendant’s prior bad acts make guilt more likely. Furthermore, we are especially sensitive to prejudice in a trial where defendants are members of an unpopular religion.” (Citations omitted).

The prejudice that the trial court must assess is the prejudice that “lies in the danger of jury misuse of the evidence.” U.S. v. Brown, 490 F.2d 758, 764 (D.C.Cir.1973). (Emphasis in original).37

Prejudice is not the only threat. There is also a potential for confusing and misleading the jury. Quite apart from prejudice, there is a risk that undue emphasis on the defendant’s racial, gender, and/or political views could direct the jury’s attention from whether the defendant inflicted the fatal wound because of the “horseplay” or whether the defendant believed the victim was a threat to the defendant’s philosophy or way' of life. This deflection might seem like a minor matter easy to guard against in the instructions so far as confusion is concerned, but, when coupled with its potential for unfair prejudice, this evidence becomes overwhelmingly dangerous. Even if we concede that this evidence had some relevance on the impeachment issue, the risk of undue prejudice and the risk of confusion are alone enough to justify setting aside this verdict.

Our discussion thus far has not touched on the prosecution’s need for this evidence and the closely related question of alternatives available. In note 15 of Derr, 192 W.Va. at 178, 451 S.E.2d at 744, we stated that “[o]ne important factor under Rule 403 is the prosecutor’s need for the proffered evidence.” Here, as discussed above, the evidence of the defendant’s prejudices was not only unnecessary, but was not very helpful from a probative value standpoint. In applying Rule 403, it is pertinent whether a litigant has some alternative way to deal with the evidence that it claims the need to rebut that would involve a lesser risk of prejudice and confusion. 22 Wright & Graham, supra, § 5214 (citing cases). Obviously, we do not know what other means the prosecution had to prove the defendant was not a Bible reader or a person of peaceful character. What is important to us, however, is that the trial court failed to ascertain alternatives to this evidence before permitting the prosecution to use it. What we do know is that this issue arose because the prosecution did not object to some clearly irrelevant evidence. Nor did the trial court consider an instruction to the jury advising it to disregard all evidence of the defendant that the prosecution claimed needed rebutting. These failures strengthen our determination to declare error in this case.

To achieve substantial justice in our courts, a trial judge must not permit a jury’s finding to be affected or decided on account of racial or gender bias and whether one holds an unpopular political belief or opinion. If Rule 403 is ever to have a significant and effective role in our trial courts, it must be used to bar the admission of this highly prejudicial evidence. See, e.g., U.S. v. *684Kallin, 50 F.3d 689 (9th Cir.1995) (reversible error under Rule 403 to allow witness to testify to defendant’s dislike for Mexicans). While due process does not confer upon a criminal defendant a right to an error-free trial, see U.S. v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983),38 it unquestionably guarantees a fundamental right to a fair trial. See Lutwak v. U.S., 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). We emphasize that it is a fundamental guarantee under the Due Process Clause of Section 10 of Article III of the West Virginia Constitution that these factors — race, religion, gender, political ideology — when prohibited by our laws shall not play any role in our system of criminal justice.

3. Harmless Error Standard

Prosecutorial misconduct does not always warrant the granting of a mistrial or a new trial. The rule in West Virginia since time immemorial has been that a conviction will not be set aside because of improper remarks and conduct of the prosecution in the presence of a jury which do not clearly prejudice a defendant or result in manifest injustice. State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983); State v. Buck, 170 W.Va. 428, 294 S.E.2d 281 (1982). Similarly, the United States Supreme Court has acknowledged that given “the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial.” U.S. v. Hasting, 461 U.S. at 508-09, 103 S.Ct. at 1980, 76 L.Ed.2d at 106. Thus, the Supreme Court has held that an appellate court should not exercise its “[supervisory power to reverse a conviction ... when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error.” Hasting, 461 U.S. at 506, 103 S.Ct. at 1979, 76 L.Ed.2d at 104.

The harmless error doctrine requires this Court to consider the error in light of the record as a whole, but the standard of review in determining whether an error is harmless depends on whether the error was constitutional or nonconstitutional. It is also necessary for us to distinguish between an error resulting from the admission of evidence and other trial error. As to error not involving the erroneous admission of evidence, we have held that nonconstitutional error is harmless when it is highly probable the error did not contribute to the judgment. State v. Hobbs, 178 W.Va. 128, 358 S.E.2d 212 (1987) (prosecutor’s remarks although improper must be sufficiently prejudicial to warrant reversal); State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979). On the other hand, when dealing with the wrongful admission of evidence, we have stated that the appropriate test for barmlessness articulated by this Court39 is whether we can say with fair assurance, after stripping the erroneous evidence from the whole, that the remaining evidence was independently sufficient to support the verdict and the jury was not substantially swayed by the error.

In determining prejudice, we consider the scope of the objectionable comments and their relationship to the entire proceedings, the ameliorative effect of any curative instruction given or that could have been given but was not asked for, and the strength of the evidence supporting the defendant’s conviction. See McDougal v. McCammon, supra. As the United States Supreme Court explained “a criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments [or conduct] standing alone, for the statements or conduct must be viewed in context[.]” U.S. v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1, 9-10, on remand, 758 F.2d 514, on reconsideration, 767 F.2d 737 (1985) (finding harmless error where the prosecutor made an *685improper statement that the defendant was guilty and urged the jury to “do its job”).

Notwithstanding the above discussion, this Court is obligated to see that the guarantee of a fair trial under our Constitution is honored. Thus, only where there is a high probability that an error did not contribute to the criminal conviction will we affirm. “High probability” requires that this Court possess a “sure conviction that the error did not prejudice the defendant.” U.S. v. Jannotti, 729 F.2d 213, 220 n. 2 (3rd Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984). Indeed, the United States Supreme Court recently stated that where there is “ ‘grave doubt’ regarding the harmlessness of errors affecting substantial rights,” reversal is required. O’Neal v. McAninch, — U.S. -, -, 115 S.Ct. 992, 997, 130 L.Ed.2d 947, 956 (1995) (“grave doubt” about harmlessness of the error to be resolved in favor of the defendant).40 Therefore, we will reverse if we conclude that the prosecutor’s conduct and remarks, taken in the context of the trial as a whole, prejudiced the defendant.

In this ease, we have “grave doubt” as to whether the errors can be considered harmless. The primary issue in this case was not one of guilt or innocence, but was the degree of homicide for which the defendant would ultimately be convicted. To influence the jury’s evaluation and decision, the prosecution was permitted to suggest that any conviction less than first degree murder would permit the defendant to be released in five years and the defendant was a racist, a sexist, a Nazi, and a KKK sympathizer.41 These errors in combination compel setting aside the verdict, and we do not hesitate to do so on these grounds alone. In fact, it is difficult to imagine any evidence that would have a more powerful impact upon a jury or which would be more likely to deter it from fairly finding the defendant guilty of a lesser offense.

However, there is more. On cross-examination, the prosecuting attorney asked the defendant if he, upon learning of the victim’s death, replied to the police officer: “That’s too bad, buddy. Do you think it’ll snow?” Defense counsel objected because the alleged statement was not disclosed during discovery. Furthermore, the prosecuting attorney offered no factual basis for the question at trial.42 The defendant *686argues the State’s nondisclosure of this statement, pursuant to Rule 16 of the West Virginia Rules of Criminal Procedure, was prejudicial because it hampered the preparation and presentation of his case. Syllabus Point 3 of State v. Weaver, 181 W.Va. 274, 382 S.E.2d 327 (1989), states:

‘“When a trial court grants a pretrial discovery motion requiring the prosecution to disclose evidence in its possession, nondisclosure by the prosecution is fatal to its case where such nondisclosure is prejudicial. The nondisclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant’s case.’ Syllabus Point 2, State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980).”

See State v. Myers, supra. The defendant contends the issue of malice was critical at trial and the alleged statement was very damaging in proving a “heart regardless of social duty,” as the jury was instructed on malice. We agree with the defendant.43 We conclude that this line of questioning was extremely inappropriate. There seems to have been little, if any, justification for this line of questioning other than to inflame the jury through insinuation. Although we would be hesitant to reverse on this error alone, when coupled with the other errors discussed above, our decision to reverse is fortified. Syllabus Point 5 of State v. Walker, 188 W.Va. 661, 425 S.E.2d 616 (1992), states:

‘“Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.’ Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972).”

III.

CONCLUSION

In this case, our voyage is complete. “Having navigated the waters” of burden of proof, standards of review, new guidance for instruction in homicide cases, prosecutorial misconduct, and harmless error, “we now steer this case into the port of judgment and unload the cargo we have hauled.”44 For the foregoing reasons, we are compelled to hold the admission of the evidence discussed above and the prosecution’s failure to disclose the alleged oral statement of the defendant before cross-examination violated the defendant’s constitutional right to a fair trial. In so doing, we merely apply settled principles of law to the facts of this case.45

Based on the foregoing, the judgment of the Circuit Court of Kanawha County is reversed, and this case is remanded for a new trial.

Reversed and remanded.

*687BROTHERTON and RECHT, JJ., did not participate.

MILLER, Retired Justice, and FOX, Judge, sitting by temporary assignment.

WORKMAN, J., concurs and reserves the right to file a concurring opinion.

WORKMAN, Justice,

concurring:

I concur with the holding of the majority, but write this separate opinion to reiterate that the duration of the time period required for premeditation cannot be arbitrarily fixed. Neither the jury instruction approved by the majority, created from our past decisions in State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906) and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982) (as amplified by the majority opinion), nor the new instruction approved in the majority opinion1 affix any specific amount of time which must pass between the formation of the intent to kill and the actual killing for first degree murder cases. Given the majority’s recognition that these concepts are necessarily incapable of being reduced formulaically, I am concerned that some of the language in the opinion may indirectly suggest that some appreciable length of time must pass before premeditation can occur.

I agree with the majority in its conclusion that our decision in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982), incorrectly equated premeditation with intent to kill. However, I must point out that the majority’s suggested basis for defining premeditation and deliberation in terms of requiring some “appreciable time elapse between the intent to kill and the killing” and “some period between the formation of the intent to kill and the actual killing which indicates that the killing is by prior calculation and design” may create confusion in suggesting that premeditation must be the deeply thoughtful enterprise typically associated with the words reflection2 and contemplation.3 The majority’s interpretation may create ambiguity, if not clarified, by adding arguably contradictory factors to the law enunciated by the majority in the approved instruction, as well as the language in the Hatfield arid Dodds cases that the majority upholds. See Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410 n. 7; see also State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903).

For instance, nowhere in Hatfield, which upholds the Clifford instruction, is the notion that an “appreciable” amount of time must lapse in order for premeditation to occur. Neither is such a suggestion evident from the majority’s new instruction, derived from Hatfield:

“ ‘ “The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot he arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder.” ’ ”

169 W.Va. at 202, 286 S.E .2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214). Finally, even syllabus point five of the majority provides only that “[ajlthough premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing....”

Accordingly, it is necessary to make abundantly clear that premeditation is sufficiently demonstrated as long as “[a]ny interval of time[, no matter how short that interval is, *688lapses] between the forming of the intent to kill and the execution of that intent[.]” See Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214).

Christiancy J.:

The prisoner was charged with an assault with intent to kill and murder one Patrick Hunt. The evidence on the part of the prosecution was, that the prisoner entered the saloon of one Michael Foley, in the village of Houghton, where said Hunt was standing with several other persons; that prisoner entered through a back door and by a back way leading to it, in his shirt sleeves, in a state of great perspiration, and appearing to be excited; and on being asked if he had been at work, said he had been across the lake; that, on entering the saloon, he immediately passed nearly through it to where said Hunt was standing, and, on his way towards Hunt, said something, but it did not appear what, or to whom; that as soon as the prisoner came up to where Hunt was standing, he fired a pistol at Hunt, the charge of which took effect upon the head of Hunt, in and through the left ear, causing a severe wound thereon; by reason of which Hunt in a few moments fell to the floor, was partially deprived of Ms sense of hearing in that ear, and received a severe shock to his system which caused him to be confined to his bed for about a week, under the care of a physician; that immediately after the firing of the pistol prisoner, left the saloon, nothing being said by Hunt or the prisoner. It did not appear how, or with what, the pistol was loaded. The prisoner offered evidence tending to show an adulterous intercourse between his wife and Hunt on the morning of the assault, and within less than half an hour previous; that the prisoner saw them going into the woods together .about half an hour before the assault; that on their coming *217out of the woods the prisoner followed them immediately (evidence having already been given that prisoner had followed them to the woods); that, on their coming out of the woods, the prisoner .followed them and went after said Hunt into the saloon, where, on his arrival, the assault was committed; that the prisoner on his way to the saloon, a few minutes before entering it, was met by a friend who informed him that Hunt and the prisoner’s wife had had sexual intercourse" the day before in the woods. This evidence was rejected by the Court, and the prisoner excepted. Was the evidence properly rejected? This is the main question in the case, and its decision must depend upon the question whether the proposed evidence would have tended to reduce the killing — had death ensued — from murder to manslaughter, or rather, to have given it the character of manslaughter instead of murder?' If the homicide — in case death had ensued — would have been but manslaughter, then defendant could not be guilty of the assault with intent to murder, but only of a simple assault and battery. The question therefore involves essentially the same principles as where evidence is offered for a similar purpose in a prosecution for murder; except that, in some cases of murder, an actual intention to kill need not exist; but in a prosecution for an assault with intent to murder, the actual intention to kill must be found, and that under circumstances which would make the killing murder.

Homicide, or the mere killing of one person by another, does not, of itself, constitute murder; it may be murder, or manslaughter, .or excusable or justifiable homicide, and therefore entirely innocent, according to the circumstances, or the disposition or state of mind or purpose, which induced the act. It is not, therefore, the act which constitutes the offense, or determines its character; but the quo animo, the disposition, or state of mind, with which it is done. Actus non facii reum nisi mens sit rea.” People v Pond, 8 Mich. 150.

*218To give the homicide the legal character of murder, all the authorities agree that it must have been perpetrated with malice prepense or aforethought. This malice is just as essential an ingredient of the offense as the act which causes the death; without the concurrence of both, the crime can not exist; and, as every man is presumed innocent of the offense with which he is charged till he is proved to be guilty, this presumption must apply equally to both ingredients of the offense — to the malice as well as to the killing. Hence, though the principle seems to have been sometimes overlooked, the burden of proof, as to each, rests equally upon the prosecution, though the one may admit and require more direct proof than the other; malice, in most cases, not being susceptible of direct proof, but to be established by inferences more or less strong, to be drawn from the facts and circumstances connected with the killing, and which indicate the disposition or state of mind with which it was done. It is for the Court to define the legal import of the term, malice afore- - thought, or, in other words, that state or disposition of mind which constitutes it; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as, in their judgment, they deserve: and that the Court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, as presumption of law. If Courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole’ evidence it did not exist. I do not here speak of those cases in which the - death is caused in the attempt to commit some other offense, or in illegal resistance to public officers, or other classes of cases which may rest upon peculiar grounds of *219public policy, and which may or may not form an exception; but of ordinary cases, such as this would have been had death ensued. It is not necessary here to enumerate all the elements which enter into the legal definition of malice aforethought. It is sufficient to say that, within the principle of all the recognized definitions, the homicide must, in all ordinary cases, have been committed with some degree of coolness and deliberation, or, at least, under circumstances in which ordinary men, or the average of men recognized as peaceable citizens, would not be liable to have their reason clouded or obscured by passion; and the act- must be prompted by, or the circumstances indicate that it sprung from, a wicked, depraved or malignant mind — a mind which, even in its habitual condition and when excited by no provocation which would be liable to give undue control to passion in ordinary men, is cruel, wanton or malignant, reckless of human life, or regardless of social duty.

But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by .which the control of reason was disturbed, .rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or. rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter.

To what extent the passions must be aroused and the dominion of reason disturbed to reduce the offense from murder to manslaughter, the cases are by no means agreed; and any rule which should embrace all the cases ,that have been decided in reference to this point, would come *220very near obliterating, if it did not entirely obliterate, all distinction between murder and manslaughter in such cases. We must therefore endeavor to discover the principle upon which the question is to be determined. It will not do to hold that reason should be entirely dethroned, or overpowered by passion so as to destroy intelligent volition : State v. Hill, 1 Dev. & Bat. 491 ; Haile v. State, 1 Swan, 248; Young v. State, 11 Humph. 200. Such a degree of mental disturbance would be equivalent to utter insanity, aud, if the result of adequate provocation, would render the perpetrator morally innocent. But the law regards manslaughter as a high grade of offense; as a felony. On principle, therefore, the extent to Avhich the passions are required to be aroused and reason obscured must be considerably short of this, and never beyond that degree Avithin which ordinary men have the power, and are therefore morally as Avell as legally bound, to restrain their passions. It is only on the idea of a Adolation of this clear duty, that the act can be held criminal. There are many cases to be found in the books in Avhich this consideration, plain as it Avould seem to be in principle, appears to have been, in a great measure, overlooked, and a course of reasoning adopted which could only be justified on the supposition that the question was betAveen murder and excusable homicide.

The principle involved in the question, and which, I think, clearly dedueible from the .majority of well considered cases, Avould seem to suggest as the true general rule, that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition,; liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment.

To the question, what shall be considered in law a reasonable or adequate provocation for such a state of mind, so as to give to a homicide, committed under its *221influence, the character of manslaughter; on principle, the answer, as a general rule, must be, anything the natural tendency of which would be to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before them — not such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects folíolo from physical causes; for then the individual could hardly be held morally accountable. Nor, on the other hand, must the provocation, in every case, be held sufficient or reasonable, because such a state of excitement has followed from it; for then, by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men, and on account of that very wickedness of heart which, in itself, constitutes an aggravation both in morals and in law.

In determining whether the provocation is sufficient or reasonable, ordinary human nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard — unless, indeed, the person whose guilt is in question be shown to have some peculiar weakness of mind or infirmity of temper, not arising from wickedness of heart or cruelty of disposition.

It is doubtless, in one sense, the province of the Court to define what, in law, will constitute a reasonable or adequate provocation, but not, I think, in ordinary cases, to determine whether the provocation proved in the particular case is sufficient or reasonable. This is essentially a question of fact, and to be decided with reference to the peculiar facts of each particular case. As a general rule, the Court, after informing the jury to what extent the passions must be aroused and reason obscured to render the homicide manslaughter, should inform them that the provocation must be one, the tendency of which would be to produce such a degree of excitement and disturbance *222in the minds of ordinary men; and if they -should find such provocation from the facts proved, and should further find that it did produce that effect in the particular instance, and that the homicide was the result of such provocation, it would give it the character of manslaughter. Besides the consideration that the question is essentially one of fact, jurors, from the mode of their selection, coming from the various classes and occupations of society, and conversant with the practical affairs, of life, are, in my opinion, much better qualified to judge of the sufficiency and tendency of a given provocation, and much more likely to fix, with some degree of accuracy, the standard of what constitutes the average of ordinary human nature, than the Judge whose habits and course of life give him much less experience of the workings of passion in the actual conflicts of life.

The Judge, it is true, must, to some extent, assume to decide upon the sufficiency of the alleged provocation, when the question arises upon the admission of testimony; and when it is so clear as to admit of no reasonable doubt upon any theory, that the alleged provocation could not have had any tendency to produce such state of mind, in ordinary men, he may properly exclude the evidence; but, if the alleged provocation be such as to admit of any reasonable,doubt, whether it might not have had such tendency, it is much safer, I think, and more in accordance with principle, to let the evidence go to the jury under the proper instructions. As already intimated, the question of the reasonableness or adequacy of the provocation must depend upon the facts of each particular case.' That can, with no propriety, be called a rule (or a question) of law which must vary with, and depend upon the almost infinite variety of facts presented by the various cases as they arise. See Stark. on Ev., Amer. Ed. 1860, pp. 616 to 680. The law can not with justice assume, by the light of past decisions, to catalogue all the various facts and *223combinations of facts -which shall be held to constitute reasonable or adequate provocation. Scarcely two past cases can be found which are identical in all their circumstances; and there is no reason to hope for greater uniformity in future. Provocations will be given without reference to any previous model, and the passions they excite will not consult the precedents.

The same principles which govern, as to the extent to which the passions must be excited and reason disturbed, apply with equal force to the time during which its continuance may be recognized as a ground for mitigating the homicide to the degree of manslaughter, or, in other words, to the question of cooling time. This, like the provocation itself, must depend upon the nature of man and the laws of the human mind, as well as upon the nature and circumstances of the provocation, the extent to which the passions have been aroused, and the fact, whether the injury inflicted by the provocation is more or less permanent or irreparable. The passion excited by a blow received in a sudden quarrel, though perhaps equally violent for the moment, would be likely much sooner to subside than if aroused by a rape committed upon a sister or a daughter, or the discovery of an adulterous intercourse with a wife; and no two cases of the latter kind would be likely to be identical in all their circumstances of provocation. No precise time, therefore, in hours or minutes, can be laid down by the Court, as a rule of law, within which the passions must he held to have subsided and reason to have resumed its control, without setting at defiance the laws of man’s nature, and ignoring the veryj principle on which provocation and passion are allowed to be shown, at all, in mitigation of the offense-The question is one of reasonable time, depending upon all the circumstances of the particular case; and where the law has not defined, and can not without gross injustice define the precise time which shall be deemed reasonable, as it has with respect to notice of the dishonor of *224commercial paper. In such case, whore the law has defined what shall be reasonable time, the question of such reasonable time, the facts being found by the jury, is one of law for the Court; but in all other cases it is a question of fact for tho jury; and the Court can not take it from the jury by assuming to decide it as a question of law, without confounding the respective provinces of the Court and jury: — Stark. Ev., Ed. of 1860, pp. 768, 769, 774, 775. In Rex v. Howard, 6 C. & P. 157, and Rex v. Lynch, 5 C. & P. 324, this, question of reasonable cooling time was expressly held to be a question of fact for the jury. And see Whart. Cr. L., 4th ed., § 990 and oases cited. I am aware there are many cases in which it has been bold a question of law; but I can see no principle on which such a rule can rest. The Court should, I think, define to the jury the principles upon which the question is to be decided, and leave them to determine whether the time was reasonable under all the circumstances of the particular case. I do not mean to say that the time may not be so great as to enable the Court to determine that it is sufficient for the passion to have cooled, or so to instruct the jury, without error; but the case- should be very clear. And in .cases of applications for a new trial, depending upon the discretion of the Court, the question may very properly be considered by the Court.

It remains only to apply these principles to the present ease. The proposed evidence, in connection with what had already been given, would have tended strongly to show the commission of adultery by Hunt with the prisoner’s wife, within half an hour before the assault; that the prisoner saw them going to the woods together, under circumstances calculated strongly to impress upon his mind the belief of the adulterous purpose; that he followed after them to the woods; that Hunt and the prisoner’s wife were, not long after, seen coming from the woods, and that the prisoner followed them, and went in hot pursuit after Hunt *225to the saloon, and was informed by a friend on the way that they, had committed adultery the day before in the woods. ,1 can not resist the conviction that this would have been sufficient evidence of provocation to go to the jury, and from which, when taken in connection with the excitement and “great perspiration” exhibited on entering the saloon,' the hasty manner in which he approached and fired the pistol at Hunt, it would have been competent for the jury to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which, within the principle already explained, would have given to the homicide, had death ensued, the character of manslaughter only. In holding otherwise the Court below was doubtless guided by those cases in which Courts have arbitrarily assumed to take the question from the jury, and to decide upon the facts or some particular fact of the case, whether a sufficient provocation had been shown, and what was a reasonable time for cooling.

But there is still a further reason why the evidence should have been admitted. No other cause being shown for the assault, the proposed evidence, if given, could have left no reasonable doubt that it was, in fact, committed in consequence of the alleged provocation, whether sufficient or not; and all the facts constituting the provocation, or which led to the assault, being thus closely connected, and following each other in quick succession, and the assault itself in which they resulted, constituted together but one entire transaction. The circumstances which, in fact, led to the assault were a part of the res gestae, which the jury were entitled to have before them, to show what was the real nature of the act, the quo animo, state of mind and intention, with which it was done. The object of the trial should be to show the real nature of the whole transaction, whether its tendency may he to establish guilt or innocence / but, until the whole is shown which might have any bearing one way or the *226other, its tendency to establish the one or the other can not be known. Any inference drawn from a detached part of one entire transaction may be entirely false. And, for myself, I am inclined to the opinion, that all the facts constituting the res gestae, so far as the prosecuting counsel is informed of, and has the means of proving them, should, on principle and in fairness- to the prisoner, be laid before the jury by the prosecution. They naturally constitute the prosecutor’s case. And whenever it may appear evident to the Court, that but a part of the facts, or a single fact, has been designedly selected by the prosecution from the series constituting the res gestae, or entire transaction, and that the evidence of the others is within the power of the prosecutor, it would, I think, be the duty of the Court to require the prosecutor to show the transaction as a whole. See by. analogy, Holden’s case, 8 C. & P. 606 ; Stoner’s case, 1 C. & K. 650; Chapman’s case, 8 C. & P. 559 ; Orchard’s case, Ibid, note; Roscoe Cr. Ev. 164. Until this should be done it is difficult to see how any legitimate inference of guilt, or of the degree of the offense, can be drawn; as every reasonable hypothesis of innocence, or a lower degree of guilt, is not, it seems to me, excluded. Criminal prosecutions do not stand on the same ground, in this respect, as civil cases. In the latter no such presumption is to be overcome; nor is it necessary to exclude every other hypothesis than the one sought to be established: — 3 Greenl. Ev. § 29. But however this may be, it was clearly competent for the defendant to show the rest of the transaction, whether known to the prosecution or not. I think, therefore, for the several reasons stated, the evidence offered was erroneously rejected.

After the evidence was closed, the prisoner was called by his counsel to make a statement under the statute. This statement went strongly to corroborate the facts offered to be shown by the evidence rejected. The prisoner’s counsel requested the Court to charge, that the prisoner’s *227statement was for the consideration of the jury; that they should receive it as evidence in the cause, and give it such credit as, under the circumstances, they believed it entitled to; which the Court refused, and the prisoner’s counsel excepted. But the Court in this connection did charge, that the statement could not be received in relation to matters of defense excluded by the Court, the conduct of Hunt and the prisoner’s wife; but that where there were |facts and circumstances in relation to the commission of the offense, the jury might consider the prisoner’s statement in considering the evidence, and give it such weight as they thought proper.

The only substantial error of the Court in 'relation to this “ statement,” is that which grew out of the exclusion of the evidence, and was the natural consequence of that error. All he intended to say was, that the statement might be considered by the jury so far only as it had any bearing upon the case; but that, so far as it related to the conduct of Hunt and the prisoner’s wife, it had no such bearing. It was, thus far, erroneous; but in other respects substantially correct. It is of little consequence whether the statement be called evidence, or by some other name. It is not evidence within the ordinary acceptation of that term; because not given under the sanction of an oath, nor is the prisoner liable for perjury or to any other penalty, if it be false; nor can a full cross-examination be enforced. Yet it is clear the jury have a right to give it such credit, in whole or in part, as under all the circumstances they may think it entitled to.

The judgment should be reversed, and a new trial granted.

Martin Ch. J. and Campbell J. concurred.

Manning J.:

I differ from my brethren in this case. I think the evicence was properly excluded. To make that manslaughter *228which would otherwise be murder, the provocation — I am not speaking of its sufficiency, but of the provocation itself— must be given in the presence of the person committing the homicide. The cause of the provocation must occur in his presence. Park J. in Regina v. Fisher, 8 C. & P. 182, in speaking of the cause of provocation says, “ In all cases the party must see the act done.” Any other rule in an offense so grave as taking the life of a fellow being, in the heat of passion, I fear would be more humane to the perpetrator than wise in its effects on society. More especially since the abolition of the death penalty for murder, and the division of the crime into murder in the first and second degree. There is not now the same reason, namely, the severity of the punishment, for relaxing the rules of law in favor of a party committing homicide as before. It would, it seems to me, be extremely mischievous to let passion engendered by suspicion, or by something one has heard, enter into and determine the nature of a crime committed while under its influence. The innocent as well as the guilty, or those who had not as well as those who had given provocation, might be the sufferers. If it be said that in such cases the giving of the provocation must be proved or it would go for nothing; the answer is, that the law will not, and should not permit the lives of the innocent to be exposed with the guilty in this way, as it would do did it not require the cause of the provocation to occur in the presence of the person committing the homicide. See Regina v. Fisher, 8 C. & P. 182; Regina v. Kelly, 2 C. & K 814; and State v. John, 8 Ired. 330.

I think the judgment should be affirmed.

Judgment reversed, and new trial ordered.

COLE, Judge.

In this case we are asked to reconsider whether the types of provocation sufficient to mitigate the crime of murder to manslaughter should be limited to the categories we have heretofore recognized, or whether the sufficiency of the provocation should be decided by the factfinder on a case-by-case basis. Specifically, we must determine whether words alone are provocation adequate to justify a conviction of manslaughter rather than one of second degree murder.

The Petitioner, Steven S. Girouard, and the deceased, Joyce M. Girouard, had been married for about two months on October 28, 1987, the night of Joyce’s death. Both parties, who met while working in the same building, were in the army. They married after having known each other for approximately three months. The evidence at trial indicated that the marriage was often tense and strained, and there was some evidence that after marrying Steven, Joyce had resumed a relationship with her old boyfriend, Wayne.

*535On the night of Joyce’s death, Steven overheard her talking on the telephone to her friend, whereupon she told the friend that she had asked her first sergeant for a hardship discharge because her husband did not love her anymore. Steven went into the living room where Joyce was on the phone and asked her what she meant by her comments; she responded, “nothing.” Angered by her lack of response, Steven kicked away the plate of food Joyce had in front of her. He then went to lie down in the bedroom.

Joyce followed him into the bedroom, stepped up onto the bed and onto Steven’s back, pulled his hair and said, “What are you going to do, hit me?” She continued to taunt him by saying, “I never did want to marry you and you are a lousy fuck and you remind me of my dad.” 1 The barrage of insults continued with her telling Steven that she wanted a divorce, that the marriage had been a mistake and that she had never wanted to marry him. She also told him she had seen his commanding officer and filed charges against him for abuse. She then asked Steven, “What are you going to do?” Receiving no response, she continued her verbal attack. She added that she had filed charges against him in the Judge Advocate General’s Office (JAG) and that he would probably be court martialed.2

When she was through, Steven asked her if she had really done all those things, and she responded in the affirmative. He left the bedroom with his pillow in his arms and proceeded to the kitchen where he procured a long handled kitchen knife. He returned to Joyce in the bedroom with the knife behind the pillow. He testified that he was enraged and that he kept waiting for Joyce to say she was kidding, but Joyce continued talking. She said she *536had learned a lot from the marriage and that it had been a mistake. She also told him she would remain in their apartment after he moved out. When he questioned how she would afford it, she told him she would claim her brain-damaged sister as a dependent and have the sister move in. Joyce reiterated that the marriage was a big mistake, that she did not love him and that the divorce would be better for her.

After pausing for a moment, Joyce asked what Steven was going to do. What he did was lunge at her with the kitchen knife he had hidden behind the pillow and stab her 19 times. Realizing what he had done, he dropped the knife and went to the bathroom to shower off Joyce’s blood. Feeling like he wanted to die, Steven went back to the kitchen and found two steak knives with which he slit his own wrists. He lay down on the bed waiting to die, but when he realized that he would not die from his self-inflicted wounds, he got up and called the police, telling the dispatcher that he had just murdered his wife.

When the police arrived they found Steven wandering around outside his apartment building. Steven was despondent and tearful and seemed detached, according to police officers who had been at the scene. He was unconcerned about his own wounds, talking only about how much he loved his wife and how he could not believe what he had done. Joyce Girouard was pronounced dead at the scene.

At trial, defense witness, psychologist, Dr. William Stejskal, testified that Steven was out of touch with his own capacity to experience anger or express hostility. He stated that the events of October 28, 1987, were entirely consistent with Steven’s personality, that Steven had “basically reach[ed] the limit of his ability to swallow his anger, to rationalize his wife’s behavior, to tolerate, or actually to remain in a passive mode with that. He essentially went over the limit of his ability to bottle up those strong emotions. What ensued was a very extreme explosion of rage that was intermingled with a great deal of panic.” Another defense witness, psychiatrist, Thomas Goldman, *537testified that Joyce had a “compulsive need to provoke jealousy so that she’s always asking for love and at the same time destroying and undermining any chance that she really might have to establish any kind of mature love with anybody.”

Steven Girouard was convicted, at a court trial in the Circuit Court for Montgomery County, of second degree murder and was sentenced to 22 years incarceration, 10 of which were suspended. Upon his release, Petitioner is to be on probation for five years, two years supervised and three years unsupervised. The Court of Special Appeals affirmed the judgment of the circuit court in an unreported opinion. We granted certiorari to determine whether the circumstances of the case presented provocation adequate to mitigate the second degree murder charge to manslaughter.

Petitioner relies primarily on out of state cases to provide support for his argument that the provocation to mitigate murder to manslaughter should not be limited only to the traditional circumstances of: extreme assault or battery upon the defendant; mutual combat; defendant’s illegal arrest; injury or serious abuse of a close relative of the defendant’s; or the sudden discovery of a spouse’s adultery. Petitioner argues that manslaughter is a catchall for homicides which are criminal but that lack the malice essential for a conviction of murder. Steven argues that the trial judge did find provocation (although he held it inadequate to mitigate murder) and that the categories of provocation adequate to mitigate should be broadened to include factual situations such as this one.

The State counters by stating that although there is no finite list of legally adequate provocations, the common law has developed to a point at which it may be said there are some concededly provocative acts that society is not prepared to recognize as reasonable. Words spoken by the victim, no matter how abusive or taunting, fall into a category society should not accept as adequate provocation. According to the State, if abusive words alone could mitigate murder to manslaughter, nearly every domestic argu*538ment ending in the death of one party could be mitigated to manslaughter. This, the State avers, is not an acceptable outcome. Thus, the State argues that the courts below were correct in holding that the taunting words by Joyce Girouard were not provocation adequate to reduce Steven’s second degree murder charge to voluntary manslaughter.

Initially, we note that the difference between murder and manslaughter is the presence or absence of malice. State v. Faulkner, 301 Md. 482, 485, 483 A.2d 759 (1984); State v. Ward, 284 Md. 189, 195, 396 A.2d 1041 (1978); Davis v. State, 39 Md. 355 (1874). Voluntary manslaughter has been defined as “an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool” (Emphasis in original). Cox v. State, 311 Md. 326, 331, 534 A.2d 1333 (1988). See also, State v. Faulkner, supra; State v. Ward, supra; Whitehead v. State, 9 Md.App. 7, 262 A.2d 316 (1970).

There are certain facts that may mitigate what would normally be murder to manslaughter. For example, we have recognized as falling into that group: (1) discovering one’s spouse in the act of sexual intercourse with another; (2) mutual combat; (3) assault and battery. See State v. Faulkner, 301 Md. at 486, 483 A.2d 759. There is also authority recognizing injury to one of the defendant’s relatives or to a third party, and death resulting from resistance of an illegal arrest as adequate provocation for mitigation to manslaughter. See, e.g., 40 C.J.S. Homicide § 48 at 913 (1944) and 40 C.J.S. Homicide § 50 at 915-16 (1944). Those acts mitigate homicide to manslaughter because they create passion in the defendant and are not considered the product of free will. State v. Faulkner, 301 Md. at 486, 483 A.2d 759.

In order to determine whether murder should be mitigated to manslaughter we look to the circumstances surrounding the homicide and try to discover if it was provoked by the victim. Over the facts of the case we lay *539the template of the so-called “Rule of Provocation.” The courts of this State have repeatedly set forth the requirements of the Rule of Provocation:

1. There must have been adequate provocation;

2. The killing must have been in the heat of passion;

3. It must have been a sudden heat of passion — that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;

4. There must have been a causal connection between the provocation, the passion, and the fatal act.

Sims v. State, 319 Md. 540, 551, 573 A.2d 1317 (1990); Glenn v. State, 68 Md.App. 379, 406, 511 A.2d 1110, cert. denied, 307 Md. 599, 516 A.2d 569 (1986); Carter v. State, 66 Md.App. 567, 571, 505 A.2d 545 (1986); Tripp v. State, 36 Md.App. 459, 466, 374 A.2d 384 (1977); Whitehead v. State, 9 Md.App. at 11, 262 A.2d 316.

We shall assume without deciding that the second, third, and fourth of the criteria listed above were met in this case. We focus our attention on an examination of the ultimate issue in this case, that is, whether the provocation of Steven by Joyce was enough in the eyes of the law so that the murder charge against Steven should have been mitigated to voluntary manslaughter. For provocation to be “adequate,” it must be “ ‘calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.’ ” Carter v. State, 66 Md.App. at 572, 505 A.2d 545 quoting R. Perkins, Perkins on Criminal Law at p. 56 (2d ed. 1969). The issue we must resolve, then, is whether the taunting words uttered by Joyce were enough to inflame the passion of a reasonable man so that that man would be sufficiently infuriated so as to strike out in hot-blooded blind passion to kill her. Although we agree with the trial judge that there was needless provocation by Joyce, we also agree with him that the provocation was not adequate to mitigate second degree murder to voluntary manslaughter.

*540Although there are few Maryland cases discussing the issue at bar, those that do hold that words alone are not adequate provocation. Most recently, in Sims v. State, 319 Md. 540, 573 A.2d 1317, we held that “[i]nsulting words or gestures, no matter how opprobrious, do not amount to an affray, and standing alone, do not constitute adequate provocation.” Id. at 552, 573 A.2d 1317. That case involved the flinging of racial slurs and derogatory comments by the victim at the defendant. That conduct did not constitute adequate provocation.

In Lang v. State, 6 Md.App. 128, 250 A.2d 276, cert. denied, 396 U.S. 971, 90 S.Ct. 457, 24 L.Ed.2d 438 (1969), the Court of Special Appeals stated that it is “generally held that mere words, threats, menaces or gestures, however offensive and insulting, do not constitute adequate provocation.” Id. at 132, 250 A.2d 276. Before the shooting, the victim had called the appellant “a chump” and “a chicken,” dared the appellant to fight, shouted obscenities at him and shook his fist at him. Id. The provocation, again, was not enough to mitigate murder.

The court in Lang did note, however, that words can constitute adequate provocation if they are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm. Id. Clearly, no such conduct was exhibited by Joyce in this case. While Joyce did step on Steven’s back and pull his hair, he could not reasonably have feared bodily harm at her hands. This, to us, is certain based on Steven’s testimony at trial that Joyce was about 5'1" tall and weighed 115 pounds, while he was 6'2" tall, weighing over 200 pounds. Joyce simply did not have the size or strength to cause Steven to fear for his bodily safety. Thus, since there was no ability on the part of Joyce to cause Steven harm, the words she hurled at him could not, under the analysis in Lang, constitute legally sufficient provocation.

Other jurisdictions overwhelmingly agree with our cases and hold that words alone are not adequate provocation. See, e.g., State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977); *541West v. United States, 499 A.2d 860 (D.C.App.1985); Nicholson v. United States, 368 A.2d 561 (D.C.App.1977); Hill v. State, 236 Ga. 703, 224 S.E.2d 907 (1976); Cox v. State, 512 N.E.2d 1099 (Ind.1987); State v. Guebara, 236 Kan. 791, 696 P.2d 381 (1985); State v. Hilliker, 327 A.2d 860 (Me.1974); Commonwealth v. Bermudez, 370 Mass. 438, 348 N.E.2d 802 (1976); Gates v. State, 484 So.2d 1002 (Miss.1986); State v. Milosovich, 42 Nev. 263, 175 P. 139 (1918); State v. Mauricio, 117 N.J. 402, 568 A.2d 879 (1990); State v. Castro, 92 N.M. 585, 592 P.2d 185 (1979); State v. Best, 79 N.C.App. 734, 340 S.E.2d 524 (1986); State v. Butler, 277 S.C. 452, 290 S.E.2d 1 (1982). One jurisdiction that does allow provocation brought about by prolonged stress, anger and hostility caused by marital problems to provide grounds for a verdict of voluntary manslaughter rather than murder is Pennsylvania. See Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728, 733-34 (1987). The Pennsylvania court left the determination of the weight and credibility of the testimony regarding the marital stress and arguments to the trier of fact.

We are unpersuaded by that one case awash in a sea of opposite holdings, especially since a Maryland case counters Nelson by stating that “the long-smoldering grudge ... may be psychologically just as compelling a force as the sudden impulse but it, unlike the impulse, is a telltale characteristic of premeditation.” Tripp v. State, 36 Md. App. at 471-72, 374 A.2d 384. Aside from the cases, recognized legal authority in the form of treatises supports our holding. Perkins on Criminal Law, at p. 62, states that it is “with remarkable uniformity that even words generally regarded as ‘fighting words’ in the community have no recognition as adequate provocation in the eyes of the law.” It is noted that

mere words or gestures, however offensive, insulting, or abusive they may be, are not, according to the great weight of authority, adequate to reduce a homicide, although committed in a passion provoked by them, from murder to manslaughter, especially when the homicide *542was intentionally committed with a deadly weapon[.] (Footnotes omitted)

40 C.J.S. Homicide § 47, at 909 (1944). See also, 40 Am. Jur.2d Homicide § 64, at 357 (1968).

Thus, with no reservation, we hold that the provocation in this case was not enough to cause a reasonable man to stab his provoker 19 times. Although a psychologist testified to Steven’s mental problems and his need for acceptance and love, we agree with the Court of Special Appeals speaking through Judge Moylan that “there must be not simply provocation in psychological fact, but one of certain fairly well-defined classes of provocation recognized as being adequate as a matter of law.” Tripp v. State, 36 Md.App. at 473, 374 A.2d 384. The standard is one of reasonableness; it does not and should not focus on the peculiar frailties of mind of the Petitioner. That standard of reasonableness has not been met here. We cannot in good conscience countenance holding that a verbal domestic argument ending in the death of one spouse can result in a conviction of manslaughter. We agree with the trial judge that social necessity dictates our holding. Domestic arguments easily escalate into furious fights. We perceive no reason for a holding in favor of those who find the easiest way to end a domestic dispute is by killing the offending spouse.

We will leave to another day the possibility of expansion of the categories of adequate provocation to mitigate murder to manslaughter. The facts of this case do not warrant the broadening of the categories recognized thus far.

JUDGMENT AFFIRMED WITH COSTS.

Judge ELDRIDGE concurs in the result only.

Lummus, J.

On November 28, 1942, and for about nine years before that day, a corporation named New Cocoanut Grove, Inc., maintained and operated a “night club” in Boston, having an entrance at 17 Piedmont Street, for the furnishing to the public for compensation of food, drink, and entertainment consisting of orchestra and band music, singing and dancing. It employed about eighty persons. The corporation, its officers and employees, and its business, were completely dominated by the defendant Barnett Welansky, who is called in this opinion simply the defendant, *387since his codefendants were acquitted by the jury. He owned, and held in his own name or in the names of others, all the capital stock. He leased some of the land on which the corporate business was carried on, and owned the rest, although title was held for him by his sister. He was entitled to, and took, all the profits. Internally, the corporation was operated without regard to corporate forms, as though the business were that of the defendant as an individual. It was not shown that responsibility for the number or condition of safety exits had been delegated by the defendant to any employee or other person.

The defendant was accustomed to spend his evenings at the night club, inspecting the premises and superintending the business. On November 16, 1942, he became suddenly ill, and was carried to. a hospital, where he was in bed for three weeks and remained until discharged on December 11, 1942. During his stay at the hospital, although employees visited him there, he did not concern himself with the night club, because, as he testified, he “knew it would be all right” and that “the same system . . . [he] had would continue” during his absence. There is no evidence of any act, omission or condition at the night club on November 28, 1942, (apart from the lighting of a match hereinafter described), that was not within the usual and regular practice during the time before the defendant was taken ill when he was at the night club nearly every evening. While the defendant was at the hospital, his brother James Welansky and an employee named Jacob Goldfine, who were made codefendants, assumed some of the defendant’s duties at the night club, but made no change in methods. Under these circumstances the defendant was not entitled to a verdict of not guilty on the ground that any acts or omissions on the evening of November 28, 1942, were the transitory and unauthorized acts or omissions of servants or other persons, for which the defendant could not be held criminally responsible. Commonwealth v. Stevens, 153 Mass. 421. Commonwealth v. Anthony, 306 Mass. 470, 478.

The physical arrangement of the night club on November 28,1942, as well as on November 16, 1942, when the defend*388ant last had personal knowledge of it, was as follows. The total area of the first or street floor was nine thousand seven hundred sixty-three square feet. Entering the night club through a single revolving door at 17 Piedmont Street, one found himself in a foyer or hall having an area of six hundred six square feet. From the foyer, there was access to small rooms used as toilets, to a powder room and a telephone room, to a small room for the checking of clothing, and to another room with a vestibule about five feet by six feet in size adjoining it, both of which were used as an office in the daytime and for the checking of clothing in the evening. In the front corner of the foyer, to the left, beyond the office, was a passageway leading to a stairway about four feet wide, with fifteen risers. That stairway led down to the Melody Lounge in the basement, which was the only room in the basement open to the public. There were to be found a bar, tables and chairs.

The extreme dimensions of the Melody Lounge were about thirty-six feet by fifty-five feet, and its area was one thousand eight hundred ninety-five square feet. It was separated from a narrow corridor leading to the kitchen (which was located under the main dining room) by a wooden partition. In that partition was a wooden door, two feet and two inches wide, which could have been found to be unmarked. Passing from the Melody Lounge through that door, and thus entering the narrow corridor, one could turn to the left and go to a door which swung inward and could be opened only to a width of eighteen inches, at the top of three steps. That door was barred by a wooden bar that had to be lifted off before the door could be opened at all. On opening that door, one could pass into an outdoor alley about three and one half feet wide. That alley led to a yard, from which egress.could be had through in-swinging doors into another passageway and thence to Shawmut Street.

If, instead, one passing from the Melody Lounge into the narrow corridor should turn to the right, he might pass, as employees were accustomed to do, through a door two and one half feet wide swinging into the corridor from the kitchen. Once in the kitchen, he could traverse that room with all its *389equipment to the other end of it near Shawmut Street, and then go upstairs and through swinging doors into a corner of the main dining room.

It is evident that in an emergency escape from the Melody Lounge by either of these courses would be difficult for a patron not thoroughly familiar with parts of the premises not ordinarily open to him.

Returning to the foyer, and standing as though one had just entered it by the revolving door, to the right, in the front of the building on Piedmont Street, was a room called the Caricature Bar, with an area of one thousand three hundred ninety-nine square feet, containing two bars, stools and chairs. Toward Shawmut Street, and separated from the Caricature Bar by a railing, was the main dining room, with an area of three thousand seven hundred sixty-five square feet. The foyer opened into both the Caricature Bar and the main dining room. In the main dining room was a dance floor with an area of six hundred sixty square feet, and behind it, in the direction of Broadway, was a stage with an area of four hundred thirty-six square feet.

From the Caricature Bar and from the main dining room one could pass into a corridor near the stage, about four feet wide, up some steps, and through a passageway about seven feet wide into the new .Cocktail Lounge, which was first opened on November 17, 1942, and which had an area of seven hundred eighty-one square feet. There one found a bar, stools, tables and seats, and also a check room and toilets. In the farther corner of the Cocktail Lounge was a door three feet wide, swinging inward, through which one could enter a small vestibule from which he could go through a pair of doors to Broadway at 59 Broadway.

That pair of doors, and the revolving door at 17 Piedmont Street, were the only entrances and exits intended for the ordinary use of patrons. Besides those doors, and the exit through the wooden partition from the Melody Lounge, already described, there were five possible emergency exits from the night club, all on the first or street floor. These will now be listed and described.

(1) A door, opening outward to Piedmont Street, two *390and one half feet wide, at the head of the stairway leading to and from the basement Melody Lounge. That door apparently was not visible from the greater part of the foyer, for it was in a passageway that ran from one end of the foyer past the office to the stairway. That door was marked “Exit” by an electric sign. It was equipped with a “panic” or “crash” bar, intended to unbolt and open the door upon pressure from within the building. But on the evidence it could have been found that the device just mentioned was regularly made ineffective by having the door locked by a separate lock operated by a key that was kept in a desk in the office. Late in the evening of November 28, 1942, firemen found that door locked and had to force it open with an axe. The jury were entitled to disbelieve the testimony of the defendant that he had instructed the head waiter, who died in the occurrence of that evening, always to keep that door unlocked. It may be observed that if that door should be left so that it could be opened by means of the panic bar, a patron might leave through that door without paying his bill. It does not appear that anyone watched that door to prevent patrons from so doing.

(2) A door two and one third feet wide leading from the foyer, near the revolving door, into the small vestibule adjoining the office, already described. From that vestibule another similar door, swinging inward, gave egress to Piedmont Street, near the revolving door. The door to Piedmont Street could not be opened fully, because of a wall shelf. And that door was commonly barred in the evening, as it was on November 28, 1942, by a removable board with clothing hooks on it, and by clothing, for in the evening the office and vestibule were used for checking clothing.

(3) A door, opening outward, from the middle of the wall of the main dining room to Shawmut Street, and marked “Exit” by an electric sign. The opening was about three and two thirds feet wide. The defendant testified that this was the principal exit provided for emergencies. From the sides of the opening hung double doors, equipped with “panic” bars intended to unbolt and open the doors upon pressure from within. But on the evening of November 28, *3911942, one of the two doors did not open upon pressure, and had to be hammered with a table before it would open. Besides, the "panic” doors were hidden frornTthe view of diners "by a pair of "Venetian” wooden doors, swinging inward, and fastened by a hook, which had to be opened before one could operate the “panic” doors. In addition, dining tables were régularly placed near the Venetian doors, one of them within two feet, and these had to be moved away in order to get access to the doors. That condition prevailed on the evening of November 28, 1942.

(4) The service door, two and one half feet wide, swinging inward, leading to Shawmut Street at 8 Shawmut Street. This door was near the stage, at the foot of a stairway leading to dressing rooms on the second floor, and was in a part of the premises to which patrons were not admitted and which they could not see. This door was known to employees, but doubtless not to patrons. It was kept locked by direction of the defendant, and the key was kept in a desk in the office.

(5) The door, two and three fourths feet wide, swinging inward, leading from a corridor into which patrons had no occasion to go, to Shawmut Street at 6 Shawmut Street. No patron was likely to know of this door. It was kept locked by direction of the defendant, but he ordered the key placed in the lock at seven every evening.

We now come to the story of the fire. A little after ten o’clock on the evening of Saturday, November 28, 1942, the night club was well filled with a crowd of patrons. It was during the busiest season of the year. An important football game in the afternoon had attracted many visitors to Boston. Witnesses were rightly permitted to testify that the dance floor had from eighty to one hundred persons on it, and that it was "very crowded.” Beverley v. Boston Elevated Railway, 194 Mass. 450, 457. Witnesses were rightly permitted to give their estimates, derived from their observations, of the number of patrons in various parts of the night club. Upon the evidence it could have been found that at that time there were from two hundred fifty to four hundred persons in the Melody Lounge, from four hundred *392to five hundred in the main dining room and the Caricature Bar, and two hundred fifty in the Cocktail Lounge. Yet it could have been found that the crowd was no larger than it had been on other Saturday evenings before the defendant was taken ill, and that there had been larger crowds at earlier times. There were about seventy tables in the dining room, each seating from two to eight persons. There was testimony that all but two were taken. Many persons were standing in various rooms. The defendant testified that the reasonable capacity of the night club, exclusive of the new Cocktail Lounge, was six hundred fifty patrons. He never saw the new Cocktail Lounge with the furniture installed, but it was planned to accommodate from one hundred to one hundred twenty-five patrons.

A bartender in the Melody Lounge noticed that an electric light bulb which was in or near the cocoanut husks of an artificial palm tree in the corner had been turned off and that the corner was dark. He directed a sixteen year old bar boy who was waiting on customers at the tables to cause the bulb to be lighted. A soldier sitting with other persons near the light told the bar boy to leave it unlighted. But the bar boy got a stool, lighted a match in order to see the bulb, turned the bulb in its socket, and thus lighted it. The bar boy blew the match out, and started to walk away. Apparently the flame of the match had ignited the palm tree and that had speedily ignited the low cloth ceiling near it, for both flamed up almost instantly. The fire spread with great rapidity across the upper part of the room, causing much heat. The crowd in the Melody Lounge rushed up the stairs, but the fire preceded them. People got on fire while on the stairway. The fire spread with great speed across the foyer and into the Caricature Bar and the main dining room, and thence into the Cocktail Lounge. Soon after the fire started the lights in the night club went out. The smoke had a peculiar odor. The crowd were panic stricken, and rushed and pushed in every direction through the night club, screaming, and overturning tables and chairs in their attempts to escape.

The door at the head of the Melody Lounge stairway *393was not opened until firemen broke it down from outside with an axe and found it locked by a key lock, so that the panic bar could not operate. Two dead bodies were found close to it, and a pile of bodies about seven feet from it. The door in the vestibule of the office did not become open, and was barred by the clothing rack. The revolving door soon jammed, but was burst out by the pressure of the crowd. The head waiter and another waiter tried to get open the panic doors from the main dining room to Shawmut street, and succeeded after some difficulty. The other two doors to Shawmut Street were locked, and were opened by force from outside by firemen and others. Some patrons escaped through them, but many dead bodies were piled up inside them. A considerable number of patrons escaped through the Broadway door, but many died just inside that door. Some employees, and a great number of patrons, died in the fire. Others were taken out of the building with fatal burns and injuries from smoke, and died within a few days.

I. The pleadings, verdicts, and judgments.

The defendant, his brother James Welansky, and Jacob Goldfine, were indicted for manslaughter in sixteen counts of an indictment numbered 413, each count for causing the death of a person described as "Jane Doe,” "John Doe,” or the like. The first six counts were quashed, leaving the last ten counts. Later a motion by the Commonwealth was allowed, substituting in each of the last ten counts the real name of a victim. See Commonwealth v. DiStasio, 294 Mass. 273, 278, 279. Voluntarily the Commonwealth filed specifications as to those counts, by which it specified among other things that the alleged misconduct of the defendant consisted in causing or permitting or failing reasonably to prevent defective wiring, the installation of inflammable decorations, the absence of fire doors, the absence of “proper means of egress properly maintained” and “sufficient proper” exits, and overcrowding. Some other specifications — such as failure to prevent the unlawful employment of minors — plainly had little or no relation *394to any wanton or reckless conduct that might result in manslaughter. The Commonwealth refused to specify as requested by the defendant what statutes, what “provisions of” the common law, or what ordinances, had been violated. The Commonwealth did specify the nature of the mortal injuries suffered by the different victims, all of whom were patrons, and the harmful consequences to which acts or omissions of the defendant exposed the several victims and which could have been foreseen by the defendant. The judge refused to require further specifications.

The defendant moved to quash each count because (1) when read with the specifications it sets out no crime, and (2) when read with the specifications it does not fully, plainly, substantially and formally set out any crime as required by art. 12 of the Declaration of Rights. Each of the counts numbered from 7 to 12 inclusive as amended alleged in substance that the New Cocoanut Grove, Inc., a corporation, did for a period of time prior to and including November 28, 1942, maintain and operate a night club, to which it invited members of the general public; that it was under a legal duty to its invitees to use reasonable care to keep its premises safe for their use; that the three persons indicted were authorized by the corporation to maintain, control, operate, construct, alter, supervise, and manage its premises in its behalf; that said three persons accepted the responsibility for such acts, and were therefore under a duty to its invitees to use such reasonable care; that in reckless disregard of such duty to one (naming the victim) who was lawfully upon said premises pursuant to such invitation to the general public, and of the probable harmful consequences to him of their failure to perform said duty, they and each of them did “wilfully, wantonly and recklessly neglect and fail to fulfil their said legal duty and obligation to the said” victim, by reason whereof he on November 28, 1942, received a mortal injury, as a result of which on that day he died.

Each of the thirteenth and fourteenth counts is in shorter form, and alleges in substance that the three persons indicted and each of them on November 28, 1942, did “main*395tain, manage, operate and supervise certain premises,” describing them, “and solicited and invited the patronage of the public to the said premises”; that at the aforesaid time and place the named victim was lawfully upon the aforesaid premises as a customer on the said invitation, and that the three persons indicted and each of them did “assault and beat” the said victim, and by said assault and beating did kill him “by wilfully, wantonly and recklessly maintaining, managing, operating and supervising the said premises.” Each of counts 15 and 16 alleges merely that the defendants assaulted and beat a named victim and by such assaulting and beating did kill the victim.

Another indictment numbered 414 in sixteen counts was returned against the same three persons. The first six counts were quashed, and a verdict of not guilty was directed upon the sixteenth count. That left nine counts, numbered 7 to 15 inclusive. Counts 7 to 14 inclusive were substantially like counts 7 to 14 inclusive in the indictment numbered 413, except for the names of the victims. Count 15 was a short count alleging that the three persons indicted “on the twenty-eighth day of November in the year of our Lord one thousand nine hundred and forty-two, did, all and each of them, assault and beat one Eleanor Chiampa, and by such assault and beating, did kill the said Eleanor Chiampa.” That count followed the form of an indictment for “Manslaughter” appended to G. L. (Ter. Ed.) c. 277, § 79. That form could properly be used even in a case of involuntary manslaughter. Commonwealth v. Arone, 265 Mass. 128. Upon this indictment the Commonwealth furnished specifications substantially like those furnished upon indictment 413.

The motions to quash certain counts of these indictments were properly denied. The judge was bound to require a bill of particulars only to the extent that without it the indictment would be deficient in that the offence charged would not be “fully, plainly, substantially and formally set out,” as required by art. 12 of the Declaration of Rights. G. L. (Ter. Ed.) c. 277, § 40. Commonwealth v. Snell, 189 Mass. 12, 18, 19. Commonwealth v. Sinclair, 195 Mass. *396100, 105-108. Commonwealth v. Massad, 242 Mass. 532. Beyond that the requirement of particulars or specifications was discretionary. Commonwealth v. King, 202 Mass. 379, 384. Commonwealth v. Bartolini, 299 Mass. 503, 509. Commonwealth v. Hayes, 311 Mass. 21. The defendant had the benefit of specifications that were fully as complete and detailed as were necessary for compliance with the Constitution or for fairness to him. Commonwealth v. Wakelin, 230 Mass. 567, 571. Commonwealth v. Lammi, 310 Mass. 159. For constitutional purposes "all that is required is that the indictment, read with the bill of particulars, be sufficient fully, plainly, substantially and formally to give the defendant reasonable knowledge of the crime with which he is charged.” Commonwealth v. Hayes, 311 Mass. 21, 25. Commonwealth v. Gedzium, 259 Mass. 453, 457. Commonwealth v. Albert, 307 Mass. 239, 243. There is nothing in the motions to quash. There is still less, if that were possible, in the belated attempt to raise the same question of pleading by motion in arrest of judgment. Commonwealth v. McKnight, 283 Mass. 35, 38, 39.

The defendant was found guilty upon counts 7 to 16 inclusive of indictment 413 and upon counts 7 to 15 inclusive of indictment 414. He was sentenced to imprisonment in the State prison upon each count for a term of not less than twelve years and not more than fifteen years, the first day of said term to be in solitary confinement and the residue at hard labor (G. L. [Ter. Ed.] c. 279, § 29), the sentences to run concurrently. Upon a motion for a stay in the execution of the sentences, a stay was denied. G. L. (Ter. Ed.) c. 279, § 4, as amended by St. 1935, c. 50, § 3. The cases come here under G. L. (Ter. Ed.) c. 278, §§ 33A-33G, upon an appeal, a transcript of the evidence, a summary of the record, and an assignment of one hundred twenty-four alleged errors.

II. The principles governing liability.

The Commonwealth disclaimed any contention that the defendant intentionally killed or injured the persons named in the indictments as victims. It based its case on invol*397untary manslaughter through wanton or reckless conduct. The judge instructed the jury correctly with respect to the nature of such conduct.1

Usually wanton or reckless conduct consists of an affirmative act, like driving an automobile or discharging a firearm, in disregard of probable harmful consequences to another. But where, as in the present case, there is a duty of care for the safety of business visitors invited to premises which the defendant controls,2 wanton or reckless conduct may consist of intentional failure to take such care in disregard of the probable harmful consequences to them or of their right to care. Aiken v. Holyoke Street Railway, 184 Mass. 269, 271; Banks v. Braman, 188 Mass. 367, 369. Queen v. Senior, [1899] 1 Q. B. 283. State v. Benton, 38 Del. 1. Am. Law Inst. Restatement: Torts, § 500. 26 Am. Jur. Homicide, §§ 205-208. 29 C. J. 1154, et seq.

To define wanton or reckless conduct so as to distinguish it clearly from negligence and gross negligence is not easy. Banks v. Braman, 188 Mass. 367, 370. Commonwealth v. Arone, 265 Mass. 128, 132. Sometimes the word “wilful” is prefaced to the words “wanton” and “reckless” in expressing the concept. That only blurs it. Wilful means intentional. In the phrase “wilful, wanton or reckless conduct,” if “wilful” modifies “conduct” it introduces *398something different from wanton or reckless conduct, even though the legal result is the same. Wilfully causing harm is a wrong, but a different wrong from wantonly or recklessly causing harm. If “wilful” modifies “wanton or reckless conduct” its use is accurate. What must be intended is the conduct, not the resulting harm. Altman v. Aronson, 231 Mass. 588, 592. Banks v. Braman, 188 Mass. 367, 369. The words “wanton” and “reckless” are practically synonymous in this connection, although the word “wanton” may contain a suggestion of arrogance or insolence or heartlessness that is lacking in the word “reckless.” But intentional conduct to which either word applies is followed by the same legal consequences as though both words applied.

The standard of wanton or reckless conduct is at once subjective and objective, as has been recognized ever since Commonwealth v. Pierce, 138 Mass. 165. Knowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger. Banks v. Braman, 188 Mass. 367, 369. Romana v. Boston Elevated Railway, 218 Mass. 76, 83. Commonwealth v. Peach, 239 Mass. 575. Nash v. United States, 229 U. S. 373, 377. Arizona Employer’s Liability Cases, 250 U. S. 400, 432. Am. Law Inst. Restatement: Torts, § 500, and also comments c and f. See also Brennan v. Schuster, 288 Mass. 311. The judge charged the jury correctly when he said, “To constitute wanton or reckless conduct, as distinguished from mere negligence, grave danger to others must have been apparent, and the defendant must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm. If the grave danger was in fact realized by the defendant, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not. But even if a particular defendant is so stupid [or] so heedless - . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct in his dangerous act or omission, if an ordinary normal *399man under the same circumstances would have realized the gravity of the danger. A man may be reckless within the meaning of the law although he himself thought he was careful.”

The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. Am. Law Inst. Restatement: Torts, § 500. LeSaint v. Weston, 301 Mass. 136, 138. Wanton or reckless conduct amounts to what has been variously described as indifference to or disregard of probable' consequences to that other (Aiken v. Holyoke Street Railway, 184 Mass. 269, 271; Freeman v. United Fruit Co. 223 Mass. 300, 302; Banks v. Braman, 188 Mass. 367, 369; Yancey v. Boston Elevated Railway, 205 Mass. 162, 171; Burns’s Case, 218 Mass. 8, 10; Romana v. Boston Elevated Railway, 218 Mass. 76, 83; Sullivan v. Napolitano, 277 Mass. 341, 344) or the rights of that other. Warren v. Pazolt, 203 Mass. 328, 347. Commonwealth v. Horsfall, 213 Mass. 232, 235. Cohen v. Davies, 305 Mass. 152, 155, 156. But we are not prepared to give unqualified approval to a further statement found in some of our reported decisions, for example in Query v. Howe, 273 Mass. 92, 96, that to constitute wanton or reckless conduct, disregard of the rights of another must be as complete or utter as though such rights did not exist. If taken literally, that statement would permit a trifling regard for the rights of another to exonerate a defendant from the criminal consequences of flagrant wrongdoing.

The words “wanton” and “reckless” are thus not merely rhetorical or vituperative expressions used instead of negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind. Banks v. Braman, 188 Mass. 367. Cotter, petitioner, 237 Mass. 68, 72. Adamowicz v. Newburyport Gas & Electric Co. 238 Mass. 244, 246. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239, 242; S. C. 241 Mass. 100, 102. McIntyre v. Con *400verse, 238 Mass. 592, 594. Young v. Worcester, 253 Mass. 481, 484. Potter v. Gilmore, 282 Mass. 49, 57. Am. Law Inst. Restatement: Torts, § 500, comment g. For many years this court has been careful to preserve the distinction between negligence and gross negligence, on the one hand, and wanton or reckless conduct on the other. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239; S. C. 241 Mass. 100. Compare Jamison v. Encarnacion, 281 U. S. 635; Alpha Steamship Corp. v. Cain, 281 U. S. 642. In pleadings as well as in statutes the rule is that “negligence and wilful and wanton conduct are so different in kind that words properly descriptive of the one commonly exclude the other.” Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445, 447. Romana v. Boston Elevated Railway, 226 Mass. 532, 536.

Notwithstanding language used commonly in earlier cases, and occasionally in later ones,1 it is now clear in this Commonwealth that at common law conduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct. There is in Massachusetts at common law no such thing as “criminal negligence.” Commonwealth v. Guillemette, 243 Mass. 346. Commonwealth v. Arone, 265 Mass. 128. Commonwealth v. Jones, 288 Mass. 150, 152. *401Minasian v. Aetna Life Ins. Co. 295 Mass. 1, 5. Commonwealth v. Maguire, 313 Mass. 669.

Wanton or reckless conduct is the legal equivalent of intentional conduct. Aiken v. Holyoke Street Railway, 184 Mass. 269, 271. Banks v. Braman, 188 Mass. 367, 369. McIntyre v. Converse, 238 Mass. 592, 594. Sullivan v. Napolitano, 277 Mass. 341. Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378, 387. Baines v. Collins, 310 Mass. 523, 526. Am. Law Inst. Restatement: Torts, § 282, comment d. If by wanton or reckless conduct bodily injury is caused to another, the person guilty of such conduct is guilty of assault and battery. Commonwealth v. Hawkins, 157 Mass. 551. Commonwealth v. Gorman, 288 Mass. 294, 299. Commonwealth v. McCan, 277 Mass. 199, 203. State v. Schutte, 87 N. J. L. 15, affirmed 88 N. J. L. 396. Brimhall v. State, 31 Ariz. 522; 53 Am. L. R. 231. Woodward v. State, 164 Miss. 468. Davis v. Commonwealth, 150 Va. 611. And since manslaughter is simply a battery that causes death (Minasian v. Aetna Life Ins. Co. 295 Mass. 1, 5; Commonwealth v. Velleco, 272 Mass. 94, 99), if death results he is guilty of manslaughter. Commonwealth v. Hartwell, 128 Mass. 415, 417. Commonwealth v. Pierce, 138 Mass. 165. Commonwealth v. Hawkins, 157 Mass. 551, 553. Commonwealth v. Parsons, 195 Mass. 560, 569. Commonwealth v. Peach, 239 Mass. 575. Commonwealth v. Guillemette, 243 Mass. 346. Commonwealth v. Arone, 265 Mass. 128. Commonwealth v. Jones, 288 Mass. 150, 152. Minasian v. Aetna Life Ins. Co. 295 Mass. 1, 5. Commonwealth v. Maguire, 313 Mass. 669.

To convict the defendant of manslaughter, the Commonwealth was not required to prove that he caused the fire by some wanton or reckless conduct. Fire in a place of public resort is an ever present danger. It was enough to prove that death resulted from his wanton or reckless disregard of the safety of patrons in the event of fire from any cause.

III. The alleged errors at the trial.

1. There is nothing in the contention that the judge should not have ordered a view of the burned premises, and *402should not have admitted photographs taken after the fire. True, the fire changed the appearance of the place, and the defendant suggests that acts of individuals after the fire also made some changes. But the walls, most of the partitions, and even some of the furniture, remained. The view • enabled the jury to understand the evidence. The photographs were of value as evidence. Any material changes from conditions before the fire could have been shown by evidence.

2. The Commonwealth had the burden of showing that the alleged wanton or reckless failure to care for the safety of patrons was that of the defendant rather than that of some other officer or employee to whom the duty had been entrusted. Criminal responsibility is generally personal, and personal fault must be shown. Commonwealth v. Stevens, 153 Mass. 421. Commonwealth v. Anthony, 306 Mass. 470, 478. Commonwealth v. Beal, 314 Mass. 210, 222. Braga v. Braga, 314 Mass. 666, 672. Until the defendant testified at a late stage of the case, he admitted nothing, and excepted to the introduction of almost every piece of evidence tending to show his control of the corporation or of its premises. The Commonwealth was entitled to introduce in detail facts showing such control. One such fact was that he frequently gave orders to the clerk of the corporation to make and attest records and returns of imaginary meetings and votes. The defendant excepted to the admission of each piece of evidence, but did not take the course, which would have made all such evidence immaterial and unnecessary, of admitting complete control, until he did so in his later testimony. He now complains that the jury were given an unfavorable impression of his character and conduct in matters not relevant to any wanton or reckless conduct. But if he has been prejudiced thereby, he should blame his own insistence upon trying the case “closely,” as the phrase is, with respect to a point that later be had to admit.

3. There is nothing in the point that because the corporation might have been indicted and convicted, the defendant could not be. The defendant was in full control of the *403corporation, its officers and employees, its business and its premises. He could not escape criminal responsibility by using a corporate form.

4. The Commonwealth was properly allowed to show that an exit from the Cocktail Lounge to Shawmut Street and fire doors in the Cocktail Lounge and between that and the older part of the premises, called for by the plans that were approved by the building department of the city of Boston under St. 1907, c. 550, § 12, as amended, had not been provided when the defendant last had knowledge of the premises on November 16, 1942, although he planned to open the Cocktail Lounge the next day; that the mode of construction of the Cocktail Lounge indicated that he did not intend to provide either; and that they had not been provided at the time of the fire. As planned, the fire doors were to be held open by fusible plugs that would melt and allow the doors to close automatically in case of fire. They and the exit might have afforded some protection to persons in the Cocktail Lounge. The violation of such a statute is not negligence per se, but sometimes is evidence of negligence. Richmond v. Warren Institution for Savings, 307 Mass. 483. Kelly v. Hathaway Bakeries, Inc. 312 Mass. 297, 299. Greenway Wood Heel Co. Inc. v. John Shea Co. 313 Mass. 177. Carroll v. Hemenway, 315 Mass. 45, 46-47. Standing by itself, it would not warrant a finding of wanton or reckless conduct. Silver’s Case, 260 Mass. 222, 224. Commonwealth v. Arone, 265 Mass. 128, 131. Carroll v. Hemenway, 315 Mass. 45. People v. Lynn, 385 Ill. 165. Am. Law Inst. Restatement: Torts, § 500, comment e. But it might be considered with other evidence. There was no error in its admission. Commonwealth v. Hawkins, 157 Mass. 551, 553, 554. Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378, 390.

5. The Commonwealth introduced evidence that the electrical system was defective and dangerous. Shortly after the fire started the electric lights went out, leaving the patrons struggling in the dark. What caused the fights to go out, did not appear. There was no evidence that the defendant knew, or had reason to know, of any defect in the *404electrical system. There was no evidence that faulty wiring caused the fire, or bore any causal relation to the deaths. A verdict of guilty could not lawfully have been based upon any such defect. But when the evidence was introduced the judge could not foresee that knowledge on the part of the defendant and some causal relation would not be shown. He had a right to let the Commonwealth begin by proving defective wiring. If the defendant had a remedy, it was by asking the judge to strike out the evidence when it appeared that no causal relation existed and the defendant was not shown to be responsible for any such defect, or by asking the judge to instruct the jury that a verdict of guilty could not be based upon wanton or reckless conduct with respect to the electrical system. No such request was made.

6. Other assignments of error, relied on by the defendant but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion.

Judgments affirmed.

OPINION

JOHNSON, J.,

delivered the opinion for a unanimous Court.

Appellant caused a three-car collision, during which a passenger in one of the other vehicles was killed. The grand jury indicted appellant for criminally negligent homicide, alleging that she had made an unsafe lane change and had failed to keep a proper lookout. A petit jury found appellant guilty and also found that appellant’s vehicle was a deadly weapon. The jury assessed punishment of ten years’ confinement in the Texas Department of Criminal Justice, probated for ten years, and a $10,000 fine. On appeal, the Fourteenth Court of Appeals found the evidence insufficient to sustain the conviction and rendered a judgment of acquittal.1 This Court granted the four grounds raised in the state’s petition for discretionary review.

1. The court of appeals erred in holding that “cell phone usage while operating a vehicle” does not constitute morally blameworthy conduct and does not justify criminal sanctions.

2. The court of appeals erred in presuming that the negligent act in a criminally negligent homicide must itself be an illegal act.

3. The court of appeals erred in holding that the evidence was insufficient to prove criminally negligent homicide where the appellant was traveling less than 39 miles per hour and was 92 feet past the interstate highway entrance ramp at the time that she attempted to cross in front of other vehicles to enter the freeway.

4. The court of appeals erred in holding that the evidence was insufficient to prove criminally negligent homicide where the appellant was admittedly distracted by talking on a cell phone at the time that she attempted to cross in front of other vehicles to enter the interstate highway ramp, which she had already missed by 92 feet.

*191After review, we find that the evidence was legally sufficient to sustain appellant’s conviction for criminally negligent homicide, and we reverse the judgment of the court of appeals.

Facts

At approximately 8:30 p.m. on March 24, 2008, appellant was driving her mid-size SUV in the center lane of the three-lane service road adjacent to Interstate Highway 45 (IH-45) and talking on her cell phone. After hanging up the phone, appellant realized that she had missed the entrance ramp to IH-45, which diverged from the left lane of the service road. Appellant abruptly swerved into the left lane to try to get onto the ramp, even though the beginning of the solid-white-lined area on the pavement between the ramp and the service road, often known as the “safety barrier,” was behind her. There was disagreement at trial between the state’s and appellant’s experts as to how far past the entrance ramp appellant was when she changed lanes, but they agreed that it was after the safety barrier began. The state’s expert testified that it was 92 feet past the entrance to the ramp; appellant’s expert estimated a lesser distance.

As appellant moved abruptly into the left lane, she cut off Cochise Willis, who was driving his three-quarter-ton pickup truck in the left lane of the service road. Willis testified that he was driving at the speed limit — 50 miles per hour-and that appellant was driving more slowly than Willis when she moved into the left lane ahead of him. Willis tried to slow down and get into the center lane, but he could not avoid hitting the rear of appellant’s SUV, slightly to the right of its center. At the time of impact, appellant’s vehicle was almost entirely in the left lane, and Willis’s truck was over the dividing line between the left and center lanes. The collision caused appellant’s vehicle to rotate in a counterclockwise direction, crossing over the safety barrier and onto the entrance ramp itself. The front of appellant’s SUV struck the passenger side of Terrell Hous-ley’s pickup truck, which had just been driven onto the entrance ramp. Chance Wilcox was a passenger in the truck. After the collision, Housley’s truck rotated clockwise, causing it to hit the curb that separates the entrance ramp and the safety barrier and flip over, coming to a stop upside down. As Housley’s truck flipped, Wilcox was ejected, and he died at the scene from trauma to his head and neck. At the same time, the collision with Hous-ley’s truck caused appellant’s SUV to flip onto its left side and skid to a stop. Willis never lost control of his truck. He pulled into the emergency lane of the service road and stopped.

The Court of Appeals’s Opinion

The court of appeals found that the evidence was insufficient to establish the requisite mens rea of criminal negligence, noting that

the State presented evidence of appellant’s use of a cell phone while driving, her unsafe lane change, and her failure to maintain a proper lookout. Only one of the three factors was a moving violation under Texas Law: making an unsafe lane change. However, the State placed primary emphasis on a factor that was not even listed in the indictment as proof of appellant’s negligence: cell phone usage.... [B]y continuing that emphasis in this appeal, the State encourages this court to legislate through judicial fiat. Except under very limited circumstances not at issue in this case, using a cell phone while driving is *192not an illegal activity in Texas.2

Focusing on the prosecution’s presentation of cell-phone use as a primary factor establishing appellant’s criminally negligent behavior, the court of appeals found that the state introduced no competent evidence that cell-phone use while driving increases the risk of fatal accidents and held that, without evidence that such a risk was generally known and disapproved of in the community, no reasonable fact finder could find that using a cell phone while driving turned a simple moving violation into criminally negligent homicide. Thus, the state had failed to establish that appellant ought to have been aware of a substantial and unjustifiable risk that death would result from her actions and that her failure to perceive such a risk was a gross deviation from the standard of ordinary care.

The state argues that, had the court of appeals used the correct standard of review and viewed the evidence in the light most favorable to the verdict, the court would have concluded that the evidence was legally sufficient to sustain the conviction. The state contends that the court of appeals relied on two incorrect theories of law: (1) cell-phone use while driving does not constitute morally blameworthy conduct and therefore does not justify criminal sanctions; and (2) the negligent act in a criminally negligent homicide must itself be an illegal act. The state contends that the court of appeals required evidence of an increased risk of fatal crashes from cellphone use, but such a risk is generally known and disapproved of in the community; the dangers of driving while talking on a cell phone have been well known for years and has even been criminalized in certain situations by the Texas Legislature. And even though appellant violated at least one traffic law when she made an unsafe lane change into the left lane, it is not the law in Texas that the negligent act must be illegal.

Sufficiency of the Evidence

The state’s third and fourth grounds for review challenge the court of appeals’s sufficiency review of the evidence. When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”3 The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury.4 The duty of the reviewing court is simply to ensure that the evidence presented supports the jury’s verdict5 and that the state has presented a legally sufficient case of the offense charged.6 When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record.7

To make a legally sufficient showing of criminally negligent homicide, the state must prove that (1) appellant’s *193conduct caused the death of an individual; (2) appellant ought to have been aware that there was a substantial and unjustifiable risk of death from her conduct; and (3) appellant’s failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances.8 The circumstances are viewed from the standpoint of the actor at the time that the allegedly negligent act occurred.9 Criminal negligence does not require proof of appellant’s subjective awareness of the risk of harm, but rather appellant’s awareness of the attendant circumstances leading to such a risk.10 The key to criminal negligence is not the actor’s being aware of a substantial risk and disregarding it, but rather it is the failure of the actor to perceive the risk at all.11

Conduct that constitutes criminal negligence involves a greater risk of harm to others, without any compensating social utility, than does simple negligence.12 The carelessness required for criminal negligence is significantly higher than that for civil negligence; the seriousness of the negligence would be known by any reasonable person sharing the community’s sense of right and wrong.13 The risk must be “substantial and unjustifiable,” the failure to perceive it must be a “gross deviation” from reasonable care as judged by general societal standards.14 “With criminal negligence, the defendant ought to have been aware of a substantial and unjustifiable risk that his conduct could result in the type of harm that did occur, and that this risk was of such a nature that the failure to perceive it was a gross deviation from the reasonable standard of care exercised by ordinary people.” Williams v. State, 235 S.W.3d 742, 750-51 (Tex. Crim.App.2007). The degree of deviation from reasonable care “is measured solely by the degree of negligence, not any element of actual awareness.”15 In finding a defendant criminally negligent, a jury is determining that the defendant’s failure to perceive the associated risk is so great as to be worthy of a criminal punishment.16

After reviewing the record, we conclude that the state has met its burden of proving all of the elements of criminally negligent homicide. Appellant made an abrupt lane change in front of Willis’s truck, causing that truck to strike the rear of appellant’s SUV, and then causing her SUV to strike Housley’s truck, from which Wilcox was ejected and died. The state has thus shown that appellant, by making an unsafe lane change, caused the death of Wilcox.

The state has also proved that appellant ought to have been aware of the substantial and unjustifiable risk created by her conduct. The court of appeals, focusing on her cell-phone use, found that the state had not proved that appellant ought to be aware of the risk present because the state did not present evidence *194that cell-phone use while driving poses a risk to others. However, the indictment made no mention of use of a cell phone. Rather, the indictment alleged that appellant caused Wilcox’s death by making an unsafe lane change and failing to maintain a proper lookout when she made that lane change. Nor did the jury charge mention appellant’s use of a cell phone. The jury charge read,

Now, if you find from the evidence beyond a reasonable doubt that on or about the 24th day of March, 2008, in Harris County, Texas, the defendant, Jeri Dawn Montgomery, did then and there unlawfully, cause the death of Chance Wilcox, by criminal negligence, namely, while operating a motor vehicle, making an unsafe lane change and failing to keep a proper lookout, causing the defendant’s vehicle to collide with a motor vehicle occupied by Chance Wilcox, then you will find the defendant guilty of criminally negligent homicide, as charged by the indictment.17

Through the testimony of its witnesses and experts, and by cross-examination of appellant’s witnesses and experts, the state presented evidence that: appellant was driving her SUV on the access road of IH-45; the speed limit was 50 miles per hour; appellant was driving more slowly than surrounding traffic; appellant was up to 92 feet past the beginning of the entrance ramp onto IH-45 when she abruptly changed lanes; appellant did not signal the lane change or look for other vehicles approaching in the left lane; and appellant intended to enter IH-45 via the entrance ramp that she had already passed. The state also presented evidence that, just before the accident, appellant was driving and talking on her cell phone and that appellant admitted using the cell phone

had distracted her. As Justice Hudson pointed out in his dissent in the court of appeals, the state had no burden to show that driving while using a cell phone is always risky or dangerous, or that it, of itself, creates a substantial and unjustifiable risk, only that appellant’s use of a cell phone in this case created a substantial and unjustifiable risk because it interfered with her ability to maintain a proper lookout for other vehicles.18

Given these circumstances, we find that a jury could have reasonably concluded that appellant ought to have been aware of the substantial and unjustifiable risk created by her actions. Appellant was driving at speeds high enough to be lethal, should a collision occur. It is common knowledge that failing to maintain a proper lookout and making an unsafe lane change without signaling or checking for upcoming traffic poses a great risk to other drivers on that road and that anyone sharing the general community’s sense of right and wrong would be aware of the seriousness of doing so.

Finally, we hold that the jury could have reasonably found that appellant’s failure to appreciate the substantial and unjustifiable risk, given the circumstances known to her at that time, was a gross deviation from a standard of care that an ordinary person would exercise under the same circumstances. The state presented evidence that appellant had missed the entrance ramp for the highway because she was distracted by talking on her cell phone. Further evidence indicated that, although appellant knew that she had missed the entrance ramp, she still attempted to move to the left lane, cut across the “safety barrier,” and get onto *195the entrance ramp. Both the state’s and appellant’s accident reconstruction experts testified that appellant made an unsafe or “aggressive” lane change into the left lane and that Willis could not have avoided hitting appellant’s vehicle. Willis testified that appellant was driving more slowly than surrounding traffic and did not signal or use her brakes before she changed lanes. From the evidence presented, the jury could have found that appellant failed to perceive the substantial and unjustifiable risk created by her conduct.

Appellant argues that her conduct was not a gross deviation from the ordinary standard of care and that she was subjected to criminal liability for a common traffic accident with fatal results. The court of appeals, again focusing on the lack of evidence presented regarding the dangers of talking on a cell phone while driving, found that the use of a cell phone while driving was such common practice that it would be difficult for a rational fact finder to find it to be a gross deviation from the ordinary standard of care.

The court of appeals mistakes what conduct was alleged to constitute the gross deviation in this case. The gross deviation from the ordinary standard of care argued by the state in this case was not appellant’s use of a cell phone, but rather that appellant made an unsafe lane change and failed to maintain a proper lookout, at least partly as a result of the distraction created by her use of the cell phone. The state was not required to present evidence of the dangers of using a cell phone while driving in order to carry its burden of proof, but such a use of a cell phone may be considered as a factor in determining whether a defendant grossly deviated from the ordinary standard of care. The question of whether appellant’s conduct was a “gross deviation” is a question to be answered by the fact finder and here, a rational jury could conclude that it was. We sustain the state’s third and fourth grounds for review.

Cell Phone Use

In its first ground, the state argues that the court of appeals erred in holding that cell-phone use while driving does not constitute morally blameworthy conduct and does not justify criminal sanctions. The morally blameworthiness of cell-phone use while driving, by itself, is not the issue in this case, and we will therefore not address it. It is within the purview of the legislature, not the courts, to determine what does and does not justify criminal sanctions.19 We dismiss the state’s first ground for review.

Illegality of the Underlying Act

In its second ground, the state contends that the court of appeals erred in presuming that the negligent act in a criminally negligent homicide must itself be an illegal act. We do not read the court of appeals’s opinion to presume that the underlying act must itself be illegal. In footnote 10, the court of appeals listed a number of clearly legal-yet-distracting activities that, under the proper circumstances, may cause negli*196gent driving.20 By including such a list, the court of appeals clearly did not presume that the negligent act must violate Texas law. Instead, in considering whether a finding of a gross deviation from the standard of care was supported by the record, the court of appeals mistakenly focused on the absence in the record of any fact witnesses or scientific studies showing that cell-phone use while driving increases the risk of fatal accidents. We overrule the state’s second ground for review.

Conclusion

We hold that the evidence was legally sufficient to support the jury’s verdict of guilty of criminally negligent homicide. We vacate the judgment of the court of appeals and remand the cause to the court of appeals so that it may address appellant’s remaining points of error.

This is an appeal from the judgment and sentence under a conviction of murder in the second degree. William H. Long, age 13 years, was killed by a shot from a 32-caliber revolver held against his right side by the defendant, then aged 17 years. These youths were on friendly terms at the time of the homicide. The defendant and his mother, while his father and brother were in the U. S. Armed Forces, were residing in Lancaster, Pa., with the family of William H. Long, whose son was the victim of the shooting.

On the evening of February 26, 1945, when the defendant went to a moving picture theater, he carried in *182the pocket of his raincoat a revolver which he had obtained at the home of his uncle on the preceding day. In the afternoon preceding the shooting, the decedent procured a cartridge from his father’s room and he and the defendant placed it in the revolver.

After leaving the theater, the defendant went to a dairy store and there met the decedent. Both youths sat in the rear of the store ten minutes, during which period the defendant took the gun out of his pocket and loaded the chamber to the right of the firing pin and then closed the gun. A few minutes later, both youths sat on stools in front of the lunch counter and ate some food. The defendant suggested to the decedent that they play “Russian Poker”.1 Long replied: “I don’t care; godhead”. The defendant then placed the revolver against the right side of Long and pulled the trigger three times. The third pull resulted in a fatal wound to Long. The latter jumped off the stool and cried: “Oh! Oh! Oh!” and Malone said: “Did I hit you, Billy? Gee, Kid, I’m sorry.” Long died from the wounds two days later.

The defendant testified that the gun chamber he loaded was the first one to the right of the firing chamber and that when he pulled the trigger he did not “expect to have the gun go off”. He declared he had ho intention of harming Long, who was his friend and companion. The defendant was indicted for murder, tried and found guilty of.murder in the second degree and sentenced to a term in the penitentiary for a period not less than five years and not exceeding ten years. A new trial was refused and after sentence was imposed, an appeal was taken.

Appellant alleges certain errors in the charge of the court and also contends that the facts did not justify a *183conviction for any form of homicide except involuntary manslaughter. This contention we over-rule. A specific intent to take life is, under our law, an essential ingredient of murder in the first degree. At common law, the “grand criterion” which “distinguished murder from other killing” was malice on the part of the killer and this malice was not necessarily “malevolent to; the -deceased particularly” but “any evil design in general; the dictate of a wicked, depraved and malignant heart”: 4 Blackstone 199. Among the examples that Blackstone cites of murder is “coolly discharging a gun among a multitude of people”, causing the death of someone of the multitude.

In Pennsylvania, the common.law crime of.murder is divided into two degrees, and murder of-the second degree includes every element which enters into first degree murder except the intention to kill: Commonwealth v. Divomte, 262 Pa. 504, 507; 105 A. 821. When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that “wickedness of disposition; hardness of heart; cruelty; recklessness'of consequences and a mind regardless of social duty” which proved that there was at that time in him “that state or frame of mind termed malice”.2 This court has declared that if a driver “wantonly, recklessly and in disregard of consequences” hurls “his car against another or into a crowd” and death results from that act “he ought to face the same consequences that would be meted out to him if he had accomplished death by wantonly and wickedly firing a gun”: Com. v. Mayberry, 290 Pa. 195, 199; 138 A. 686, citing cases from four jurisdictions.

In Com. v. Hillman, 189 Pa. 548; 42 A. 196, the charge of the court below was approved by this court. In that charge appears this statement: “Malice in law *184means a depraved and wicked heart that is reckless and disregards the rights of others. Reckless conduct that results in the death of another is malice. To illustrate that: If a man fires a gun into a crowd and kills another it is murder, because the fact of the reckless shooting of a gun into a crowd is malice in law. That wicked and depraved disposition and. that recklessness and disregard of human life is malice.”

In Com. v. Knox, 262 Pa. 428; 105 A. 634, the following instructions by the trial judge in a murder case was held by this court not to be error: “When a man uses a gun loaded with powder and shot and aimed at a vital part of the body of another and discharges it, he must be presumed to know that death is likely to follow.” In Com. v. Arnold, 292 Pa. 210 at 213; 140 A. 898, this court said: “Malice will be implied from conduct, recklessness of consequences, or the cruelty of the crime”.

Appellant has assigned for error certain excerpts from the charge of the court. The charge in its entirety affords no grounds for the reversal of the judgment and sentence. Certain excerpts if they stood alone might have misled the jury to the defendant’s prejudice. For example, the trial judge said: “All felonious homicide or illegal or unlawful homicide is presumed to be malicious, that is, murder of some degree, until the contrary appears in the evidence.” The second sentence after this one reads as follows: “Accordingly, when a felonious or unlawful homicide is proved, malice is presumed to have existed . . . as a presumption of fact”. A homicide may be unlawful without being presumably malicious. The homicide known as involuntary manslaughter occurs when death is caused by an unlawful act or by a lawful act' done in an unlawful manner. While there do appear statements in some of the reports that “all unlawful homicide is presumed to be malicious and, therefore, murder”, careful trial judges always qualify that statement, as Chief Justice Agnew did in Com. v. Drum, 58 Pa. 9 at page 17 where he said; “All murder , . . in-*185eludes all unlawful killing under circumstances of depravity of heart, and a disposition of mind regardless of social duty”. Trial judges should make it clear to the jury that an unlawful killing in order to constitute murder must result from an intentional, felonious act and not merely from an inadvertent or negligent act. The trial judge in a sentence which intervened between the two sentences above quoted, stated the applicable principle of law correctly as follows: “This presumption of malice does not rise, however, until the Commonwealth has made out a prima facie case of felonious homicide”. This statement was in accord with what Mr. Justice Steen, speaking for this court, said in Com. v. Wucherer, 351 Pa. 305 at 310; 41 A. 2d 574, to wit: “It is important at the outset to bear in mind that the so-called presumption of malice does not arise until the Commonwealth has made out a prima facie case of felonious homicide”. Defendant’s rights were fully protected by the charge in its totality.

However, the charge was in several respects prejudicial to the Commonwealth. For example, the trial judge said: “It is the duty of the Commonwealth to prove that the killing was unlawful and intentional, and if the evidence taken as a whole raises reasonable doubt in the minds of the jury as to whether the killing was accidental or intentional, you must acquit the accused, for the reason that, the Commonwealth has failed to sustain its case.” This instruction was tantamount to saying that the Commonwealth in order to obtain the conviction of the defendant of any crime included in the indictment had to prove him guilty of murder in the first degree, for if the killing was intentional, it would have been murder in the first degree. The alternative presented to the jury by the instructions was limited to an intentional killing or to an accidental killing. The jury found that the killing was neither intentional nor accidental but that it was a malicious killing though without a specific intent in the killer to take life, and that, therefore, it was murder in the second degree.

*186The trial judge also erred in charging that “A person on trial for murder cannot be convicted of any offense if the testimony shows that the death was accidental”. Death may be accidental though it resulted from a malicious act intentionally committed: In such a case the means were not accidental; the result was.3 In the instant case if the defendant had by some negligent, unintentional act, caused Long to fall off the stool at which he was sitting in the store and if, as a result of that fall, Long had sustained a fatal injury, both the initial act and the death might be correctly characterized as accidental. But when the defendant knowing that a revolver had at least one loaded cartridge in it, pressed the muzzle of that revolver to the side of Long and pulled the trigger three, times, his act cannot be characterized as accidental, even if his statement that he had no intention-to hill Long is accepted (as the jury accepted it). The way the trial judge used the word' “accidental” throughout the charge must have been confusing to the jury and might easily have misled it into acquitting the accused on the theory that since the death of Long was accidental, “the defendant cannot be convicted of any offense”, (as the trial judge said). The latter should have made it clear to the jury that even though Long’s death might have been unintended and, therefore, accidental, the evidence showed that the act which caused the victim’s death was not accidental. This was the view the jury took of the case despite the court’s instructions.

In another portion of the charge, the trial judge said to the jury: “If you believe the testimony of the defendant, that the shot was accidental and without intention *187on his part, and that the shot accidentally and without intention on his part struck the body of William H. Long, from the effects of which he afterwards died, then you should acquit the defendant". There was not in this record any evidence which would warrant a finding that “the shot was accidental”. Later the judge instructed the jury that “If the killing was accidental, although done with a deadly weapon, it could not be said to be intentional or wilful; and, if neither intentional nor wilful, the crime of murder is not made out”. What we have already said on this phase of the case sufficiently reveals the error in these instructions. Of such and similar errors, the appellant cannot complain; they were prejudicial only to the Commonwealth.

This court said in Sears v. Birbeck, 321 Pa. 375, 383; 184 A. 6: “It is a primary duty of the trial judge—a duty that must never be ignored—in charging a jury to clarify the issues so that the jury may .comprehend the questions they are to decide.” When the issues in either a criminal or a civil case are not clarified in the judge’s charge, the charge is of very little value in the administration of justice though it may contain no prejudicial error. A charge may be technically correct and yet be to the jury meaningless and useless. Many trial judges employ concrete illustrations 4 to help make clear to the jury what the issues are which’the jury is to decide and *188how to apply legal principles to the facts so as to reach a just verdict.

The killing of. William H. Long by this defendant resulted from an act intentionally, done'by the latter, in reckless and wanton-disregard of the consequences which were at least sixty per cent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long’s body. This killing was, therefore, murder, for malice in the sense of a wicked disposition is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others. The fact that there was no motive for this homicide does not exculpate the accused. In a trial for murder proof of motive is always relevant but never necessary.

All the assignments of error are over-ruled and the judgment is affirmed. The record is remitted to the court below so that the sentence imposed may be carried out.

OPINION OF THE COURT

Tom, J.P.

This appeal raises the issue of whether a death resulting from defendant’s operation of a motor vehicle at a high rate of speed through the streets of lower Manhattan, while severely impaired by alcohol intoxication, supports his conviction of depraved indifference murder (Penal Law § 125.25 [2]). The law in effect at the time defendant was convicted is delineated by People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]), and we hold that the evidence is sufficient to sustain the judgment under the Register standard, the verdict is consistent with the weight of the evidence, and the trial court properly declined to entertain the defense of intoxication to negate the culpable mental state of depraved indifference or to accept expert *183testimony concerning defendant’s chronic alcoholism. Were we to analyze this case under the standard of People v Feingold (7 NY3d 288 [2006]), as urged by defendant, we would reach the same result.

On June 14, 2004 at 2:00 a.m., Robert Smith drove from his home in Nassau County to the Fulton Fish Market, where he ran a wholesale seafood business. He was accompanied by his daughter, Judith Gubernikoff, 37 years of age, who had begun working for the family business that month after moving from Chicago to New York with her husband, Dr. George Guberni-koff, and their three young children so that Dr. Gubernikoff could accept a position at a Long Island hospital. Robert Smith testified that it was his custom to take the Williamsburg Bridge into Manhattan and drive south along Allen Street, which is a six-lane, divided roadway with a median separating the northbound and southbound lanes. Smith stated that he customarily traveled at 25 miles an hour to coincide with the timing of the traffic signals; however, he had no recollection of the events of that fatal morning.

At about 2:45 a.m., Adam Falek was in his pickup truck waiting at a red light on Waverly Street. As he made a right turn onto Broadway after the light changed, a blue van traveling south on Broadway came “flying” through the red light and almost hit his vehicle, causing him to swerve to the right to avoid a collision. Falek followed the blue van, pulling up alongside it at the next light, and began to yell at the driver, who paid no attention. Falek observed that the van’s driver was rolling his head and looked “disheveled,” “incoherent,” “out of it,” and “totally wasted.” Without even looking over, he “just punched the gas and took off,” stopping only momentarily after hitting a parked car about two blocks later. Falek continued to follow the van because it was going in his direction. However, he broke off the chase after the van ran through two more red lights: “he was going a high rate of speed and I was afraid, so I said it’s not worth it.” Falek estimated that, at the point he decided to discontinue the pursuit, his own vehicle was traveling at “[fjifty, sixty miles an hour,” and the distance between the two vehicles was increasing.

At approximately 2:55 a.m., Martin Clemente was in his Dodge Caravan in the westbound lane of Grand Street, facing the intersection with Allen Street, waiting for the light to change. There were still people coming back from the Hispanic Day parade crossing Grand Street directly in front of his vehicle. Look*184ing straight ahead towards the traffic light with an unobstructed view of the intersection, he observed a Saturn proceeding south on Allen Street at about 30 miles an hour into the intersection. Suddenly, a blue minivan “came out of nowhere” from the easterly direction on Grand Street, going “very fast,” and without braking or slowing down entered the intersection against a red light. The front end of the van struck the passenger side of the Saturn. The force of the impact caused the minivan to spin around and come to a stop facing west in the intersection. “The Saturn went up in the air,” propelled end over end, “doing a three-sixty, hit the floor, did another three-sixty,” and landed on the fence of the divider on the northbound side of Allen Street.

After calling 911 to report the accident, Clemente went over to the Saturn. Smith appeared to be in shock, and Judith Gu-bernikoff was unconscious. Her seat was “crushed together” with the driver’s seat, and both seats were tilted backwards, “so she was trying to gasp for air with her head back.” From a distance of about 25 feet, Clemente watched defendant get out of the driver’s side of the minivan. He appeared “dizzy” and was “walking around in circles.”

At the same time, Coss Marte, who was standing in the vicinity with some friends, heard a loud crash and ran to the intersection of Allen and Grand Streets, where he saw the blue van in the middle of the intersection and the Saturn on top of the fence located on the median island. Marte also called 911. As the sound of ambulance sirens became audible, defendant attempted to “run away,” “zigzagging” along Grand Street towards Eldridge Street. Marte chased defendant and, a minute or two later, Marte and another man grabbed defendant and brought him back to the accident scene. Marte and the other man had to “grab” defendant’s arms because he was attempting to get away. Although defendant was mumbling incomprehensibly, he did not appear to have sustained injury.

Officer Christopher Owen, who responded to the 911 call, testified that defendant appeared disheveled, his clothes were messy, his eyes were bloodshot and a strong odor of alcohol emanated from his person. The officer “had to prop him up with my right hand under his arm to walk him towards the ambulance, and he was stumbling, stumbling as we walked.” The officer added, “He appeared very confused, disoriented, seemed like he didn’t know what was going on,” and was unresponsive to questioning. Apart from “some blood coming from his nose,” defendant did not appear to be injured.

*185Ms. Gubernikoff was brought to Bellevue Hospital’s emergency room, where she was treated by Dr. Richard Moreno. A thoracotomy was performed, which revealed that she had sustained a hemopericardium—the accumulation of blood between the heart and the pericardial sac surrounding it. Because the injury prevented her heart from contracting appropriately, the pericardium was opened and the blood drained. At that point, Dr. Moreno observed a hole in the right atrium of the heart, an injury that is consistent with blunt force trauma sustained in a motor vehicle collision. Dr. Moreno testified that the force generated in the thoracic cavity necessary to cause the heart to rupture was “high velocity.” While performing surgery to repair the hole, the medical team was unable to maintain blood pressure, and Gubernikoff was pronounced dead on the operating table at 4:50 a.m.

Robert Smith was also taken to Bellevue Hospital. A CAT scan revealed that blood had accumulated in his chest and behind the abdominal organs, near his kidneys. His injuries included a lacerated intercostal artery, and the internal bleeding required surgical intervention, without which he would have bled to death. Smith, who awoke three weeks later, remained in the intensive care unit until June 30, 2004. He was discharged from the hospital on July 9 and treated at a rehabilitation center for another two weeks. He was unable to return to work for approximately six months and experienced memory deficits, difficulty walking and climbing, and reduced stamina for months after the crash.

After the victims were taken to the hospital, an accident investigation team arrived at the accident scene. Detective Patrick Rooney, an expert in the field of collision investigation and reconstruction, observed no pre-crash skid marks, from which he deduced that neither driver had applied the brakes before the vehicles collided. The absence of skid marks prevented him from calculating the speed of the van. In addition, the doors and roof of the Saturn had been cut off to extricate the passengers, precluding calculation of its speed from “crush evidence.” However, judging from the damage sustained by both vehicles and their respective weights (2,500 pounds for the Saturn and 4,300 pounds for the Ford Windstar minivan), the distance the Saturn traveled following the collision, its abrupt change of direction from south to southeast upon impact and the fact that it became airborne, Rooney concluded that the van must have been going from 50 to 55 to as much as 60 miles an hour when *186the vehicles collided. He further testified that both occupants of the Saturn were wearing seat belts, which had been cut to facilitate extrication. From the absence of any imprint on the van’s safety harness, meaning that it did not lock on impact, the witness concluded that defendant was not wearing his seat belt at the time of the collision.

Two blood samples were obtained from defendant at about 5:00 a.m. on the morning of the accident. Since he had passed out, the samples were taken with his implied consent by an emergency room doctor. Analysis of the two samples revealed a blood alcohol concentration of .25% and .27%, respectively. It was stipulated that defendant had previously attended an intoxicated driver rehabilitation course.

Defendant presented testimony from Nicholas Bellizzi, a civil engineer and expert in the field of engineering and accident reconstruction. Bellizzi testified that, in the absence of skid marks, there are two methods of accident reconstruction used to determine speed: conservation of kinetic energy and conservation of linear momentum. The first method is based on a calculation of the amount of force required to create the damage caused to the vehicles in a collision. Due to the damage done to the Saturn in removing the passengers, he was unable to use the conservation of kinetic energy method to calculate the van’s speed. Using the conservation of linear momentum method, he estimated that the van had been traveling between 36 and 37 miles an hour and the Saturn had been traveling about 13 miles an hour at the time of impact, with a five percent margin of error. Bellizzi made his calculations using the heaviest Saturn model, which weighed 900 pounds more than the Smith vehicle. He worked from police diagrams and photographs without conducting any examination of the vehicles. From offset crash barrier tests performed by the Insurance Institute for Highway Safety, he opined that defendant’s van would have sustained more severe damage to the occupant compartment had it been traveling at 55 miles an hour and that defendant, unrestrained by a seat belt, would have been propelled through the windshield. However, he conceded that vehicle damage inflicted by an offset crash would be greater since a smaller area of the vehicle absorbs the impact. The impact during an offset crash test is deliberately confined to the driver’s side and not distributed over the full frontal width as in the case of a “frontal barrier impact” (such as the collision herein), where the entire front of the car strikes the barrier. Nor, he conceded, are offset crash *187tests designed to simulate the collision of vehicles in different weight classes. Bellizzi did not take into account that the Saturn had flipped over because the conservation of linear momentum method does not utilize such data. Finally, he did not estimate how far the Saturn might have traveled had it not come into contact with the median fence, although from the minimal damage to the fence he concluded that it would not have traveled much farther.

The trial court, in a nonjury trial, refused to permit a psychologist to testify that, based on his examination, defendant suffered from chronic alcoholism, rejecting defendant’s argument that this condition bore on his capacity to formulate the mens rea necessary for depraved indifference murder. Rather, the court held that voluntary intoxication is not a material consideration with respect to a crime involving reckless behavior.

The court found defendant guilty of murder in the second degree for causing the death of Judith Gubernikoff as a result of his reckless and wanton conduct. The court further found defendant guilty of assault in the first degree for “causing serious physical injury to Mr. Robert Smith that was occasioned by the same recklessness and indifference to human life that resulted in Mrs. Gubernikoff s death.” Defendant was also found guilty of all lesser noninclusory concurrent counts in the indictment— vehicular manslaughter in the second degree, vehicular assault in the second degree and assault in the second degree. On July 29, 2005, the court sentenced defendant to a cumulative concurrent term of imprisonment of 17 years to life.

On appeal, defendant contends that the evidence is insufficient to sustain conviction of murder in the second degree and assault in the first degree because it failed to establish that his conduct was so morally deficient and devoid of concern for life as to warrant exposing him to the same criminal liability that the law imposes for intentional conduct (citing People v Payne, 3 NY3d 266, 271 [2004]). Relying on People v Feingold (7 NY3d 288, 296 [2006], supra), he argues that the evidence fails to show, even circumstantially, that he was capable of formulating the mens rea that delineates depraved indifference murder because his extreme intoxication rendered him “incapable of possessing the culpable mental state necessary to prove depraved indifference” (quoting People v Coon, 34 AD3d 869, 870 [2006]). He maintains that the trial court erred in refusing to receive relevant testimony concerning his chronic alcoholism. *188Finally, defendant asserts that even when examined under the pre-Feingold standard of Register, his conduct falls far short of the extreme recklessness of drivers found similarly culpable, who generally appeared to be well aware of the risks they posed to others (e.g. People v Gomez, 65 NY2d 9 [1985] [driving on sidewalk at high speed]; People v Williams, 184 AD2d 437 [1992], lv denied 80 NY2d 935 [1992] [high-speed chase through construction site]). Defendant’s contentions are unavailing.

Depraved indifference murder is committed when, “[u]nder circumstances evincing a depraved indifference to human life,” a person “recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25 [2]). Similarly, assault in the first degree under a depraved indifference theory is committed when, “[u]nder circumstances evincing a depraved indifference to human life,” a person “recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person” (Penal Law § 120.10 [3]). A person acts recklessly “when he is aware of and consciously disregards a substantial and unjustifiable risk” (Penal Law § 15.05 [3]). The law in effect at the time of defendant’s trial did not evaluate depraved indifference under the subjective mens rea standard announced in Feingold (7 NY3d 288 [2006], supra), but instead referred to an objective standard reflected by the “factual setting in which the risk creating conduct must occur” (see Register, 60 NY2d at 276). Prior to Feingold, our jurisprudence had not progressed to the point where recklessness had been abandoned in favor of the mens rea of depraved indifference to human life, and then only by a closely divided Court of Appeals, whose dissenters saw no reason to overrule Register (see 7 NY3d at 300 [Ciparick, J., dissenting], 301 [Kaye, Ch. J., dissenting], 305 [Graffeo, J., dissenting]).

Defendant never objected that the trial court was required to find that he acted with a mental state beyond recklessness or that depraved indifference referred to anything other than the circumstances under which the risk-creating conduct took place. Indeed, in his motion to dismiss at the conclusion of the People’s case after the close of evidence, defendant explicitly cited Register, arguing merely that the People had failed to establish his commission of the crimes charged under circumstances evincing a depraved indifference to human life. This objection did not suffice to apprise the trial court of *189the contention now advanced by defendant that depraved indifference must be evaluated subjectively from his mental state and not objectively from the surrounding circumstances (see People v Hines, 97 NY2d 56, 62 [2001]; People v Gray, 86 NY2d 10, 20-21 [1995]; People v Lawrence, 85 NY2d 1002, 1004 [1995]). Furthermore, the Court of Appeals’ purpose in effecting this change in the law was “to dispel the confusion between intentional and depraved indifference murder, and thus cut off the continuing improper expansion of depraved indifference murder” (Policano v Herbert, 7 NY3d 588, 603 [2006] [change in the law not retroactively applicable to convictions that have become final upon exhaustion of appellate review]). The People’s reliance “on Register’s objectively determined degree-of-risk formulation” (id. at 604) in this matter does not implicate such concerns since there is no suggestion that defendant harbored any intent to cause harm. Thus, the court’s evaluation of the sufficiency of proof according to the Register standard, which represented the prevailing law at the time defendant was convicted (see People v Woods, 36 AD3d 525, 526 [2007], Iv denied 8 NY3d 951 [2007]), went unchallenged, and its failure to apply a mens rea standard, as now urged, is unpreserved for review (see id., citing Gray, 86 NY2d 10 [1995], supra-, see also People v Orcutt, 49 AD3d 1082, 1085 [2008]; People v Zephirin, 47 AD3d 649 [2008]), and we decline to reach the issue in the interest of justice.

Under Register, depraved indifference murder requires that a defendant’s act be imminently dangerous, present a very high risk of death to others and be committed under circumstances that evince a wanton indifference to human life or a depravity of mind (see Register, 60 NY2d at 274). The requirement of depraved indifference refers neither to the mens rea nor to the actus reus; rather, it refers to “the factual setting in which the risk creating conduct must occur” (id. at 276).

The evidence adduced in this case overwhelmingly supports defendant’s conviction of depraved indifference murder and depraved indifference assault. Having chosen to drive while heavily intoxicated, defendant proceeded to drive in an extremely reckless manner, creating a grave risk of death to pedestrians and other drivers in a densely populated area of lower Manhattan.

The People’s proof showed that defendant was driving at a speed of between 50 and 60 miles an hour and speeding through red lights before entering the subject intersection against a red *190traffic signal and plowing into Smith’s Saturn. Defendant was operating a motor vehicle while, by his own admission, “barely conscious due to his intoxication,”* and analysis showed his blood alcohol level was close to three times the legal limit. Falek observed defendant “flying” through several red lights and hitting a parked car, and Clemente observed defendant’s van coming out of nowhere, traveling “very fast” as it entered the intersection. Detective Rooney, based on his training and experience, estimated that the van had been traveling at 50 to 55 miles an hour, and possibly as high as 60 miles an hour, an opinion supported both by the damage to the vehicles and by the testimony of eyewitnesses. The impact between defendant’s minivan and Smith’s Saturn was sufficiently severe to cause the Saturn to become airborne and flip end over end two times before landing on top of a fence located on the median island. Defendant made no attempt to brake before hitting the Saturn, as indicated by the absence of pre-crash skid marks.

Defendant drove not only at a high rate of speed but dangerously, as evinced by his striking a parked car and nearly striking Falek’s pickup truck before colliding with the Saturn. Defendant narrowly avoided striking Falek’s vehicle under much the same circumstances under which he struck the Smith vehicle moments later—speeding through a red light toward a vehicle that was passing through the intersection with the right-of-way. Just as defendant made no apparent effort to avoid the collision with Smith’s Saturn, he made no effort to avoid Falek, who was forced to swerve to the right to get out of the way. The fact that defendant continued driving in the same manner after almost striking Falek—indeed, reacting to Falek’s attempt to get his attention by “punching]” the gas pedal and speeding off again—demonstrated a depraved disregard of the very high risk of death or serious physical injury that his conduct posed to others. Thus, the evidence supports defendant’s conviction of depraved indifference murder and assault (see People v Gomez, 65 NY2d 9 [1985], supra [defendant’s excessive rate of speed and failure to brake while proceeding along a busy city street and partly onto its sidewalk satisfied depraved indifference element of crime]; People v Hoffman, 283 AD2d 928 [2001], lv denied 96 NY2d 919 [2001] [drinking and driving, excessive rate of speed, disobeying traffic signals, and failing to brake before he broadsided vehicle, killing and injuring the passengers *191therein, legally sufficient evidence of depraved mind murder]; People v Padilla, 197 AD2d 747 [1993], lv denied 82 NY2d 928 [1994] [excessive rate of speed, failure to brake or take other evasive action, and decision to get behind the wheel of vehicle after becoming intoxicated, legally sufficient evidence of depraved mind murder]).

Further, while extremely intoxicated, defendant was not so impaired that he was unaware of what he had done, as indicated by his attempt to flee from the scene of the crash and his struggle with those who thwarted his escape. Moreover, it was conceded that defendant had previously attended a rehabilitative course for intoxicated drivers, which certainly would have alerted him to the grave danger that drinking and driving poses to others.

The verdict comported with the weight of the evidence, and the trial court properly credited the speed estimates proffered by the People’s witnesses. The import to be accorded to expert testimony is generally within the province of the trier of fact (see People v Schwartz, 21 AD3d 304, 309 [2005], lv denied 7 NY3d 763 [2006]), which may determine whether to accept or reject it (see People v Drake, 7 NY3d 28, 33 [2006]). The trial court properly assessed the probative value of the witnesses’ conflicting testimony (see People v Bleakley, 69 NY2d 490, 495 [1987]) and was warranted in rejecting defendant’s expert’s calculations and crediting the testimony of the People’s eyewitnesses and an experienced police accident investigator that the minivan’s speed was from 50 to 55 to as much as 60 miles an hour at the time of impact. When he first spotted defendant’s van, Falek described it as “flying” through the red light, and estimated its speed at 50 to 60 miles an hour as it sped away. Falek pursued defendant’s van for some distance and was in an excellent position to assess its speed from that of his own vehicle. He testified that, at the time he gave up his pursuit, his own vehicle was traveling at a speed of 50 to 60 miles an hour, and the distance between the two vehicles was increasing. While the van’s speed was contested by defendant’s expert, Bellizzi, who estimated a modest 36 to 37 miles an hour, he did not personally inspect the vehicles. His calculation utilized an exaggerated weight of the Saturn and employed a mathematical model of “linear momentum” that did not account for the fact that the vehicle had flipped over. The result of Bellizzi’s computation was only as good as the variables that went into it. His determination of the critical “point of impact” (from which *192all the other measurements flowed) was itself flawed in that it relied upon the location of scuff marks, the exact coordinates of which were unavailable.

The argument advanced by defendant that the element of depraved indifference to human life “may be negatived by evidence of intoxication,” was explicitly rejected in Register, which holds that depraved indifference “is not an element in the traditional sense but rather a definition of the factual setting in which the risk creating conduct must occur—objective circumstances which are not subject to being negatived by evidence of defendant’s intoxication” (60 NY2d at 276). Furthermore, Penal Law § 15.05 (3) expressly precludes evidence of intoxication as a defense to a reckless crime, providing that “[a] person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly.” Thus, defendant’s intoxication at the time of the collision, no matter how debilitating, is immaterial, as is his history of chronic alcoholism, and the trial court properly declined to consider such evidence.

The act of driving a vehicle while in a highly intoxicated state, at high speed, on city streets, ignoring traffic signals and failing to stop after striking a parked vehicle, demonstrates reckless conduct that created a grave risk of death to others so as to constitute depraved indifference to human life.

Defendant did not preserve his objection to the trial court’s evaluation of the evidence under the Register standard, and we decline to review it in the interest of justice. As an alternative holding, we further reject, on the merits, defendant’s argument that he was incapable of forming the mens rea required for depraved indifference murder. Even subjecting his conviction to analysis under Feingold, as defendant now urges, we conclude that the evidence nevertheless supports a finding that his conduct evinced a depraved indifference to human life. Operation of a vehicle weighing in excess of two tons at a high rate of speed on city streets while highly intoxicated is the very epitome of depraved indifference to human life, culpably equivalent to “shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions’ cage in the zoo” (Payne, 3 NY3d at 272 [internal quotation marks omitted]). It demonstrates “an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous harm results or not” (Feingold, 7 NY3d at 296 [internal quotation marks omitted]). People v Coon (34 AD3d 869, 870 [2006]), relied upon by the *193concurrence, is distinguishable. There, the defendant, in a state of cocaine intoxication delirium, assaulted his sister with a knife. The Third Department held that defendant was too intoxicated to possess the culpable mental state necessary to sustain conviction for a depraved indifference offense.

Here, defendant’s mental state at the time of the collision, as attested by numerous witnesses, is not dispositive; rather, culpability is appropriately assessed at the time defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication. The mens rea of depraved indifference in this case is established by circumstantial evidence demonstrating that defendant made a conscious decision to drink and then, after consuming an excessive amount of alcohol to the point of becoming “totally wasted,” to drive on city streets at a high rate of speed through red traffic lights, thereby creating a grave risk of death to pedestrians and occupants of other vehicles. The distinction between depraved indifference and intentional conduct does not detract from the wisdom of the observation aptly made by the Court of Appeals in Register:

“In utilitarian terms, the risk of excessive drinking should be added to and not subtracted from the risks created by the conduct of the drunken defendant for there is no social or penological purpose to be served by a rule that permits one who voluntarily drinks to be exonerated from failing to foresee the results of his conduct if he is successful at getting drunk” (60 NY2d at 280-281).

Defendant’s depraved indifference is further supported by his comprehension of the dangers of drinking and driving. Having stipulated to attending an intoxicated driver rehabilitation course, there is record support for the conclusion that defendant was well aware of the risk that drunk driving posed to others. Thus, we conclude that the sufficiency and weight of the evidence prove beyond a reasonable doubt, even under Feingold, that defendant engaged in reckless conduct that created a grave risk of death to others and that he disregarded such risk under circumstances evincing a depraved indifference to human life, thereby causing the death of Judith Gubernikoff and serious physical injury to Robert Smith.

Accordingly, the judgment of the Supreme Court, New York County (Richard D. Carruthers, J.), rendered June 29, 2005, convicting defendant, after a nonjury trial, of murder in the *194second degree, assault in the first degree, vehicular manslaughter in the second degree, assault in the second degree, and vehicular assault in the second degree, and sentencing defendant to concurrent terms of 17 years on the murder conviction, 15 years on the first-degree assault conviction, 7 years on the second-degree assault conviction, 2V3 to 7 years on the vehicular manslaughter conviction, and U/s to 4 years on the second-degree vehicular assault conviction, should be affirmed.

McGuire, J. (concurring).

I agree with the majority that defendant’s challenge to the sufficiency of the evidence, to the extent it is based on the holding in People v Feingold (7 NY3d 288 [2006]) that depraved indifference to human life is a culpable mental state, is not preserved for review. At defendant’s trial, the clear understanding of the court and the parties, consistent with the holding in People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]), was that the only mental state required for the depraved indifference murder and assault counts was recklessness. Defendant made no argument or protest to the contrary. For this reason, defendant is wrong in contending that his current claim that depraved indifference is a culpable mental state is preserved for review merely because the court, in the course of ruling on a different issue that was in dispute, correctly stated the contrary holding in Register (see People v Colon, 46 AD3d 260, 263 [2007] [ruling by trial court on issue of law did not preserve issue for review when court’s ruling was not made in response to a protest by a party]). I also agree with the majority that we should not review this unpre-served claim in the interest of justice. To the extent defendant is claiming on this appeal that the evidence was legally insufficient even when evaluated under the Register standard, I agree with the majority that the evidence was legally sufficient.

Although there was no jury to be instructed, the clear understanding of the parties that recklessness was the only mental state required for these crimes renders this case indistinguishable from a jury trial in which the jury is charged, without objection, under an incorrect or subsequently invalidated standard (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Johnson, 43 AD3d 288, 291-292 [2007], revd on other grounds 10 NY3d 875 [2008]). Because for this reason we must weigh the evidence in light of the elements of the depraved indifference crimes as they were defined in Register, I agree with the majority that the verdict convicting defendant of those crimes is not against the weight of the evidence.

*195After making clear that it is not reviewing in the interest of justice defendant’s unpreserved challenge under Feingold, the majority alternatively holds as follows: “Even subjecting [defendant’s] conviction to analysis under Feingold, ... we conclude that the evidence nevertheless supports a finding that his conduct evinced a depraved indifference to human life.” We need not and should not decide, however, whether the evidence is sufficient under Feingold. By not deciding that issue, we would avoid the need to address and decide the question of law that is at the core of defendant’s challenge to the sufficiency of the evidence under Feingold: whether voluntary intoxication remains irrelevant as a defense in a prosecution for depraved indifference murder.

Under the last sentence of Penal Law § 15.05 (3), a person who is unaware solely by reason of voluntary intoxication that his conduct creates a particular risk nonetheless acts recklessly with respect to that risk. In Register, this sentence played a decisive role in the Court’s conclusion that the requirement of conduct evincing a depraved indifference to human life “does not create a new and different mens rea . . . which can be negatived by evidence of intoxication” (60 NY2d at 279; see also id. at 275-276).

However, because voluntary intoxication does not negate the mens rea of recklessness, it hardly follows that it does not or cannot negate the distinct mens rea of depraved indifference, “an additional requirement of the crime—beyond mere recklessness and risk—which in turn comprises both depravity and indifference” (People v Suarez, 6 NY3d 202, 214 [2005]; see Feingold, 7 NY3d at 294). If voluntary intoxication remains irrelevant under Feingold as a defense to a depraved indifference prosecution, it must be that an individual can be depravedly indifferent to a risk without being aware of it. How that could be is far from obvious. Notably, as defendant stresses, a panel of the Third Department has concluded that voluntary intoxication can negate the mens rea of depraved indifference (People v Coon, 34 AD3d 869, 870 [2006] [“as defendant was too intoxicated to form a specific criminal intent, he also would be incapable of possessing the culpable mental state necessary to prove depraved indifference”]).

As I read the majority’s opinion, it does not decide this question sub silentio. After all, although it correctly notes the specific holding of Register on the irrelevance of voluntary intoxication in a prosecution for depraved indifference murder, it does not *196mention, let alone discuss, the issue of whether that holding remains good law after Feingold. Nor does the majority mention that defendant argues at length that under Feingold the mens rea of depraved indifference can be negated by evidence of intoxication, or state whether it agrees with the conclusion of the Third Department in Coon 1 Clearly, moreover, the issue is best left for another day.

Relatedly, I would reject as unpreserved defendant’s current claim that he was deprived of his constitutional right to present a defense because the trial court improperly precluded the testimony of his expert regarding his chronic alcoholism. At trial, defendant never alerted the trial court to his current claim that the testimony related to a depraved indifference mens rea. Rather, defendant argued that the testimony bore on the mens rea of recklessness and on whether the objective circumstances surrounding his reckless conduct rose to the level of depraved indifference. Having never protested that the testimony related to a depraved indifference mens rea, defendant’s claim is not preserved for review (CPL 470.05 [2]; People v Johnson, 43 AD3d at 291-292, revd on other grounds 10 NY3d 875 [2008]), and I would not review it in the interest of justice.

I disagree in part with the majority’s statement that “defendant’s mental state at the time of the collision ... is not dis-positive; rather, culpability is appropriately assessed at the time defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication.” A defendant’s actions prior to the commission of the actus reus allegedly constituting the crime charged certainly can shed light on his mens rea at the time of the actus reus, but the defendant’s guilt turns on what his mens rea was at the time of the actus reus (cf. People v Gallagher, 69 NY2d 525 [1987]). I agree that defendant’s mens rea at the exact moment of the collision is not determinative. The focus, however, must be on defendant’s mens rea when he engaged in the conduct—which included driving at high speed on city streets through red lights—that caused the *197victim’s death.2 Thus, “culpability is appropriately assessed” at that time, not at any earlier point in time when, according to the majority, “defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication.”

I also disagree that any “conscious decision to drink” defendant made “inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication” (emphasis added). This unexplained assertion that defendant’s operation of a motor vehicle while in a state of extreme intoxication was the inevitable consequence of some earlier decision is unsupported by the evidence and contrary to common experience. Finally, no testimony was elicited at trial about defense counsel’s contention in his memorandum of law that the evidence at trial would prove that defendant was “barely conscious due to his intoxication” (emphasis deleted). Accordingly, the majority errs in considering that contention to be evidence (indeed, an admission by defendant) that he was “barely conscious” as a result of his intoxication.

Friedman and Williams, JJ., concur with Tom, J.P.; McGuire, J., concurs in a separate opinion.

Judgment, Supreme Court, New York County, rendered June 29, 2005, affirmed.

Opinion

COBEY, Acting P. J.

These are appeals by Jonathan Earl Stamp, Michael John Koory and Billy Dean Lehman, following jury verdicts of guilty of robbery and murder, both in the first degree. Each man was given a life sentence on the murder charge together with the time prescribed by law on the robbery count.

Defendants appeal their conviction of the murder of Carl Honeyman who, suffering from a heart disease, died between 15 and 20 minutes after Koory and Stamp held up his business, the General Amusement Company, on October 26, 1965, at 10:45 a.m. Lehman, the driver of the getaway car, was apprehended a few minutes after the robbery; several weeks later Stamp was arrested in Ohio and Koory in Nebraska.

Broadly stated, the grounds of this appeal are: (1) insufficiency of the evidence on the causation of Honeyman’s death; (2) inapplicability of the felony-murder rule to this case; (3) errors in the choice of instructions given and refused; and (4) erroneous admission in evidence of the extrajudicial confessions of Stamp and Koory and the incriminating statement of Lehman.

On this appeal appellants primarily rely upon their position that the felony-murder doctrine should not have been applied in this case due to the unforeseeability of Honeyman’s death.

The Facts1

Defendants Koory and Stamp, armed with a gun and a blackjack, entered the rear of the building housing the offices of General Amusement *208Company, ordered the' employees they found there to go to the front of the premises, where the two secretaries were working. Stamp, the one with the gun, then went into the office of Carl Honeyman, the owner and manager. Thereupon Honeyman, looking very frightened and pale, emerged from the office in a “kind of hurry.” He was apparently propelled by Stamp who had hold of him by an elbow.

The robbery victims were required to lie down on the floor while the robbers took the money and fled out the back door. As the robbers, who had been on the premises 10 to 15 minutes, were leaving, they told the victims to remain on the floor for five minutes so that no one would “get hurt.”

Honeyman, who had been lying next to the counter, had to use it to steady himself in getting up off the floor. Still pale, he was short of breath, sucking air, and pounding and rubbing his chest. As he walked down the hall, in an unsteady manner, still breathing hard and rubbing his chest, he said he was having trouble “keeping the pounding down inside” and that his heart was “pumping too fast for him.” A few minutes later, although still looking very upset, shaking, wiping his forehead and rubbing his chest, he was able to walk in a steady manner into an employee’s office. When the police arrived, almost immediately thereafter, he told them he was not feeling very well and that he had a pain in his chest. About two minutes later, which was 15 or 20 minutes after the robbery had occurred, he collapsed on the floor. At 11:25 he was pronounced dead on arrival at the hospital. The coroner’s report listed the immediate cause of death as heart attack.

The employees noted that during the hours before the robbery Honey-man had appeared to be in normal health and good spirits. The victim was an obese, 60-year-old man, with a history of heart disease, who was under a great deal of pressure due to the intensely competitive nature of his business. Additionally, he did not take good care of his heart.

Three doctors, including the autopsy surgeon, Honeyman’s physician, and a professor of cardiology from U.C.L.A., testified that although Honeyman had an advanced case of atherosclerosis, a progressive and ultimately fatal disease, there must have been some immediate upset to his system which precipitated the attack. It was their conclusion in response to a hypothetical question that but for the robbery there would have been no fatal seizure at that time. The fright induced by the robbery was too much of a shock to Honeyman’s system. There was opposing expert testimony to the effect that it could not be said with reasonable medical certainty that fright could ever be fatal.

*209Sufficiency of the Evidence re Causation

Appellants’ contention that the evidence was insufficient to prove that the robbery factually caused Honeyman’s death is without merit. The test on review is whether there is substantial evidence to uphold the judgment of the trial court, and in so deciding this court must assume in the case of a jury trial the existence of every fact in favor of the verdict which the jury could reasonably have deduced from the evidence. (People v. Redmond, 71 Cal.2d 745, 755 [79 Cal.Rptr. 529, 457 P.2d 321],) A review of the facts as outlined above shows that there was substantial evidence of the robbery itself, that appellants were the robbers, and that but for the robbery the victim would not have experienced the fright which brought on the fatal heart attack.2

Application of the Felony-murder Rule

Appellants’ contention that the felony-murder rule is .inapplicable to the facts of this case is also without merit. Under the felony-murder rule of section 189 of the Penal Code, a killing committed in either the perpetration of or an attempt to perpetrate robbery is murder of the first degree. This is true whether the killing is wilfull, deliberate and premeditated, or merely accidental or unintentional, and whether or not the killing is planned as a part of the commission of the robbery. (People v. Lookadoo, 66 Cal.2d 307, 314 [57 Cal.Rptr. 608, 425 P.2d 208]; People v. Jennings, 243 Cal.App.2d 324, 328 [52 Cal.Rptr. 329].) People v. Washington, 62 Cal.2d 111, 783 [44 Cal.Rptr. 442, 402 P.2d 130], merely limits the rule to situations where the killing was committed by the felon or *210his accomplice acting in furtherance of their common design. (See People v. Gilbert, 63 Cal.2d 690, 705 [47 Cal.Rptr. 909, 408 P.2d 365].)

The doctrine presumes malice aforethought on the basis of the commission of a felony inherently dangerous to human life.3 (See People v. Sears, 62 Cal.2d 737, 745 [44 Cal.Rptr. 330, 401 P.2d 938]; People v. Phillips, 64 Cal.2d 574, 582 [51 Cal.Rptr. 225, 414 P.2d 353]; People v. Washington, supra, at p. 780.) This rule is a rule of substantive law in California and not merely an evidentiary shortcut to finding malice as it withdraws from the jury the requirement that they find either express malice or the implied malice which is manifested in an intent to kill. (People v. Lilliock, 265 Cal.App.2d 419, 431 [71 Cal.Rptr. 434].) Under this rule no intentional act is necessary other than the attempt to or the actual commission of the robbery itself. When a robber enters a place with a deadly weapon with the intent to commit robbery, malice is shown by the nature of the crime. (People v. Ketchel, 71 Cal.2d 635, 642 [79 Cal. Rptr. 92, 456 P.2d 660]; People v. Coefield, 37 Cal.2d 865, 868 [236 P.2d 570].)

There is no requirement that the killing occur, “while committing” or “while engaged in” the felony, or that the killing be “a part of” the felony, other than that the few acts be a part of one continuous transaction. (People v. Chavez, 37 Cal.2d 656, 670 [234 P.2d 632].) Thus the homicide need not have been committed “to perpetrate” the felony. There need be no technical inquiry as to whether there has been a completion or abandonment of or desistance from the robbery before the homicide itself was completed. (People v. Chavez, supra, at pp. 669-670.)

The doctrine is not limited to those deaths which are foreseeable. (See 1 Witkin, Cal. Crimes (1963) §§ 78, 79, pp. 79-80; People v. Chavez, supra, at pp. 669-670.) Rather a felon is held strictly liable for all killings committed by him or his accomplices in the course of the felony. (People v. Talbot, 64 Cal.2d 691, 704 [51 Cal.Rptr. 417, 414 P.2d 633].) As long as the homicide is the direct causal result of the robbery the felony-murder rule applies whether or not the death was a natural or probable consequence of the robbery. So long as a victim’s predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, that condition, and the robber’s ignorance of it, in no way destroys the robber’s criminal responsibility for the death. (Cf. People v. *211Moan, 65 Cal. 532, 536-537 [4 P. 545]; People v. Studer, 59 Cal.App. 547, 552-554 [211 P. 233].) So long as life is shortened as a result of the felonious act, it does not matter that the victim might have died soon anyway. (People v. Phillips, supra, at p. 579.) In this respect, the robber takes his victim as he finds him.

Claimed Errors in Instructions

Appellants claim five errors in the jury instructions given and refused. They argue that: (1) the trial court erred in refusing to give their proffered instruction as to proximate cause; (2) the jury should have been instructed on the court’s own motion that there must be a finding of specific intent to commit the robbery before the felony-murder rule can be applied; (3) the jury should not have been instructed on the felony-murder rujie; (4) the jury should have been instructed on the matter of foreseeability; and (5) the felony-murder rule applies only when the killing was committed in order to perpetrate a felony, and not when the killing occurs merely in the perpetration of a felony, In accordance with our discussion of the felony-murder doctrine, we find the claimed instruction errors numbered (3), (4), and (5) to be without merit.

Appellants contend that the trial court erred in refusing their proffered instruction on proximate cause, reading as follows: “Where the defendant’s criminal act is not the proximate cause of the death and the sole proximate cause was the negligent or reckless conduct of the victim, a conviction is unwarranted.” They assert that article VI, section 13 of the California Constitution guarantees the right of a defendant to have the jury determine every material issue presented by the evidence.

It can be argued that the refusal of the trial court to give the instruction was justified. The evidence before the jury was not such that the jury could have reasonably assumed that negligent or reckless conduct by Honeyman was-the sole cause of his death. (See People v. Bronson, 263 Cal.App.2d 831, 842-843 [70 Cal.Rptr. 162], hear, den.) But, in any event, the three instructions given on the issue of the proximate causation of Honeyman’s death were much more complete and accurate than appellant’s quoted instruction.4 Any error in this respect was harmless.

*212As to the second objection, since the jury was fully instructed . both as to what constitutes robbery and as to what constitutes felony murder,5 the court was not required to instruct them on its own motion that in order to apply the felony-murder rule, appellants must have had the specific intent to commit the robbery. This is so because the jury could not have found them guilty of murder under the felony-murder doctrine without first having found them guilty of robbery. Moreover, failure to instruct the jury that in order to apply the felony-murder doctrine appellants must have had the specific intent to commit the robbery does not constitute prejudicial error where, as here, the evidence permits of no other interpretation than that appellants had the specific intent to steal. (See People v. Ford, 60 Cal.2d 772, 792-793 [36 Cal.Rptr. 620, 388 P.2d 892].)

Claimed Erroneous Admission of Confessions and Incriminating Statement

The getaway car, driven by defendant Lehman, was stopped at 11:08 and Lehman, the only one in it at that time, was advised of his rights to counsel, *213to remain silent and that anything he might say could be used against him prior to any in-custody interrogation. Several weeks later Koory was apprehended in Omaha, Nebraska, and Stamp in Dayton, Ohio; each confessed to his part in the crime after having been advised of his right to counsel, to remain silent, and that any statement he might make could be used against him.

Appellants contend that the confessions of Koory and Stamp and the incriminating statement of Lehman were erroneously admitted in evidence because there was no affirmative showing that appellants had waived their rights to silence and counsel before giving these statements. It is also claimed that Stamp’s confession is inadmissible as being the product of a prior illegally obtained confession. Since appellants failed to object on these grounds at trial, they are not entitled to raise these issues for the first time on appeal. (People v. Ray, 252 Cal.App.2d 932, 958 [61 Cal.Rptr. 1]; People v. Crooks, 250 Cal.App.2d 788, 793 [59 Cal.Rptr. 39].)

On our own motion we have examined the admissibility of these out of court statements under People v. Aranda, 63 Cal.2d 518, 530-531 [47 Cal.Rptr. 353, 407 P.2d 265], We find no error because the trial court followed the recommended procedure in Aranda of deleting from each statement received in evidence all direct and indirect identifications of codefendants as well as any material which could be used against codefendants once their identities had been otherwise established. This objective was accomplished by the police officers stating only what the declarant said to each of them regarding the declarant’s own part in the robbery. In addition the jury was instructed just prior to the admission of each statement and again at the close of the trial that each statement was received only against the particular declarant and not against any of his codefendants.

The judgment is affirmed.

Schweitzer, J., and Allport, J., concurred.

Appellants’ petitions for a hearing by the Supreme Court were denied January 28, 1970.

TOBRINER, J.

Defendant, a doctor of chiropractic, appeals from a judgment of the Superior Court of Los Angeles *577County convicting him of second degree murder in connection with the death from cancer of one of his patients. We reverse solely on the ground that the trial court erred in giving a felony-murder instruction.

Linda Epping died on December 29, 1961, at the age of 8, from a rare and fast-growing form of eye cancer. Linda’s mother first observed a swelling over the girl’s left eye in June of that year. The doctor whom she consulted recommended that Linda be taken to Dr. Straatsma, an opthalmol-ogist at the UCLA Medical Center. On July 10th Dr. Straats-ma first saw Linda; on July 17th the girl, suffering great pain, was admitted to the center. Dr. Straatsma performed an exploratory operation and the resulting biopsy established the nature of the child’s affliction.

Dr. Straatsma advised Linda’s parents that her only hope for survival lay in immediate surgical removal of the affected eye. The Eppings were loath to permit such surgery, but on the morning of July 21st Mr. Epping called the hospital and gave his oral consent. The Eppings arrived at the hospital that afternoon to consult with the surgeon. While waiting they encountered a Mrs. Eaton who told them that defendant had cured her son of a brain tumor without surgery.

Mrs. Epping called defendant at his office. According to the Eppings, defendant repeatedly assured them that he could cure Linda without surgery. They testified that defendant urged them to take Linda out of the hospital, claiming that the hospital was “an experimental place,” that the doctors there would use Linda as “ a human guinea pig ’ ’ and would relieve the Eppings of their money as well.

The Eppings testified that in reliance upon defendant’s statements they took Linda out of the hospital and placed her under defendant’s care. They stated that if defendant had not represented to them that he could cure the child without surgery and that the UCLA doctors were only interested in experimentation, they would have proceeded with the scheduled operation. The prosecution introduced medical testimony which tended to prove that if Linda had undergone surgery on July 21st her life would have been prolonged or she would have been completely cured.

Defendant treated Linda from July 22 to August 12, 1961. He charged an advance fee of $500 for three months’ care as well as a sum exceeding $200 for pills and medicines. On August 13th Linda’s condition had not improved; the Epp-ings dismissed defendant.

*578Later the Eppings sought to cure Linda by means of a Mexican herbal drug known as yerba mansa and, about the 1st of September, they placed her under the care of the Christian Science movement. They did not take her back to the hospital for treatment.

Defendant testified that he knew that he could not cure cancer, that he did not represent to the Eppings that he could do so, that he urged them to return Linda to the hospital and that he agreed to treat her only when it became clear that the Eppings would never consent to surgery. He further testified that in administering treatment he sought to build up Linda’s general health and so prolong her life. He insisted that he had never purported to “treat” cancer as such, but only to give “supportive” care to the body as a whole. He variously described his purpose as being “to build up her resistance,” “assisting the body to overcome its own deficiencies” and “supporting the body defenses. ’’

As we have noted, the trial court gave an instruction on felony murder; we point out that, although defendant could, of course, be prosecuted for grand theft, such a crime, not an inherently dangerous felony, does not support an instruction on felony murder. The giving of that instruction caused defendant prejudice and compels reversal. Initially, however, we dispose of defendant’s argument that the prosecution failed to establish such causal relationship between defendant’s conduct and the death as is requisite to his criminal responsibility.

Legal Cause

We cannot accept defendant’s contention that his conduct did not proximately cause Linda’s death. Defendant’s argument rests upon either of two unsupportable propositions: (1) that the testimony failed as a matter of law to establish a causal relationship between the absence of surgery on July 21st and any shortening of Linda’s life; (2) that the conduct of Linda’s parents subsequent to defendant’s dismissal constituted an “independent intervening force” between the misrepresentation and Linda’s death.

The fact that defendant represented that he could cure Linda without surgery and that such representation caused the Eppings to remove Linda from the hospital finds ample substantiation in the record. The medical evidence likewise supports the jury’s conclusion that the cancellation of the operation had the effect of shortening the child’s life.1

*579Dr. Straatsma testified with “reasonable medical certainty ’ ’2 that the performance of the operation on July 21st would have extended Linda’s life by a minimum of two months, He also gave his opinion that surgery on that date could have effected a complete cure.

Although defendant maintains that Dr. Straatsma on cross-examination disclaimed his testimony as to the beneficial effect of the operation planned for July 21st, the record does not support that contention. Dr. Straatsma merely acknowledged that he could not say with certainty whether the course of the disease had become irreversible on July 21st. The doctor also testified that he could not state the exact period of time by which surgery on that date would have lengthened Linda ⅛ life. Neither aspect of the doctor’s cross-examination in any way reduced the force of his earlier testimony that if the girl had received the scheduled operation, her life would have been extended by a substantial period.

The showing that the length of Linda’s life had thus been limited sufficed for this aspect of the prosecution’s case; no burden rested upon the prosecution to prove that the operation would have cured the disease. Murder is never more than the shortening of life; if a defendant’s culpable act has significantly decreased the span of a human life, the law will not hear him say that his victim would thereafter have died in any event. (People v. Moan (1884) 65 Cal. 532, 537 [4 P. 545] ; People v. Ah Fat (1874) 48 Cal. 61, 64; Perkins, Criminal Law, pp. 27-28.) The jury could properly have found that defendant’s conduct proximately caused Linda’s death.

*580As we have stated, defendant secondly contends that the actions of Linda’s parents subsequent to his dismissal operated as an “independent intervening force” to relieve him of criminal responsibility for her death. He urges that no act of his caused the Eppings to abstain from surgery beyond August 13th, the date of his discharge.3

In pressing this argument, defendant assumes that if the surgery had been performed after Linda left his care, it would have been as efficacious in arresting or retarding the cancer as surgery performed on July 21st. The record refutes this assumption. The evidence established that the tumor grew dramatically during the period in which Linda submitted to defendant’s ministrations; Dr. Straatsma testified that her prospects dimmed rapidly with the passage of time. The jury could properly have concluded that defendant’s conduct in preventing the operation during his treatment measurably reduced the period by which surgery would have extended Linda’s life and significantly diminished her chances for a complete recovery.

The Instruction on Second Degree Felony-Murder.

Defendant challenges the propriety of the trial court’s instructions to the jury. The court gave the following tripartite instruction on murder in the second degree :4

“[T]he unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree:

“(1) If the killing proximately results from an unlawful act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another, or

“(2) If the circumstances proximately causing the killing show an abandoned and malignant heart, or

“ (3) If the killing is done in the perpetration or attempt to perpetrate a felony such as Grand Theft. If a death occurs in *581the perpetration of a course of conduct amounting to Grand Theft, which course of conduct is a proximate cause of the unlawful killing of a human being, such course of conduct constitutes murder in the second degree, even though the death was not intended. ’ ’

The third part of this instruction rests upon the felony-murder rule and reflects the prosecution’s theory that defendant’s conduct amounted to grand theft by false pretenses in violation of Penal Code section 484.

We shall point out why we have concluded that (1) defendant’s contention that section 1714 of the Health and Safety Code preempts the field of fraudulent representation of a cancer cure and therefore precludes an instruction on felony murder, cannot stand; (2) the felony-murder instruction given here was erroneous in that such a charge can properly be grounded only upon a felony “inherently dangerous to life,” and grand theft is not such a crime; (3) the erroneous instruction caused defendant prejudice because it removed from the jury the issue of malice, and (4) the prosecution cannot successfully argue that even though the instruction erroneously permitted the jury to convict without finding malice, no prejudice resulted because the jury necessarily found facts which established malice as a matter of law.

As we have noted, defendant first challenges the felony-murder instruction on the ground that the field of fraudulent misrepresentations as to cures for cancer has been “preempted” by section 1714 of the Health and Safety Code. That section condemns as a misdemeanor “falsely to represent a device, substance or treatment as effective to arrest or cure cancer. ’ ’ Defendant urges that section 1714 precludes a determination that he was guilt}1- of the felony of grand theft pur*582suant to Penal Code section 484; hence section 1714 necessarily prevents the application of the felony-murder rule.

We cannot accept the proposition that the misdemeanor section forecloses the felony prosecution. A conviction for grand theft requires proof that the victim relied on defendant’s representations and that he actually parted with value. (People v. Gibbs (1893) 98 Cal. 661, 663 [33 P. 630] ; People v. Alba (1941) 46 Cal.App.2d 859, 867 [117 P.2d 63] ; see 1 Witkin, Cal. Crimes, §§ 410, 416.) No such requirements need be met in prosecutions under Health and Safety Code section 1714. Accordingly, we may infer that the Legislature intended the new statute to supplement, not supplant, Penal Code section 484. In the circumstance in which some elements of grand theft are lacking the Legislature thereby provided a means for the prosecution of those who fraudulently assert that they can cure cancer. We consequently reject the hypothesis that the Legislature, by undertaking to facilitate the punishment of those who fraudulently offer cures for cancer, thereby immunized from prosecution under Penal Code section 484 conduct which theretofore would have been punishable under that section.

Despite defendant’s contention that the Penal Code does not expressly set forth any provision for second degree felony murder and that, therefore, we should not follow any such doctrine here, the concept lies imbedded in our law. We have stated in People v. Williams (1965) 63 Cal.2d 452 [47 Cal.Rptr. 7, 406 P.2d 647], that the cases hold that the perpetration of some felonies, exclusive of those enumerated in Penal Code section 189, may provide the basis for a murder conviction under the felony-murder rule. (See also People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892].)

We have held, however, that only such felonies as are in themselves “inherently dangerous to human life’’ can support the application of the felony-murder rule. We have ruled that in assessing such peril to human life inherent in any given felony “we look to the elements of the felony in the abstract, not the particular ‘facts’ of the case.’’ (People v. Williams, supra, 63 Cal.2d 452, 458, fn. 5.)

We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application.5 Indeed, the rule itself has *583been abandoned by the courts of England, where it had its inception.6 It has been subjected to severe and sweeping criticism.7 No case to our knowledge in any jurisdiction has held that because death results from a course of conduct involving a felonious perpetration of a fraud, the felony-murder doctrine can be invoked.8

Admitting that grand theft is not inherently dangerous to life, the prosecution asks us to encompass the entire course of defendant ⅛ conduct so that we may incorporate such elements as would make his crime inherently dangerous. In so framing the definition of a given felony for the purpose of assessing its inherent peril to life the prosecution would abandon the statutory definition of the felony as such and substitute the factual elements of defendant’s actual conduct. In the present case the Attorney General would characterize that conduct as “grand theft medical fraud,’’ and this newly created “felony, ’ ’ he urges, clearly involves danger to human life and supports an application of the felony-murder rule.

To fragmentize the “course of conduct’’ of defendant so that the felony-murder rule applies if any segment of that conduct may be considered dangerous to life would widen the *584rule beyond calculation. It would then apply not only to the commission of specific felonies, which are themselves dangerous to life, but to the perpetration of any felony during which defendant may have acted in such a manner as to endanger life.

The proposed approach would entail the rejection of our holding in Williams. That case limited the felony-murder doctrine to such felonies as were themselves inherently dangerous to life. That decision eschews the prosecution’s present sweeping concept because, once the Legislature’s own definition is discarded, the number or nature of the contextual elements which could be incorporated into an expanded felony terminology would be limitless. We have been, and remain, unwilling to embark on such an uncharted sea of felony murder.

The felony-murder instruction should not, then, have been given; its rendition, further, worked prejudice upon defendant. It withdrew from the jury the issue of malice, permitting a conviction upon the bare showing that Linda’s death proximately resulted from conduct of defendant amounting to grand theft. The instruction as rendered did not require the jury to find either express malice or the implied malice which is manifested in an “intent with conscious disregard for life to commit acts likely to kill.” (People v. Washington, supra, 62 Cal.2d 777, 780; People v. Conley (1966) ante, p. 310 [49 Cal.Rptr. 815, 411 P.2d 911] ; People v. Thomas (1953) 41 Cal.2d 470, 479 [261 P.2d 1] [concurring opinion of Justice Traynor ].)9

The instruction thus relieved the jury of the necessity of finding one of the elements of the crime of murder. (Pen. Code, § 187; People v. Washington, supra, 62 Cal.2d 777, 780; People v. Wells (1949) 33 Cal.2d 330, 346 [202 P.2d 53].) Even if the evidence could have supported a finding of implied malice, the instruction failed to require the jury so to determine. “ [Defendants have a constitutional right to have the jury determine every material issue presented by the evi*585dence. . . (People v. Gilbert (1965) 63 Cal.2d 690, 704 [47 Cal.Rptr. 909, 408 P.2d 365] ; People v. Conley, supra, ante, pp. 310, 319; People v. Modesto, supra, 59 Cal.2d 722, 730 and cases cited.) The denial of defendant’s right to a determination by the jury as to whether he acted with malice resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section 4½. (People v. Conley, supra, ante, at pp. 319-320; People v. Gilbert, supra, 63 Cal.2d at p. 704; People v. Williams, supra, 63 Cal.2d 452, 457-460.)

The prosecution does not deny that the giving of a felony-murder instruction engendered the possibility of a conviction of murder in the absence of a finding of malice. It contends, however, that even if the jury acted on the erroneous instruction it must necessarily have found facts which establish, as a matter of law, that defendant acted with conscious disregard for life and hence with malice. The prosecution thus asks us to dissect the jury’s verdict, setting the facts of the case against the instructions in an attempt to isolate the facts which the jury necessarily found in reaching its verdict. From these facts it further asks us to infer the existence of others which the jury was never asked to find.

Examination of the record suggests that even this doubtful enterprise would not enable us to overcome the effect of the erroneous instruction. The prosecution urges that the jury could not have convicted defendant under the felony-murder instruction without having found that he made representations to the Eppings which he knew to be false or which he recklessly rendered without information which would justify a reasonable belief in their truth. Such a finding does not, however, establish as a matter of law the existence of an “intent with conscious disregard for life to commit acts likely to kill.” (People v. Washington, supra, 62 Cal.2d 777, 780.) In the absence of a finding that defendant subjectively appreciated the peril to which his conduct exposed the girl, we cannot determine that he acted with conscious disregard for life. The record contains evidence from which a trier of fact could reasonably have concluded that although defendant made false representations concerning his ability to cure, he nevertheless believed that the treatment which he proposed to give would be as efficacious in relieving pain and prolonging life as the scheduled surgery.10

*586Of course the jury could have concluded from some of the evidence that defendant did not entertain any such belief in the relative efficacy of his proposed treatment. "We cannot, however, undertake to resolve this evidentiary conflict without invading the province of the trier of fact. We cannot predicate a finding of conscious disregard of life upon a record that would as conclusively afford a basis for the opposite conclusion.

The Remaining Instructions on Murder in the Second Degree

In the foregoing discussion we have analyzed the third subdivision of the tripartite instruction on murder in the second degree; here we propose to state our position on the first and second subdivisions. As we have previously noted, the court told the jury that the “unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree (1) If the killing proximately results from an unlawful act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another, or (2) If the circumstances proximately causing the killing show an abandoned and malignant heart. ...”

The first subdivision of the instruction embodies the language of decisions interpreting the cryptic statutory requirement of an “abandoned and malignant heart.” (People v. Conley, supra, ante, pp. 310, 321; People v. Washington, supra, 62 Cal.2d 777, 780; People v. Thomas, supra, 41 Cal.2d 470, 479-480 [concurring opinion of Justice Traynor].) We believe the instruction entirely proper except for the requirement that the act of the defendant be “unlawful.” If that word connotes an absence of legally sufficient justification or excuse, we see no objection to its presence. Indeed the jury should be cautioned that a defendant would not be guilty of second degree murder by reason of committing an act that *587may be dangerous but nevertheless may be necessary to the preservation of life.

On the other hand, the word “unlawful” may suggest to the jury that the prosecution must prove that in performing the acts upon which the murder prosecution rests defendant was also committing some other, quite independent, crime. Insofar as the instruction bears this latter meaning it states a requirement not found in the decided cases and which in our judgment the prosecution need not prove.

An instruction that may more successfully cover the issue of justification or excuse and at the same time not improperly call for proof of other independent criminal conduct could be phrased in terms of “an intent with conscious disregard for life to commit acts likely to kill.” (See People v. Washington, supra, 62 Cal.2d 777, 780.) Such an instruction thus would make possible a conviction of second degree murder upon a finding that “although there was no deliberately formed and premeditated intent to kill, the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. ’ ’

With the above modification, the instruction fully and accurately imparts to the jury every element of implied malice as that concept has been developed in this state. Such an instruction renders unnecessary and undesirable an instruction in terms of “abandoned and malignant heart.” The instruction phrased in the latter terms adds nothing to the jury’s understanding of implied malice; its obscure metaphor invites confusion and unguided speculation.11

The charge in the terms of the “abandoned and malignant heart” could lead the jury to equate the malignant heart with an evil disposition or a despicable character; the jury, then, in a close case, may convict because it believes, the defendant a “bad man.”12 We should not turn the focus of the jury’s task from close analysis of the facts to loose evalu*588ation of defendant’s character. The presence of the metaphysical language in the statute does not compel its incorporation in instructions if to do so would create superfluity and possible confusion. In its origin the language did no more than phrase a companion or alternative description of a conscious disregard of life;13 since the instruction here specifically sets forth the latter, the former merely duplicates it.

The instruction in terms of “abandoned and malignant heart” contains a further vice. It may encourage the jury to apply an objective rather than subjective standard in determining whether the defendant acted with conscious disregard of life, thereby entirely obliterating the line which separates murder from involuntary manslaughter.14

Although we do not hold that the inclusion of a reference in an instruction to an “abandoned and malignant heart” constitutes error we think that it is a superfluous charge. The dangers inherent in it and the absence of any compensating advantage impel us to suggest its replacement with the more comprehensive and informative charge in the first of the three subdivisions of the instructions in the form that we have submitted.

The judgment is reversed.

Traynor, C. J., Peters, J., and Peek, J., concurred.

BURKE, J.

I dissent. The majority opinion reverses the judgment of conviction of second degree murder “solely on the ground that the trial court erred in giving a felony-*589murder instruction.” Under section 4½, article VI, of the California Constitution‘‘No judgment shall be set aside . . . on the ground of misdirection of the jury . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” I submit that here a miscarriage of justice did not result from any error in giving the instruction in view of the overwhelming evidence that defendant, motivated by mercenary greed, acted in conscious disregard for the life of 8-year-old Linda Epping when he induced her parents to cancel the scheduled cancer operation and place her under his care, thereby shortening her life.

The majority eschew the test in article VI, section 4½, of the Constitution by asserting that the instruction ‘‘caused defendant prejudice because it removed from the jury the issue of malice” and that ‘‘The denial of defendant’s right to a determination by the jury as to whether he acted with malice resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section 4½.”

Under the instructions given, the jury was told that malice aforethought was a necessary element of murder, and the instructions permitted the jury to find such malice not only on the basis of the felony-murder rule but also if the killing was committed under circumstances that show an abandoned and malignant heart. To be so committed the defendant must have an intent with conscious disregard for life to commit acts likely to kill. (People v. Washington, 62 Cal.2d 777, 780 [44 Cal.Rptr. 442, 402 P.2d 130] ; see People v. Thomas, 41 Cal.2d 470, 475 [261 P.2d 1] [concurring opinion].)

There was ample evidence that defendant, a chiropractor, intended to induce Linda ⅛ parents to cancel the operation for her fast-growing eye cancer and place her under his care. Motive was shown by evidence that he was then behind in his rent and that he charged Linda’s parents $500 in advance for her treatment and made an additional profit exceeding $100 by selling pills for her at a 100 percent mark-up.

That defendant was well aware that canceling the surgery and placing the child under his care would endanger her life is apparent from his own testimony. He testified as follows: Before Linda was removed from the hospital he knew the form of cancer she had, and, having taken several semesters of pathology at school, he recognized that her condition was “very, very dangerous.” He recalled having read that “early exenteration of the orbit offers the only hope of survival, and *590that a slender one. ’ ’ He stated he was aware that Linda ⅛ case required medical attention, which he was not going to give her. Upon being told that the doctors at UCLA planned to perform surgery on her, he told her mother to listen to the doctors. Later, when Linda’s mother informed him that she had removed Linda from the hospital, he told her she had made “a very, very grave mistake” and should return Linda to the hospital. Thereafter each time Linda was brought to him for treatment he stated that she should have surgery. He graduated from a college of chiropractic in 1958 and testified that he knew he could not cure cancer, and that if he had reason to believe that one of his patients had a malignant tumor he would refer the patient to a surgeon.

In view of the foregoing testimony by defendant any possibility the jury would have concluded, as suggested by the majority, that he believed the treatment he proposed to give would be as efficacious as the scheduled surgery in prolonging her life and thus that he did not act with conscious disregard for her life is so remote as to be virtually nonexistent.

The majority note that defendant testified that he understood that Linda ’s cancer was incurable, but this is not inconsistent with his testimony indicating his belief that surgery offered the best chance of prolonging her life. Moreover, his testimony relating to whether her form of cancer was curable, when the testimony is taken as a whole, merely indicated that he believed that such cancer was ordinarily incurable but that there was a slight chance of survival if there was early exen-teration of the orbit.

The majority opinion is misleading in stating that “defendant testified that he . . . understood that surgery might stimulate the spread of the disease to other parts of the body and thus hasten death.” Defendant testified that he had read that “after removal there is wasting and death due to metastasis . . . ,” i.e. a transfer of the disease from one part of the body to another. The quoted matter which defendant said he had read may mean merely that removal does not always prevent death, not that removal might 11 stimulate ’ ’ the spread of the disease and thus hasten death.

Defendant was indeed fortunate that he was not tried and convicted of first degree murder for Linda’s death. Even if it be assumed that it was error to give the felony-murder instruction, the record shows that it is not reasonably probable that a result more favorable to defendant would have been reached had the instruction not been given. (People v. Watson, 46 Cal.2d 818, 835 [299 P.2d 243].) Since the giving of the *591instruction did not result in a miscarriage of justice, I would affirm tbe judgment of conviction under the mandate of section 4½, article YI, of the California Constitution.

McComb, J., and Schauer, J.,* concurred.

OPINION

WEISBERGER, Chief Justice.

This case comes before us on the appeal of the defendant, Tracy Stewart, from a judgment of conviction entered in the Superior Court on one count of second-degree murder in violation of G.L.1956 (1981 Reenactment) § 11-23-1.1 We affirm the judgment of conviction. The facts insofar as pertinent to this appeal are as follows.

On August 31, 1988 twenty-year-old Tracy Stewart (Stewart or defendant) gave birth to a son, Travis Young (Travis). Travis’s father was Edward Young, Sr. (Young). Stewart and Young, who had two other children together, were not married at the time of Travis’s birth.2 Travis lived for only fifty-two days, dying on October 21, 1988, from dehydration.

During the week prior to Travis’s death, Stewart, Young, and a friend, Patricia McMasters (McMasters), continually and repeatedly ingested cocaine over a two- to three-consecutive-day period at the apartment shared by Stewart and Young. The baby, Travis, was also present at the apartment while Stewart, Young, and McMasters engaged in this cocaine marathon. Young and McMasters injected cocaine intravenously and also smoked it while Stewart ingested the cocaine only by smoking it. The smoked cocaine was in its strongest or base form, commonly referred to as “crack.” When the *916three exhausted an existing supply of cocaine, they would pool their money and Young and McMasters would go out and buy more with the accumulated funds. The primary source of funds from which the three obtained money for this cocaine spree was Stewart’s and McMasters’s Aid to Families with Dependent Children (AFDC) checks. Stewart and McMasters had each just received the second of their semimonthly AFDC checks. They both cashed their AFDC checks and gave money to Young, which he then used to purchase more cocaine. After all the AFDC funds had been spent on cocaine and the group had run out of money, McMasters and Young committed a robbery to obtain additional money to purchase more cocaine.

The cocaine binge continued uninterrupted for two to three days. McMasters testified that during this time neither McMasters nor Stewart slept at all. McMasters testified that defendant was never far from her during this entire two- to three-day period except for the occasions when McMasters left the apartment to buy more cocaine. During this entire time, McMasters saw defendant feed Travis only once. Travis was in a walker, and defendant propped a bottle of formula up on the walker, using a blanket, for the baby to feed himself. McMasters testified that she did not see defendant hold the baby to feed him nor did she see defendant change Travis’s diaper or clothes during this period.

Ten months after Travis’s death defendant was indicted on charges of second-degree murder, wrongfully causing or permitting a child under the age of eighteen to be a habitual sufferer for want of food and proper care (hereinafter sometimes referred to as “wrongfully permitting a child to be a habitual sufferer”), and manslaughter. The second-degree-murder charge was based on a theory of felony murder. The prosecution did not allege that defendant intentionally killed her son but rather that he had been killed during the commission of an inherently dangerous felony, specifically, wrongfully permitting a child to be a habitual sufferer. Moreover, the prosecution did not allege that defendant intentionally withheld food or care from her son. Rather the state alleged that because of defendant’s chronic state of cocaine intoxication, she may have realized what her responsibilities were but simply could not remember whether she had fed her son, when in fact she had not.

At defendant’s trial both the prosecution and the defense presented expert medical witnesses who testified concerning what they believed to be the cause of Travis’s death. The experts for both sides agreed that the cause of death was dehydration, but they strongly disagreed regarding what caused the dehydration. The prosecution expert witnesses believed that the dehydration was caused by insufficient intake of food and water, that is, malnutrition. The defense expert witnesses, conversely, believed that the dehydration was caused by a gastrointestinal virus known as gastroenteritis which manifested itself in an overwhelming expulsion of fluid from the baby’s body.

The defendant was found guilty of both second-degree murder and wrongfully permitting a child to be a habitual sufferer. A subsequent motion for new trial was denied. This appeal followed. In support of her appeal defendant raises a number of issues. We shall address them in the order in which they are presented in defendant’s brief. Additional facts will be furnished as needed in order to deal with specific issues.

I

THE DENIAL OF THE MOTION TO DISMISS

Prior to trial, defendant moved to dismiss count 1 of the indictment, the second-degree felony-murder charge, on two grounds that are relevant to her appeal. She first claimed that count 1 of the indictment was improperly charged. She claimed that the charge should have been no greater than involuntary manslaughter. The basis of defendant’s claim is that the predicate felony underlying the felony-murder charge, wrongfully permitting a child to be a habitual sufferer, is not an inherently dangerous felony as charged in the indictment. The second ground on which defendant sought to have the felony-murder charge dismissed was that the statute under which she was charged, Rhode Island’s child-*917neglect statute, G.L.1956 (1981 Reenactment) § 11-9-5, lacked a mens rea element, and additionally, that count 2 of the indictment, which served as the predicate to the felony-murder charge in count 1, was defective because it did not track the language of the child-neglect statute. The word “wrongfully” appears in § 11-9-5, but the indictment did not include this word to describe the charged conduct. The motion to dismiss was denied on both grounds. The defendant claims that the denial of the motion to dismiss was reversible error. We disagree.

At the pretrial hearing on the motion to dismiss, defendant argued that the law in Rhode Island is moving toward the approach used in California to determine if a felony is inherently dangerous. This approach examines the elements of a felony in the abstract. We shall discuss this approach in more detail in part II A of this opinion. In denying the motion to dismiss, the trial justice stated that “[njothing * * * in my examination of Rhode Island case law, leads the Court to conclude that the Rhode Island Supreme Court is moving toward the California concept.” Rather than determine if the crime of wrongfully permitting a child to be a habitual sufferer was inherently dangerous in the abstract, the trial justice ruled that the state would have the opportunity to prove at trial that the crime was inherently dangerous in the manner that it was committed. The trial justice committed no error in so ruling.

The trial justice held that the mens rea issue could be cured by an appropriate instruction to the jury and denied the motion to dismiss based on this ground as well. She noted that count 2 of the indictment charged defendant with violating § 11-9-5, “and there’s no question but that [§] 11-9-5 talks about wrongful actions.” The trial justice was correct in holding that the indictment did not have to track the exact words of the statute. See State v. Markarian, 551 A.2d 1178, 1182 (R.I.1988) (“as long as the essential elements of the crimes charged are stated in the indictment or information, a defendant’s conviction may be reversed only where the variance is prejudicial to his defense”); State v. McKenna, 512 A.2d 113, 114-15 (R.I.1986). Aside from omitting the word “wrongfully,” count 2 did set forth the essential elements of a violation of § 11-9-5. The defendant was not prejudiced by the omission of the word “wrongfully” from count 2 since the trial justice was correct in asserting that the omission could be cured with an appropriate jury instruction. The trial justice, therefore, committed no error in denying the motion to dismiss on this basis.

II

THE DENIAL OF THE MOTIONS FOR JUDGMENT OF ACQUITTAL

The defendant moved for judgment of acquittal on all three counts at the close of the state’s case and again at the close of all the evidence. In regard to the felony-murder charge defendant claimed that the evidence was insufficient to prove (1) that the crime of wrongfully permitting a child to be a habitual sufferer is an inherently dangerous felony and (2) that defendant intentionally committed the crime of wrongfully permitting a child to be a habitual sufferer. The motions for judgment of acquittal were denied on both grounds. The defendant claims that the denial of her motions for judgment of acquittal was reversible error.

A

Whether Wrongfully Permitting a Child to Be a Habitual Sufferer is an Inherently Dangerously Felony

Rhode Island’s murder statute, § 11-23-1, enumerates certain crimes that may serve as predicate felonies to a charge of first-degree murder. A felony that is not enumerated in § 11-23-1 can, however, serve as a predicate felony to a charge of second-degree murder. See In re Leon, 122 R.I. 548, 410 A.2d 121 (1980); State v. Miller, 52 R.I. 440, 161 A. 222 (1932). Thus the fact that the crime of wrongfully permitting a child to be a habitual sufferer is not specified in § 11-23-1 as a predicate felony to support a charge of first-degree murder does not preclude such crime from serving as a predicate to support a charge of second-degree murder.

In Rhode Island second-degree murder has been equated with common-law mur*918der. In re Leon, 122 R.I. at 553, 410 A.2d at 124. At common law, where the rule is unchanged by statute, “[h]omicide is murder if the death results from the perpetration or attempted perpetration of an inherently dangerous felony.” Id. (quoting Perkins, Criminal Law 44 (2d ed. 1969)). To serve as a predicate felony to a charge of second-degree murder, a felony that is not specifically enumerated in § 11-23-1 must therefore be an inherently dangerous felony. Id.

The defendant contends that wrongfully permitting a child to be a habitual sufferer is not an inherently dangerous felony and cannot therefore serve as the predicate felony to a charge of second-degree murder. In advancing her argument, defendant urges this court to adopt the approach used by California courts to determine if a felony is inherently dangerous. This approach requires that the court consider the elements of the felony “in the abstract” rather than look at the particular facts of the case under consideration. See, e.g., People v. Patterson, 49 Cal.3d 615, 620-21, 778 P.2d 549, 553, 262 Cal.Rptr. 195, 199 (1989). With such an approach, if a statute can be violated in a manner that does not endanger human life, then the felony is not inherently dangerous to human life. People v. Burroughs, 35 Cal.3d 824, 830-33, 678 P.2d 894, 898-900, 201 Cal.Rptr. 319, 323-25 (1984); People v. Caffero, 207 Cal.App.3d 678, 683-84, 255 Cal.Rptr. 22, 25 (1989). Moreover, the California Supreme Court has defined an act as “inherently dangerous to human life when there is ‘a high probability that it will result in death.’” Patterson, 49 Cal.3d at 627, 262 Cal.Rptr. at 204, 778 P.2d at 558.

In Caffero, supra, a two-and-one-half-week-old baby died of a massive bacterial infection caused by lack of proper hygiene that was due to parental neglect. The parents were charged with second-degree felony murder and felony-child abuse, with the felony-child-abuse charge serving as the predicate felony to the second-degree-murder charge. Examining California’s felony-child-abuse statute in the abstract, instead of looking at the particular facts of the case, the court held that because the statute could be violated in ways that did not endanger human life, felony-child abuse was not inherently dangerous to human life. Caffero, 207 Cal.App.3d at 683, 255 Cal.Rptr. at 25. By way of example, the court noted that a fractured limb, which comes within the ambit of the felony-child-abuse statute, is unlikely to endanger the life of an infant, much less of a seventeen-year-old. Id. (the statute applied to all minors below the age of eighteen years, not only to young children. People v. Lee, 234 Cal.App.3d 1214, 1228, 286 Cal.Rptr. 117, 126 (1991)). Because felony-child abuse was not inherently dangerous to human life, it could not properly serve as a predicate felony to a charge of second-degree felony murder. Caffero, 207 Cal.App.3d at 682-83, 255 Cal.Rptr. at 24-25; see also Lee, 234 Cal.App.3d at 1229, 286 Cal.Rptr. at 126.

The defendant urges this court to adopt the method of analysis employed by California courts to determine if a felony is inherently dangerous to life. Aside from California, it appears that Kansas is the only other state which looks at the elements of a felony in the abstract to determine if such felony is inherently dangerous to life. See, e.g., State v. Wesson, 247 Kan. 639, 647, 802 P.2d 574, 581 (1990) (holding that the sale of crack cocaine when viewed in the abstract is not inherently dangerous to human life); State v. Underwood, 228 Kan. 294, 303, 615 P.2d 153, 161 (1980) (holding that the unlawful possession of a firearm by an ex-felon when viewed in the abstract is not inherently dangerous to human life). The case of Ford v. State, 262 Ga. 602, 423 S.E.2d 255 (1992), cited in defendant’s brief for the proposition that possession of a firearm by an ex-felon is not an inherently dangerous felony which can support a felony-murder conviction, actually holds that the attendant circumstances of the particular case should be considered in determining whether the underlying felony “create[d] a foreseeable risk of death.” In Ford the defendant (Ford) had previously been convicted of the felony of possession of cocaine with intent to distribute. Ford was visiting the home of his girlfriend’s mother and had brought with him a semiautomatic pistol. While there he attempted to unload the pistol, but in so doing, he discharged the weapon, sending a bullet both through the floor and through the ceiling of a basement *919apartment located in the house. The bullet struck and killed the occupant of the basement apartment. There was no evidence that at the time of the shooting the defendant was aware of the existence of the apartment or of the victim’s presence in it. Ford was charged with and convicted of felony murder, with the underlying felony being the possession of a firearm by a convicted felon.

The Georgia Supreme Court reversed the conviction for felony murder holding that a status felony, including the possession of a firearm by a previously-convicted felon, is not inherently dangerous. The court explained that there could indeed be circumstances in which such a felony could be considered dangerous (for example when the possession of the firearm was coupled with an aggravated assault or other dangerous felony) but that such circumstances were absent in that case. It held that in that particular case, which did not involve an assault or other criminal conduct, the underlying felony of possession of a firearm by a previously convicted felon was not inherently dangerous and thus could not serve as a predicate to the charge of felony murder. Id. at 603-04, 423 S.E.2d at 256.

We decline defendant’s invitation to adopt the California approach in determining whether a felony is inherently dangerous to life and thus capable of serving as a predicate to a charge of second-degree felony murder. We believe that the better approach is for the trier of fact to consider the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the maimer and the circumstances in which it was committed, rather than have a court make the determination by viewing the elements of a felony in the abstract. We now join a number of states that have adopted this approach. See, e.g., Jenkins v. State, 230 A.2d 262 (Del.1967); State v. Wallace, 333 A.2d 72 (Me.1975); Commonwealth v. Ortiz, 408 Mass. 463, 560 N.E.2d 698 (1990); State v. Harrison, 90 N.M. 439, 564 P.2d 1321 (1977); State v. Nunn, 297 N.W.2d 752 (Minn.1980).

A number of felonies at first glance would not appear to present an inherent danger to human life but may in fact be committed in such a manner as to be inherently dangerous to life. The crime of escape from a penal facility is an example of such a crime. On its face, the crime of escape is not inherently dangerous to human life. But escape may be committed or attempted to be committed in a manner wherein human life is put in danger. Indeed in State v. Miller, supra, this court upheld the defendant’s conviction of second-degree murder on the basis of the underlying felony of escape when a prison guard was killed by an accomplice of the defendant during an attempted escape from the Rhode Island State prison. By way of contrast, the California Supreme Court has held that the crime of escape, viewed in the abstract, is an offense that is not inherently dangerous to human life and thus cannot support a second-degree felony-murder conviction. People v. Lopez, 6 Cal.3d 45, 51, 489 P.2d 1372, 1376, 98 Cal.Rptr. 44, 48 (1971) (In Bank).

The amendment of our murder statute to include any unlawful killing “committed during the course of the perpetration, or attempted perpetration, of felony manufacture, sale, delivery, or other distribution of a controlled substance otherwise prohibited by the provisions of chapter 28 of title 21” lends further support for not following California’s approach to determining the inherent dangerousness of a felony. G.L.1956 (1981 Reenactment) § 11-23-1, as amended by P.L. 1990, ch. 284, § 4. According to the statute a person who delivers phencyclidine (PCP), a controlled substance under section (e)(5) of schedule II of G.L.1956 (1989 Reenactment) § 21-28-2.08, as amended by P.L.1991, ch. 211, § 1, to another person who then dies either as a result of an overdose or as a result of behavior precipitated by the drug use (such as jumping off a building because of the loss of spacial perception) could be charged with first-degree murder under § 11-23-1. Conversely, the California Court of Appeal has held that when viewed in the abstract, the standard used by California courts to determine whether a felony is inherently dangerous, the furnishing or selling of PCP is not a felony that carries a high probability that death will result. People v. Taylor, 6 Cal.App.4th 1084, 1100, 8 Cal.Rptr.2d 439, 449 (1992). Consequently, the *920California Court of Appeal held that the felony of furnishing PCP could not serve as a predicate to a charge of second-degree felony murder. Id. at 1101, 8 Cal.Rptr.2d at 450. It is clear that there is a profound ideological difference in the approach of the Rhode Island Legislature from the holdings of the courts of the State of California concerning appropriate criminal charges to be preferred against one who furnishes PCP (and presumably a host of other controlled substances) to another person with death resulting therefrom. The lawmakers of the State of Rhode Island have deemed it appropriate to charge such a person with the most serious felony in our criminal statutes — first-degree murder. It appears that the appellate court of California, however, would hold that the most serious charge against one who furnishes PCP to another person with death resulting therefrom would be involuntary manslaughter. See id.

The Legislature’s recent amendment to our murder statute as well as this court’s prior jurisprudence concerning second-degree felony murder (In re Leon, supra; State v. Miller, supra) reinforces our belief that we should not adopt the California approach to determine whether a felony is inherently dangerous. The proper procedure for making such a determination is to present the facts and circumstances of the particular case to the trier of fact and for the trier of fact to determine if a felony is inherently dangerous in the manner and the circumstances in which it was committed. This is exactly what happened in the case at bar. The trial justice instructed the jury that before it could find defendant guilty of second-degree murder, it must first find that wrongfully causing or permitting a child to be a habitual sufferer for want of food or proper care was inherently dangerous to human life “in its manner of commission.” This was a proper charge. By its guilty verdict on the charge of second-degree murder, the jury obviously found that wrongfully permitting a child to be a habitual sufferer for want of food or proper care was indeed a felony inherently dangerous to human life in the circumstances of this particular case.

“When presented with a motion for judgment of acquittal, a trial justice must determine whether the evidence offered by the state is capable of generating proof of guilt beyond a reasonable doubt. * * * To make this determination, a trial justice, and this court on review, must view the evidence in the light most favorable to the state, without weighing the evidence or assessing the credibility of the witnesses, and must draw therefrom all reasonable inferences consistent with guilt.” State v. Caruolo, 524 A.2d 575, 580-81 (R.I.1987).

Applying this standard, we are of the opinion that the evidence offered by the state was sufficient to prove beyond a reasonable doubt each of the elements of second-degree felony murder, including that the crime of wrongfully permitting a child to be a habitual sufferer was an inherently dangerous felony in its manner of commission. The defendant’s motions for judgment of acquittal on the felony-murder charge on the ground that wrongfully permitting a child to be a habitual sufferer is not an inherently dangerous felony were properly denied.

B

Whether Defendant Possessed the Necessary

Intent to Commit the Crime of Wrongfully Permitting a Child to Be a Habitual Sufferer for Such Felony to Support a Charge of Second-Degree Felony Murder

The theory of felony murder is that a defendant does not have to have intended to kill one who dies during the course of certain statutorily enumerated felonies, or other inherently dangerous felonies, in order to be charged with murder. The intent to commit the underlying felony will be imputed to the homicide, and a defendant may thus be charged with murder on the basis of the intent to commit the underlying felony. See, e.g., State v. Villani, 491 A.2d 976, 980 (R.I.1985); 2 Wharton’s Criminal Law § 147 (14th Torcia ed. 1979).

The defendant claims that the evidence presented at trial failed to establish that she intentionally committed the crime of wrongfully permitting a child to be a habitual *921sufferer. She claims that absent an intent to commit this felony, it cannot serve as a predicate to support a charge of second-degree felony murder because there would then be no intent to be imputed from the underlying felony to the homicide. We agree with defendant that intent to commit the underlying felony is a necessary element of felony murder. However, we believe the circumstances surrounding the events preceding Travis’s death support a finding that defendant did indeed intentionally permit her son to be a habitual sufferer for want of food or proper care.

The defendant’s addiction to and compulsion to have cocaine were the overriding factors that controlled virtually every aspect of her life. She referred to the extended periods that she was high on cocaine as “going on a mission.” Although she was receiving public assistance and did not have much disposable income, she nevertheless spent a great deal of money on cocaine, including her AFDC money. She shoplifted and traded the stolen merchandise for cocaine. She stole food because she had used the money that she should have been using to purchase food to purchase cocaine. The compulsion to have cocaine at any cost took precedence over every facet of defendant’s life including caring for her children.

Although defendant did not testify at trial, she did testify before the grand jury. A redacted tape of her grand jury testimony was admitted into evidence and played for the jury at trial. During the days preceding Travis’s death, defendant had been on a two-to three-day cocaine binge, a mission, as she referred to it. Her grand jury testimony indicated that she knew that during such periods she was unable to care for her children properly. The defendant testified that whenever she would go on a mission, her mother, who lived only a few houses away, would take and care for the children. This testimony evinced a knowledge on the part of defendant that she was incapable of properly caring for her children during these periods of extended cocaine intoxication. In addition, defendant was prone to petit mal seizures, which were exacerbated by her cocaine use. During such seizures she would “black out” or “[go] into a coma state.” She testified before the grand jury that she was aware that taking cocaine brought on more seizures and that the weekend before Travis died she had in fact blacked out and ‘Vent into a coma state.”

Despite her grand jury testimony to the contrary, Travis remained with defendant at her apartment during the entire two- to three-day binge. He died two or three days later. The defendant’s repeated voluntary and intentional ingestion of crack cocaine while her seven-week-old son was in her care in addition to her testimony that she knew that she was incapable of properly caring for her children during these extended periods of cocaine intoxication, support a finding that she intentionally permitted her son to be a habitual sufferer for want of food and proper care. We make the distinction between a finding that defendant intentionally deprived her son of food and proper care, which even the state does not allege, and a finding that defendant intentionally permitted, her son to be a habitual sufferer for want of food or proper care, which we find to be supported by the evidence adduced at trial.

Viewing the evidence in the light most favorable to the state, without weighing the evidence or assessing the credibility of witnesses, and drawing all reasonable inferences consistent with guilt, we are of the opinion that the evidence offered by the state was capable of proving beyond a reasonable doubt that defendant intentionally permitted her seven-week-old-son, Travis, to be a habitual sufferer for want of food and proper care. We also believe that the evidence in support of each of the other elements of the crime of second-degree felony murder was sufficient to justify a finding of proof beyond a reasonable doubt. The motions for judgment of acquittal were properly denied.

Ill

ADMISSION OF EVIDENCE OF OTHER CRIMES AND BAD ACTS

In her testimony before the grand jury, defendant explained that she was addicted to cocaine prior to becoming pregnant with Travis and that she continued to use cocaine *922throughout her pregnancy on a daily basis. The defendant testified that during her pregnancy she was high on cocaine approximately nine hours per day and that after Travis was born she would get high approximately seven hours per day. She also testified that when Travis was born, a substantial amount of cocaine had been found in his system. The following colloquy took place between the prosecutor and defendant with respect to how defendant obtained money with which to purchase cocaine:

“Prosecutor: Now, Ms. Stewart, aside from using welfare money and other means, aside from using money you received by public assistance, were there other ways that you would get money?

“Defendant: Yes. I would borrow money or I would steal from the store, shoplifting, and trade it off, trade it off for the drugs.

“Prosecutor: How about breaking into apartments; did you ever break into apartments?

“Defendant: I broke into an apartment on Sayles Avenue, but what was stolen from that apartment was food.

“Prosecutor: Isn’t it true that you broke into two apartments at that address?

“Defendant: Yes. It was the third floor and the fourth floor.

“Prosecutor: And is it your testimony that no money was taken from either one of those apartments?

“Defendant: Right.

“Prosecutor: And one of the reasons — Is it true that you broke into those apartments and stole food because you were using money, which normally would go to [purchase] food, to buy cocaine?

“Defendant: No, I wouldn’t — I would spend the money that should have been used towards the food on cocaine, but when I had broken into the apartment, that was towards the end of the month. I had no more food stamps left. I did have food in my house, but it was nothing like, it was like canned foods like, say, Spaghett-is and stuff like that for my children, my older children. Travis had his formula that’s up in the cabinet, but when I broke into the other apartment, I had stolen meats out of the freezer so I had meats in the house for the children.”

At trial, the state sought to play for the jury a tape recording of defendant’s grand jury testimony, including the portion excerpted above. The defendant objected inter alia, to the admission of evidence pertaining to (1) the cocaine found in Travis’s system at birth, (2) defendant’s cocaine use during her pregnancy, (3) defendant’s use of her AFDC money to purchase cocaine, and (4) defendant’s shoplifting and breaking into apartments. Each of these objections was overruled, and these portions of defendant’s grand jury testimony were played for the jury at trial.3 The defendant claims that the admission of evidence of other crimes that she had committed which were unrelated to the crime for which she was standing trial was reversible error. We disagree with both defendant’s characterization of these other crimes as “unrelated” and with her contention that the admission of evidence of their commission was reversible error.

Generally, evidence that shows or tends to indicate that an accused has committed another crime independent of the crime for which he or she is standing trial is irrelevant and inadmissible. State v. Chartier, 619 A.2d 1119, 1122 (R.I.1993); State v. Cardoza, 465 A.2d 200, 202 (R.I.1983); State v. Colvin, 425 A.2d 508, 511 (R.I.1981). “This rule operates to prevent a jury from finding a defendant guilty based upon unrelated crimes rather than upon evidence [relating] to the charged offense.” Cardoza, 465 A.2d at 202. There are, however, several well-established exceptions to this rule. Evidence that a defendant has participated in or committed prior crimes may be admissible if such evidence “tends to establish the defendant’s ‘guilty knowledge, intent, motive, design, plan, scheme, system, or the like’ with respect to the offense charged.” State v. Gallagher, 654 A.2d 1206, 1210 (R.I.1995); State v. Lemon, 497 A.2d 713, 720 (R.I.1985); State v. Colangelo, 55 R.I. 170, 174, 179 A. 147, 149 (1935); see also R.I. R.Evid. 404(b). *923We have previously stated that in situations in which the prior crimes “are interwoven with the offense for which the defendant is being tried, or directly support a finding of guilty knowledge in the perpetration of that offense,” then evidence of the prior crimes is admissible. Cardoza, 465 A.2d at 202 (quoting Colangelo, 55 R.I. at 174, 179 A. at 149). Stated another way, evidence of prior crimes is not admissible to prove the propensity of a defendant to commit such a crime but it is admissible to show a fact or facts which tend to prove that the defendant is guilty of the crime charged. Lemon, 497 A.2d at 720.

In the instant case, during the period in question, defendant’s addiction to and obsession with cocaine were the overriding factors that controlled virtually every aspect of her life. She spent nearly all her money, including the money from her AFDC checks, to buy cocaine. Because she used her money from public assistance to purchase cocaine rather than food, defendant resorted to breaking into apartments to steal food for her children. She shoplifted so that she could trade the stolen merchandise for cocaine. All defendant’s criminal activity was inextricably linked to her cocaine addiction and her compulsion to have cocaine at any cost.

The defendant claims, and the state concurs, that defendant did not intentionally deprive Travis of food and care. Rather, both defendant and the state contend that because defendant was so intoxicated from her use of cocaine during the period surrounding Travis’s death, she was physically and mentally unable to care for her infant child properly. It was this very addiction and compulsion that resulted in defendant being incapable of providing the necessary care and supervision that ultimately led to Travis’s death. Evidence of defendant’s shoplifting and breaking into apartments and the relation that this criminal activity bore to her compulsion to obtain cocaine are relevant to the issue of whether defendant possessed the requisite intent to commit the crime of wrongfully permitting her son to be a habitual sufferer. In the circumstances of this case, defendant’s shoplifting and breaking into apartments were interwoven with the offense for which she was being tried and evidence of these prior crimes was therefore properly admissible. See Cardoza, supra. The trial justice was correct in allowing evidence of these prior crimes.

IV

THE FAILURE TO GIVE A LIMITING INSTRUCTION

The defendant contends that even if evidence of prior criminal acts was admissible, the trial justice’s failure to instruct the jury concerning the limited purpose for which such evidence could be used constituted reversible error. The defendant, citing State v. Jalette, 119 R.I. 614, 625, 382 A.2d 526, 532 (1978), claims that when evidence of other crimes is admissible, the trial justice must specifically instruct the jury concerning the limited purpose for which such evidence was introduced. She further contends that State v. Brown, 626 A.2d 228, 234 n. 2 (R.I.1993), mandates that a trial justice is required to give a limiting instruction even in the absence of counsel’s request for such instruction.

The two cases cited by defendant both involved sexual-assault charges and evidence of prior sexual misconduct. The Jal-ette rule applies only when a defendant is charged with a sexual offense and evidence of prior sexual misconduct is admitted. The Brown case stands for the proposition that when a defendant is charged with a sexual offense, a trial justice should offer a limiting instruction sua sponte when admitting evidence of other sexual acts. Because the case at bar involved neither a sexual-assault charge nor evidence of prior sexual offenses, the trial justice was not required to give a limiting instruction in the absence of a request for such an instruction by defense counsel. See State v. Martinez, 651 A.2d 1189, 1195 (R.I.1994). The trial justice therefore committed no error by failing to give a limiting instruction.

V

THE TESTIMONY CONCERNING EVENTS THAT OCCURRED FOLLOWING TRAVIS’S DEATH

Two or three days after the cocaine binge had ended, defendant went to McMasters’s *924apartment and informed her that Travis had died that morning. The defendant was carrying a bag containing cans of baby formula and asked McMasters if she knew where she (defendant) could exchange the unused formula for cocaine. McMasters told defendant that she did not know where the formula could be exchanged for cocaine but suggested that she take it to a local supermarket to get a cash refund. McMasters then accompanied defendant to a supermarket in Pawtucket where they attempted to return the formula for cash. They were unsuccessful in this attempt, however, because they did not have a receipt for the formula and store policy dictated that no cash refunds be given for returns without a receipt for the merchandise. The defendant told the assistant store manager that her baby had just died, and the manager gave defendant $20 out of his own pocket because he felt sorry for her.4 The defendant used this $20 to purchase cocaine. The defendant and McMasters then went to McMasters’s apartment and smoked cocaine. McMasters was permitted to testify to this incident over defense objection that such evidence violated Rule 404(b) of the Rhode Island Rules of Evidence concerning bad character.

The next day, the day after Travis died, defendant went to McMasters’s apartment building, apparently angry at McMasters because defendant thought that McMasters owed her money. The defendant began screaming obscenities from the driveway of McMasters’s apartment building toward the window of McMasters’s apartment. McMas-ters opened her window and told defendant to quiet down, but defendant proceeded to the porch of McMasters’s apartment. The defendant began banging on the door and then smashed the apartment window with the handle of a butcher knife. Defense counsel objected to any testimony concerning presentation of this incident to the jury at trial on grounds that such evidence was irrelevant, prejudicial, and violative of Rule 404(b). The objection was overruled. Thereafter the grand jury tape wherein the prosecutor questioned defendant concerning this incident was played for the jury, and McMasters also testified concerning the episode.

The defendant claims that evidence concerning these two occurrences is completely irrelevant and highly prejudicial and does not fall under any of the exceptions to Rule 404(b) concerning admissibility of evidence of other crimes, wrongs, or acts. The trial justice admitted such evidence, finding it relevant insofar as it related to defendant’s intent, knowledge, and identity. She also found that there was no danger of unfair prejudice resulting from the admission of this evidence.

Although we may not agree that there was no danger of prejudice resulting from the admission of evidence relating to the two incidents that occurred following Travis’s death, we do not feel that the admission of such evidence was error. As we stated in Lemon, “[A]ll of the evidence that tends to prove that [a] defendant is guilty of a crime might be said to be prejudicial. Said evidence is inadmissible only if it is prejudicial and irrelevant.” 497 A.2d at 720.

“[T]he admission or exclusion of evidence on grounds of relevancy is within the discretion of the trial justice.” State v. Neri, 593 A.2d 953, 956 (R.I.1991). Absent a showing of abuse of discretion this court will not overturn the trial justice’s ruling on the admissibility of evidence. In the instant case, evidence of defendant’s attempt to return unused baby formula after the death of her son and of her subsequently spending the $20 given her by the store manager to purchase cocaine tended to show the ruthless determination on the part of defendant to obtain cocaine in any circumstances. This determination was probative of her intent to permit her son to be a habitual sufferer for want of the food and proper care that was essential for his survival. Evidence of the incident outside MeMasters’s apartment on the day following Travis’s death would be of limited relevance, but its admission would not constitute an abuse of discretion. In light of the totality of evidence in the case such *925admission would not be prejudicial or reversible error. We are of the opinion that the trial justice did not abuse her discretion in admitting evidence of these two incidents.

VI

THE DENIAL OF DEFENDANT’S MOTION FOR MISTRIAL

In response to a question from the prosecutor concerning whether there was a period during which she continued to purchase cocaine with defendant and Young, McMasters responded, “[Y]eah. We bought, we purchased cocaine until all our money ran out of our checks, and then me and Eddie went and robbed somebody for some more money.” Defense counsel immediately moved at sidebar for a mistrial on the ground that robbery is a very serious crime and the fact that McMasters and Young had committed a robbery was imparted to the jury was extremely prejudicial to defendant. The motion for mistrial was denied, but the trial justice immediately struck the statement concerning the robbery from the record and instructed the jury to ignore it. In denying the motion for mistrial, the trial justice noted that defendant had not been implicated in the robbery. McMasters testified that only she herself and Eddie (Young) had committed the robbery. The trial justice found that defendant suffered no harm from the statement concerning the robbery. The defendant claims that the trial justice’s denial of the motion for mistrial was prejudicial error.

The defendant relies on our recent opinion in State v. Gallagher, to support her claim that she was unfairly and substantially prejudiced by the reference to the robbery committed by McMasters and Young. In that case, we held that testimony that implicated the defendant’s friends in a shooting which was unrelated to the charges for which the defendant was standing trial was extremely prejudicial and constituted reversible error. In Gallagher, however, the “credibility of the witnesses was the paramount issue at trial.” 654 A.2d at 1211. The testimony at issue in Gallagher implicated a defense witness in a shooting that was unrelated to the charges for which the defendant was standing trial. In that case the defendant was prejudiced by the admission of the evidence since it seriously impaired the credibility of the defense witness in a case where the credibility of witnesses was the most important issue. Id.

In the case at bar, the principal facts testified to by McMasters are virtually uncontra-dicted. McMasters’s credibility was not a primary issue. Furthermore, McMasters was a prosecution witness, not a defense witness. If the jury had questioned McMas-ters’s credibility, this would have benefited defendant, not prejudiced her. Young did not testify in this case; thus his credibility is not in issue. The defendant’s reliance on Gallagher is therefore misplaced.

It is within the sound discretion of the trial justice to grant or to deny a defendant’s motion to pass a ease (motion for mistrial). State v. Mastrofine, 551 A.2d 1174, 1177 (R.I.1988). The denial of a motion to pass the case is to be accorded great weight and will not be overturned on appeal unless clearly wrong. Id. In the case at bar the statement concerning the robbery did not implicate defendant. The trial justice also admonished the jury to disregard the statement. The trial justice committed no error in denying defendant’s motion for mistrial.

VII

THE STATE’S REBUTTAL TESTIMONY

Both the state and defendant presented expert witnesses who testified concerning the cause of Travis’s death. In pretrial discovery the state disclosed to the defense the reports and anticipated testimony of four medical experts: Dr. William Quentin Stur-ner, Dr. Penelope Dennehy, Dr. Donald Singer, and Dr. Joel Adelson. In its ease in chief the state called only two of the expert witnesses — Doctors Sturner and Dennehy.

Doctor Stumer, who performed the autopsy on Travis, testified that in his opinion, the cause of Travis’s death was malnutrition and dehydration that were due to starvation and neglect. He testified at length concerning his various findings that supported this conclusion and how these same findings did not *926support a conclusion that the cause of death was a gastrointestinal illness.

The thrust of Dr. Dennehy’s testimony was to discredit the defense’s theory that Travis had died as a result of viral gastroenteritis. She did testify, however, that in her opinion the cause of death was dehydration due to deficient input.

The defense also presented two expert medical witnesses, Dr. William Durbin and Dr. David Gang. Both defense experts concurred with the prosecution experts that Travis had died as a result of dehydration. Doctors Durbin and Gang, however, believed that the cause of the dehydration was a gastrointestinal virus that manifested itself in an overwhelming expulsion of fluid from the baby’s body.

The state presented Doctors Singer and Adelson as rebuttal witnesses. Doctor Singer testified that in preparation for testifying he had reviewed the autopsy report, photographs, Travis’s birth and neonatal health records, the reports prepared by the defense’s expert witnesses, and tissue slides prepared “from virtually every organ in the body.” The prosecutor then asked the doctor if he had an opinion concerning whether Travis had been malnourished. Defense counsel’s objection to this question was overruled. After Dr. Singer responded that in his opinion Travis had been malnourished, the prosecutor asked the doctor if he had an opinion concerning the degree of malnutrition. Defense counsel again objected on the ground that such testimony was not proper rebuttal. This objection was overruled, and defense counsel then requested and was granted a continuing objection to that line of testimony.

In addition to stating his opinion concerning the cause of death, Dr. Singer disputed certain of the claims made by the defense’s expert witnesses. For example, Dr. Singer disagreed with Dr. Durbin’s assertion that Travis had been growing at a consistent rate. He also disagreed with Dr. Durbin’s and Dr. Gang’s characterization of the fecal material in Travis’s diaper and with their contention that microscopic changes in the intestines following death would have made it extremely difficult to detect inflammation. In the course of his testimony, Dr. Singer also expressed opinions on some of the same matters to which Dr. Sturner had testified in the state’s direct case and reached similar conclusions to those of Dr. Stumer.

Doctor Adelson was the state’s second expert rebuttal witness. He testified that in his opinion the dehydration that caused Travis’s death was the result of insufficient intake rather than excessive output. Defense counsel again requested and was granted a continuing objection to this line of testimony on the ground that it was improper rebuttal. Doctor Adelson then explained the reasons why he had concluded that Travis had not suffered a gastrointestinal disorder. Many of these reasons were the same as those testified to by Dr. Dennehy in the state’s direct case.

The defendant claims that the testimony of Doctors Singer and Adelson was improper rebuttal because the bulk of the testimony was cumulative. She further contends that some of the testimony pertained to new matters and was therefore improperly presented for the first time in the state’s rebuttal case. We shall address the second prong of this argument first.

The defendant points to only two examples of new evidence being presented for the first time on rebuttal. When Dr. Singer was relating why he disagreed with Dr. Durbin’s assertion that Travis had grown at a consistent rate, he explained that the growth charts relied upon by Dr. Durbin contained outdated information whereas the growth tables that he used were, to his knowledge, the most accurate and up-to-date tables of the kind. Although Dr. Singer’s testimony concerning the accuracy of information contained in the growth charts and tables utilized by the expert witnesses may indeed have been new evidence imparted to the jury for the first time on rebuttal, this information was offered for the sole purpose of explaining how he had come to a conclusion contrary to that of the defense’s expert witness. There was no error in the admission of this testimony.

The only other example defendant points to of the presentation of new evidence for the *927first time on rebuttal is Dr. Adelson’s testimony that the degree of Travis’s malnutrition may have been mild to moderate. We see no error in the admission of this testimony. The state was not presenting a new theory for the cause of Travis’s death. To the contrary, each of the state’s four expert witnesses testified that the cause of death was dehydration resulting from insufficient input, that is to say, due to malnutrition.

Returning to the first prong of defendant’s argument, she claims that the testimony of Doctors Singer and Adelson was improper rebuttal because it was for the most part cumulative. We note that “the proper function and purpose of rebuttal testimony is to explain, repel, counteract, or disprove the evidence of the adverse party.” State v. Donovan, 120 N.H. 603, 607, 419 A.2d 1102, 1105 (1980) (quoting United States v. Chrzanowski, 502 F.2d 573, 576 (3d Cir.1974)). The decision to permit rebuttal testimony lies in the discretion of the trial justice, whose decision will not be overturned absent an abuse of that discretion. See State v. Simpson, 520 A.2d 1281, 1284 (R.I.1987); State v. Lawrence, 492 A.2d 147, 149 (R.I.1985); 2 Wharton’s Criminal Evidence § 432 (14th Torcia ed. 1986).

Doctor Singer’s and Dr. Adelson’s testimony was designed to discredit the defense’s theory that Travis died as a result of dehydration caused by a gastrointestinal infection. Because of the nature of the medical evidence, it was virtually impossible for the doctors’ rebuttal testimony not to repeat certain, or even much, of the testimony that was presented during the state’s case in chief. We are of the opinion that the trial justice did not abuse her discretion in admitting this rebuttal testimony.5

VIII

THE DENIAL OF DEFENDANT’S REQUEST FOR SURREBUTTAL

Following the state’s presentation of Doctors Singer and Adelson as rebuttal witnesses, defense counsel made an equivocal request for surrebuttal. Defense counsel based his request on two grounds. First, counsel argued that it was unfair for the state to present its case last in a manner that defense counsel claimed was improper rebuttal. Second, counsel contended that the state had improperly presented a new theory in its rebuttal case concerning the cause of Travis’s death, to which the defense should have the opportunity to respond. In response to the trial justice’s inquiry concerning what testimony he wanted to rebut, defense counsel mentioned Dr. Adelson’s theory of the cause of death and related matters. He then continued: “There may well be other things, your Honor. I need time to think about it and talk about it with Dr. Gang and Dr. Durbin. I don’t really know that after talking with them, we would consider it [to] be worthwhile to put on a surrebuttal case.” Prior to ruling on the request, the trial justice stated that she was “unable to see any even mildly significant reason to grant surre-buttal, which is not commonly done, in any event,” but planned to hold off on her decision until the following morning. Because of the difficulty of arranging for his expert witnesses to be present the following morning when the likelihood was great that the request for surrebuttal would be denied, defense counsel requested that the trial justice make an immediate ruling. The trial justice obliged and denied the request.

In State v. Byrnes, 433 A.2d 658 (R.I.1981), we quoted with approval the Illinois Appellate Court in Ross v. Danter Associates, Inc., 102 Ill.App.2d 354, 242 N.E.2d 330 (1968), for the standard for permitting surrebuttal testimony:

“The purpose of surrebuttal is to permit the defendant to introduce evidence in refutation or opposition to new matters interjected into the trial by the plaintiff on rebuttal. * * * In other words, fairness requires that the defendant be permitted to oppose new matters presented by plaintiff for the first time which the defendant could not have presented or opposed at the time of presentation of his main case. Contrariwise, the purpose of surrebuttal is *928not the introduction of evidence merely cumulative to that presented by the defendant in its original presentation. * * * It follows that the defendant has no right to present surrebuttal evidence merely because the plaintiff has presented rebuttal evidence.” Byrnes, 433 A.2d at 669-70 (quoting Ross, 102 Ill.App.2d at 367-68, 242 N.E.2d at 336-37).

Even if we agreed with defendant’s arguments that the state’s rebuttal testimony was improper, which we do not, we would still be constrained to find that the trial justice committed no error in denying the request for surrebuttal. The request for sur-rebuttal was equivocal, and defense counsel was unable to apprise the trial justice with any degree of certainty regarding what testimony he intended to rebut. More importantly, counsel did not apprise the trial justice concerning the proposed content of the sur-rebuttal testimony. Without any knowledge regarding the content of the proposed surre-buttal testimony, the trial justice was unable to determine whether it met the standards for the admission of such testimony which are quoted above. We realize that the trial justice did not inquire of counsel concerning the content of the proposed surrebuttal testimony, but such an inquiry would have proved futile inasmuch as counsel had not yet conferred with his expert medical witnesses and therefore would have been unable to inform the court concerning the content of any testimony that they might have offered.

Moreover, the denial of the request for surrebuttal was proper because of the equivocal nature of the request. In one breath defense counsel stated that he needed time to think about it and to talk about it with his expert witnesses and in the next breath he asked the trial justice for an immediate ruling on the request. In view of the fact that counsel was not even sure if he intended to put on a surrebuttal case, the trial justice committed no error in denying the request.

IX

THE DENIAL OF DEFENDANT’S PROPOSED JURY INSTRUCTION

Defense counsel submitted the following proposed jury instruction to the trial justice:

“If you find that Travis Young suffered from want of food and proper care as a result of unknowing oversight due to any cause, including the inability of the defendant to remember to feed and care for him, you must find her not guilty on counts one and two.”

The trial justice declined to give this proposed instruction. Instead, she instructed the jury that in order to find defendant guilty of second-degree murder, it must find that five elements were proved beyond a reasonable doubt, specifically that (1) defendant had custody or control of Travis and that Travis was a child under eighteen years of age, (2) Travis was a habitual sufferer for want of food or proper care, (3) defendant wrongfully caused or permitted Travis to be a habitual sufferer, (4) the crime of wrongfully causing or permitting a child to be a habitual sufferer for want of food or proper care is inherently dangerous to human life, and (5) defendant knew or was aware beforehand that there was a likelihood that Travis’s life would be endangered as a result of causing or permitting him to be a habitual sufferer for want of food or proper care. The trial justice explained certain of these elements in further detail, such as the meanings of “habitual,” “wrongfully,” and “inherently dangerous to human life.”

The defendant claims that the trial justice’s failure to give the proposed instruction quoted above, or one of similar import, is reversible error. She claims that it was incumbent upon the trial justice to instruct the jury that in order to find her guilty of second-degree murder and of wrongfully permitting a child to be a habitual sufferer, it must find that she intentionally caused or permitted her son to be a habitual sufferer.

Initially we note that the child-neglect statute, § 11-9-6, may be violated by a failure to act on the part of one who has a duty to act, namely, a person who has custody or control of a child under the age of eighteen.*' Section 11-9-5 reads in pertinent part:

“Cruelty to or neglect of child. — Every person having the custody or control of *929any child under the age of eighteen (18) years * * * who shall wrongfully cause or permit that child to be an habitual sufferer for want of food * * * [or] proper care * * * shall be guilty of a felony.”

Thus the statute may be violated by an omission to act as well as by active conduct. The culpability element contained in the statute is “wrongfully.” In her jury charge, the trial justice defined “wrongfully” as something done without legal justification and without legal excuse. We concur with this definition. By imposing criminal liability for wrongful conduct rather than for intentional conduct, our Legislature evinced an intent that the child-neglect statute could be violated even absent a conscious purpose to cause or permit a child to be a habitual sufferer, as long as no legal justification or legal excuse existed for so causing or permitting the child to be a habitual sufferer. Thus § 11-9-5 can be violated by an unintentional omission to act, contrary to the contention of defendant.6

Even though one can therefore be guilty of wrongfully permitting a child to be a habitual sufferer upon the basis of an unintentional omission to act, in order for the crime of wrongfully permitting a child to be a habitual sufferer to serve as a predicate felony to a charge of second-degree felony murder, the accused must have had the intent to commit the underlying felony. See State v. Villani, 491 A.2d at 980, 2 Wharton’s Criminal Law § 147. Although it is true that the trial justice did not specifically instruct the jury that in order to find defendant guilty of second-degree murder, it must find as one of the elements of the crime that she intentionally caused or permitted her son to be a habitual sufferer for want of food or proper care, we believe that the instructions given were substantially equivalent. The trial justice instructed the jury that it must find that defendant wrongfully, that is, without legal justification or without legal excuse, caused or permitted Travis to be a habitual sufferer. She also instructed that it must find that defendant knew or was aware beforehand that there was a likelihood that Travis’s life would be endangered as a result of permitting or causing him to be a habitual sufferer for want of food or proper care. We believe that these two instructions in combination, requiring that the jury find that defendant had no legal justification or no legal excuse for causing her son to be a habitual sufferer and also requiring that the jury find that defendant knew or was aware beforehand that causing or permitting her son to be a habitual sufferer for want of food or proper care was likely to endanger his life, were the functional equivalent to an instruction requiring the jury to find that defendant intentionally caused or permitted her son to be a habitual sufferer. “This failure to distinguish between intent * * * and knowledge is probably of little consequence in many areas of the law, as often there is good reason for imposing liability whether the defendant desired or merely knew of the practical certainty of the results.” LaFave and Scott, Substantive Criminal Law, § 3.5(b) at 305 (1986); see also Model Penal Code § 2.02 cmt. 2 at 234 (1985) (the “distinction [between acting purposely and knowingly] is inconsequential for most purposes of liability; acting knowingly is ordinarily sufficient”).

The trial justice committed no error in refusing to give the requested instruction.

For the foregoing reasons the defendant’s appeal is denied and dismissed, and the judgment of conviction is affirmed. The papers in the case may be remanded to the Superior Court.

BOURCIER, J., did not participate.

Fletcher, Chief Justice.

While hunting, Robert Lee Hines mistook his friend Steven Wood for a turkey and shot him dead. A jury convicted Hines of felony murder based on the underlying crime of possession of a firearm by a convicted felon, but acquitted him of felony murder based on the underlying felony of misuse of a firearm while hunting. On appeal, Hines contends that the jury’s verdict is invalid because the jury cannot acquit him of killing the victim by misusing a firearm, yet convict him of killing the victim by possession of the same firearm, without having made inconsistent factual findings. Because Georgia does not recognize an inconsistent verdict rule and Hines’s other enumerations are without merit, we affirm.1

Taken in the light most favorable to the jury’s verdict of guilty, *492the evidence at trial showed that, late in the afternoon of April 8, 2001, Hines and some of his friends and relatives went turkey hunting. They split into two groups, with Hines and his friend Randy Stoker hunting together in one area, and the victim, the victim’s wife, and Hines’s son hunting in a different area, approximately one-fourth mile away. As the sky was growing dark, Hines heard a turkey gobble, “saw it fan out and shot.” Hines’s shot went through heavy foliage and hit the victim approximately eighty feet away. Immediately thereafter, the victim’s wife screamed, “You shot Wood.” Hines and his son went for help, but the victim died before help could arrive.

On his return, Hines tried to convince his son and Stoker to take responsibility for the shooting. They both refused. The entire group, however, agreed to say that they did not know who had shot Wood. Hines removed his camouflage clothing and hid his shotgun and hunting gear before the police arrived.

Two days later, Hines admitted he had shot Wood and showed the police where he had hidden his shotgun. Hines’s son showed the police where he had hidden Hines’s hunting clothing and gear, which included unopened cans of beer. An open beer can and foam insulation wrap that belonged to Hines were found near where Hines had fired the fatal shot.

1. We conclude that the evidence at trial was sufficient for a reasonable trier of fact to have found Hines guilty beyond a reasonable doubt of the crimes for which he was convicted.2

2. The jury acquitted Hines of felony murder based on misuse of a firearm while hunting and convicted him of felony murder based on possession of a firearm by a convicted felon. Hines contends that the verdict is void because the jury made inconsistent determinations that he did not cause Wood’s death by misusing a firearm, but did cause his death by possessing the same firearm.

Georgia does not recognize an inconsistent verdict rule,3 which would permit a defendant to challenge the factual findings underlying a guilty verdict on one count as inconsistent with the findings underlying a not guilty verdict on a different count. A conviction on one count and acquittal on another related count may reflect a compromise or lenity by the jury rather than inconsistent factual conclusions, and Georgia courts generally will not look behind the jury’s decision to convict on certain counts and acquit on other counts.4 Therefore, Hines’s enumeration is without merit.

*4933. Hines contends that a convicted felon’s possession of a firearm while turkey hunting cannot be one of the inherently dangerous felonies required to support a conviction for felony murder. “The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human life.”5 A felony is “inherently dangerous” when it is “ ‘dangerous per se’ ” or “ ‘by its circumstances create [s] a foreseeable risk of death.’ ”6 Depending on the facts, possession of a firearm by a convicted felon can be an inherently dangerous felony.7

In Ford v. State,8 the defendant was a convicted felon who was unloading a handgun when it accidentally discharged, went through the floor, and killed an occupant of the apartment below. A jury convicted Ford for felony murder based on his felonious possession of a firearm. This Court reversed, finding that, because no evidence showed the defendant knew there was an apartment below him or that the victim was present, his possession of a firearm could not support a conviction for felony murder.9

In contrast to Ford, Hines intentionally fired his shotgun intending to hit his target. He had been drinking before he went hunting, and there was evidence that he had been drinking while hunting. He knew that other hunters were in the area and was unaware of their exact location. He also knew that other people visited the area in which he was hunting. He took an unsafe shot at dusk, through heavy foliage, at a target eighty feet away that he had not positively identified as a turkey. Under these circumstances, we conclude that Hines’s illegal possession of a firearm created a foreseeable risk of death.10 Accordingly, Hines’s violation of the prohibition against convicted felons possessing firearms was an inherently dangerous felony that could support a felony murder conviction.

4. Hines claims that the trial court improperly allowed a lay witness to offer an expert opinion that went to the ultimate issue before the jury regarding whether Hines misused a firearm while hunting. At trial, the State offered Department of Natural Resources Ranger Greg Hall as an expert on hunter safety and turkey hunting. The trial court refused to recognize Hall as an expert in those areas, but *494allowed him to testify that he would not teach students in his hunter safety classes that Hines’s shot was “permissible or allowable.”

Lay witnesses “may state their opinion only when it is based upon their own observations,” and their opinions are admissible “only when it is necessary in order for a witness to convey those same observations to the jury.”11 A lay witness may not state his opinion when the facts relied upon by the witness can be “clearly described for the jury, and the jury can rely upon those same facts and reach its own opinion.”12 “Otherwise, by stating an opinion the jury could reach for itself, the lay witness is deemed to have invaded the jury’s exclusive province.”13

Hall’s opinion that he would not teach hunter safety students that Hines’s shot was “permissible or allowable” was not a proper lay opinion because it was not necessary to convey Hall’s observations. Rather, Hall drew a conclusion based on his experience in hunter safety instruction regarding a matter that was not within the ken of the average juror (i.e., that Hines’s shot would not be taught as a permissible shot in hunter safety classes). Therefore, Hall’s testimony was admissible only as an expert opinion.

However, Hall’s experience and credentials were sufficient to qualify him to offer an expert opinion regarding whether Hines’s shot was permissible under hunter safety standards. Hall was a certified Georgia law enforcement officer, employed by the Department of Natural Resources in the law enforcement section of its Wildlife Resources Division. He had five years of experience teaching hunter safety courses, and his duties included enforcement of Georgia’s hunting laws. The jury heard these qualifications, and Hines had an opportunity to cross-examine Hall regarding his qualifications as well as the substance of his testimony. Additionally, Hall’s testimony was probative of whether Hines misused his firearm while hunting, but did not invade the jury’s exclusive province to determine whether Hines was guilty of that crime. Accordingly, the trial court did not err in allowing Hall to offer his opinion.14

5. Hines asserts that the evidence did not authorize the jury to reject his mistake of fact defense. Under OCGA § 16-3-5, “[a] person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if *495true, would have justified the act or omission.” Generally, however, “ignorance or mistake of fact constitutes a defense to a criminal charge only if it is not superinduced by the fault or negligence of the party doing the wrongful act.”15 Here, Hines’s mistaken belief that Wood was a turkey was due to his own fault in taking an unsafe shot under unsafe conditions at a target that he had not positively identified as legal game. Accordingly, the jury was authorized to reject Hines’s mistake of fact defense.

6. Hines’s remaining enumerations are also without merit.

(a) The trial court did not commit reversible error in permitting the medical examiner to testify that he had classified Wood’s death as a “homicide.” The medical examiner testified the classification had nothing to do with the defendant’s intent and meant only that “but for the actions of another individual” the decedent would not be dead.16

(b) Because the felon in possession of a firearm charge was an underlying felony for one of the felony murder counts, the trial court correctly denied Hines’s motion to bifurcate the possession charge from the trial of the other charges.17

(c) The trial court did not commit reversible error in leaving in the indictment the references to Hines’s habitual violator status and prior conviction for driving "under the influence. Hines withdrew the motion to redact his habitual violator status from the indictment, and the reference to the DUI conviction was harmless because Hines referred to his DUI conviction in his statement to the police, which was introduced into evidence without objection.18

(d) The trial court was within its discretion in admitting the photographs of the deceased.19

(e) Ranger Hall’s testimony regarding the hunter safety courses that he teaches did not elevate the standard under OCGA § 16-11-108 (misuse of a firearm while hunting) from a reasonable person standard to a reasonable person who has taken hunter safety courses standard. The trial court’s instructions to the jury followed the statutory language, and “absent clear evidence to the contrary,” “qualified jurors under oath” are presumed to follow the trial court’s instructions.20

(f) Hines waived any objection to the trial court’s omission of the general charge on the form of the verdict because he did not request *496the charge, and based on the charges that were given, its omission was not clearly harmful and erroneous as a matter of law.21

(g) The trial court did not commit reversible error when it attempted to clarify the jury’s continuing confusion regarding the crime of misuse of a firearm while hunting after repeatedly charging the jury correctly on the applicable statute, OCGA § 16-11-108.22

(h) The trial court did not err in recharging the jury on only the felony murder/misuse of a firearm counts, when those were the counts on which the jury had questions.23

Judgment affirmed.

All the Justices concur, except Sears, P. J, who dissents.

Sears, Presiding Justice,

dissenting.

Because I conclude that circumstances surrounding Hines’s commission of the status felony of possessing a firearm were not inherently dangerous within the meaning of our decision in Ford v. State,24 I dissent to the majority’s affirmance of Hines’s conviction of felony murder.

In Ford, this Court held that for a felony to serve as the basis for a felony murder conviction, it had to be inherently dangerous by its very nature or had to be committed under circumstances creating a foreseeable risk of death.25 We also held that the imputation of malice that justifies the felony murder rule is dependent on the “perpetrator’s life-threatening state of mind accompanying [the] commission [of the underlying felony].”26 In Ford, however, we did not specify how to determine whether a particular felony, either by its nature or as it was committed, was inherently dangerous to human life. Because of the severe punishments that accompany a conviction of murder27 and because it is illogical to impute malice for purposes of felony murder “ ‘ “from the intent to commit a felony not [foreseeably] dangerous to human life,” ’ ”28 I conclude that for purposes of our felony-murder doctrine, a felony is inherently dangerous per se or as committed if it carries “ ‘a high probability’ that [a human] death will result.”29 This *497standard will ensure that our felony murder rule is not inappropriately expanded by “reducing the seriousness of the act which a defendant must commit in order to be charged with murder.”30

In the present case, I conclude that the possession of a firearm by Hines was not committed in a fashion that was inherently dangerous and that carried a high probability that death would result. The fact that Hines was hunting, a dangerous sport; the fact that he had been drinking before he went hunting; the fact that he was hunting at dusk; and the fact that he fired a shot when he knew other hunters were in the general area in which he was hunting may establish that Hines was negligent, but do not establish that his acts created a high probability that death to a human being would result, or that he had a “life-threatening state of mind.”31 Moreover, as for the fatal shot, Hines testified that he heard a turkey gobble, that he “saw it fan out,” and that he then fired at the object. Even though Hines may not, as stated by the majority, have positively identified his target as a turkey, he had to make a split-second decision regarding his target and concluded, based on hearing a gobble and seeing something “fan out,” that the object was a turkey. I cannot conclude that, under these circumstances, the failure of the hunter to identity his target beyond doubt carried a high probability that a human being would be killed or that he acted with a “life-threatening state of mind.”32

The death in this case is clearly a tragic incident, and Hines’s conduct before and after the shooting was reprehensible. But the sanction of life in prison for murder should be reserved for cases in which the defendant’s moral failings warrant such punishment. Here, the application of the felony murder statute to Hines’s actions punishes him more severely than his culpability merits. In this regard, Hines will be serving the same punishment — life in prison — as an arsonist convicted of felony murder who firebombed an apartment that he knew was occupied, causing the death of two young children,33 and the same punishment as an armed robber convicted of felony murder who entered a store with a firearm and shot and killed a store employee.34 This result is unwarranted and unnecessary, as Hines could be prosecuted and convicted of an appropriate *498lesser crime, such as involuntary manslaughter35 or the misuse of a firearm while hunting.36

Decided March 27, 2003

Reconsideration denied April 11, 2003.

Larry B. Hill, for appellant.

Herbert E. Franklin, Jr., District Attorney, Thurbert E. Baker, Attorney General, Jill M. Zubler, Assistant Attorney General, for appellee.

One final note. Hunting is a time-honored recreational activity encouraged by the State of Georgia and enjoyed by many of our State’s citizens. No doubt a number of hunters have probably engaged in negligent hunting practices similar to those in this case. Although I do not condone such careless practices, neither can I agree with subjecting so many hunters to the possibility of spending life in prison when they do not fastidiously follow proper hunting procedures and accidentally shoot a fellow hunter.

For the foregoing reasons, I dissent to the majority opinion.

Opinion

SULLIVAN, J.

Defendant Bozzie Bryant Burton III, a 16-year-old minor was charged by information with two counts of murder (Pen. Code, § 187) and a third count of assault with intent to commit murder. (Pen. Code, § 217.) After a jury trial he was found guilty as charged on two counts of murder in the first degree and guilty of assault (Pen. Code, § 240), a lesser offense than that charged in the third count, but necessarily included therein. Defendant was sentenced to the term, prescribed by law on the two counts of murder and to 180 days in county jail on the count of assault, each sentence to run concurrently. He appeals from the judgment of conviction.

Defendant contends that his confession to the above charges was obtained in violation of the rules announced in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974] and that its admission into evidence over his objection constitutes reversible error. Wé agree and, therefore, reverse the judgment.

Count Three (Assault on Vicky Price)

On December 13, 1968, at 9:15 p.m., Vicky Price was sitting in her car, which was parked in a parking lot at a shopping center in Compton. Defendant approached her car on the driver’s side, put a gun to her head and ordered her to get out of the car. While she was attempting to comply with this order, she heard a voice addressing her from the other side of the car. The next thing she knew defendant’s gun had gone off and wounded her. Defendant fled.

Counts One and Two (Murders of Joseph and Isabelle Diosdado)

Six days later on December 19, 1968, about noon, the dead bodies of Joseph and Isabelle Diosdado were discovered lying on the floor of the back *379room of their feed store in Compton. They had each been shot twice. The cash register was empty and coins were scattered on the floor. The bullet recovered from Vicky Price and the bullets removed from the Diosdados were all fired from the same gun.

On February 14, 1969, at 7 a.m., defendant was arrested and taken to the Compton police station. Upon arrival at the police station, he was placed in a cell near the door, then underwent booking procedures for 30 to 40 minutes, and finally was removed to another cell for questioning. While he was being booked, his father arrived at the police station and asked to see him. The request was refused. The police thereafter advised defendant of his Miranda rights, interrogated him, and obtained a confession.

In fact, defendant made statements on three separate occasions in which he: (1) admitted shooting Vicky Price, but claimed he was strongly under the influence of marijuana; (2) admitted being present at the shooting of the Diosdados, but denied doing the shooting and (3) admitted shooting the Diosdados and explained the circumstances in detail.

When the case was called for trial, defendant moved, pursuant to section 405 of the Evidence Code, to exclude the confession on the ground that it was (1) involuntary and (2) illegally obtained in violation of Miranda v. Arizona, supra, 384 U.S. 436. A hearing was held prior to the selection of the jury. At the conclusion of the hearing the trial judge, without specifically reviewing the evidence, found that the People had met its burden of showing the confession was voluntary, not coerced and not illegally obtained.

Defense counsel pointed out to the court in summation at the end of the hearing that “on several occasions he [defendant] asked to see his parents, and also has heard testimony from a parent, namely the father, that on several occasions he asked to see the minor, and on each occasion each was refused permission one to see the other,” but did not specifically urge the defendant’s request to see his parents invoked his Fifth Amendment privilege under Miranda v. Arizona, supra, 384 U.S. 436.1 Since defendant now raises that contention before us, we must first decide whether it was established that defendant did in fact request to see his parents.

*380Defendant testified: “That morning when I came in [taken to police station for booking] after they had put me in one cell and put me in another cell, and I asked them could I see my parents, and they said, ‘No’.” This testimony was never contradicted. When urged to the court by defense counsel, it elicited no argument from opposing counsel, nor- indication of disbelief from the trial court. It was not at all necessary for the trial court to disbelieve this testimony to determine that defendant, who on three separate occasions made a full confession, did so freely and voluntarily after having specifically and intelligently waived his Miranda rights, which a police officer had carefully explained to defendant.

The People urge, however, that .the testimony of Officer Armstrong, quoted in the margin,2 adequately contradicted defendant’s testimony, because the officer’s testimony indicates he was not with defendant when defendant claimed to make the above statement. Defense counsel indicated to defendant in his questioning with respect to this matter that defendant’s request had been directed to Officer Armstrong, that it was the latter who had denied the request and defendant agreed.

We think the above is inadequate to contradict defendant’s testimony. At no time did Officer Armstrong or any other officer deny defendant requested to see his parents. We are persuaded, after a close reading of the testimony presented at the section 405 hearing, that whether defendant did or did not request to see his parents was not considered a major issue at that time. It has become so upon appeal. Defendant’s testimony that he requested to see his parents was uncontradicted at that time, and stands unchallenged now when viewed upon review except for the quoted testimony of Officer Armstrong, which in itself is inadequate to meet the People’s burden of showing that defendant did not say what he testified he did say. Therefore, we are satisfied that the record adequately establishes that defendant requested to see his parents and that this request was denied.

It is unclear from the record whether this request was made during transfer from the booking cell to the interview room or in the interview room itself. However, the request was made just prior to the commencement of interrogation and at a time when defendant’s father was at the police station.

*381Prior to commencing questioning, but subsequent to the denial of defendant’s request to see his parents, a police officer carefully explained to defendant his Miranda rights. The record shows that when thus advised of his rights, defendant indicated to the officer that he understood such explanation and that he waived these rights. Thereafter he made a full confession on three separate occasions.

Defendant, although not claiming this confession to have been involuntary, contends that it was unlawfully obtained since his request to see his parents at or near the commencement of interrogation was an invocation of his Fifth Amendment privilege under the rules established in Miranda v. Arizona, supra, 384 U.S. 436, and further elaborated in this state in People v. Fioritto (1968) 68 Cal.2d 714 [68 Cal.Rptr. 817, 441 P.2d 625]; People v. Ireland (1969) 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323] and People v. Randall (1970) 1 Cal.3d 948 [83 Cal.Rptr. 658, 464 P.2d 114]. We agree.

The United States Supreme Court in Miranda, noting that incommunicado interrogation is at odds with an individual’s right not to be compelled to incriminate himself, stated: “Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the, defendant can truly be the product of his free choice.” (Miranda v. Arizona, supra, 384 U.S. 436, 458 [16 L.Ed.2d 694, 714].) In Miranda, the Supreme Court set down four warnings which must be given persons in custodial surroundings, and then elaborated on the procedure subsequent to the giving of such warnings, as follows: “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. [Fn. omitted.] At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” (Miranda v. Arizona, supra, 384 U.S. 436, 473-474 [16 L.Ed.2d 694, 723].) In People v. Randall, supra, 1 Cal.3d 948, 954, we observed that “This obligation on the police to entirely terminate custodial interrogation upon invocation of the Fifth Amendment privilege is one of the primary ‘protective devices’ fashioned by Miranda. [Fn. omitted.]”

In cases where the suspect makes no express assertion, the crucial question is what behavior is necessary to constitute an invocation of the Fifth Amendment privilege. We have stated several times that no particular *382form of words or conduct is necessary to constitute such an invocation. “A suspect may indicate such a wish in many ways.” (People v. Ireland, supra, 70 Cal.2d 522, 535.) “To strictly limit the manner in which a suspect may assert the privilege, or to demand that it be invoked with unmistakable clarity (resolving any ambiguity against the defendant) would subvert Miranda's prophylactic intent.” (People v. Randall, supra, 1 Cal.3d 948, 955.)

Any words or conduct which “reasonably appears, inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time [fn. omitted]” (People v. Randall, supra, 1 Cal.3d 948, 956) must be held to amount to an invocation of the Fifth Amendment privilege. In Fioritto we held that a refusal by a suspect to sign a waiver of his constitutional rights amounted to an invocation of his Fifth Amendment privilege. In Ireland we held that when the suspect stated “Call my parents for my attorney” he thereby asserted the privilege. In Randall we held that a suspect’s telephone call to his attorney in and of itself invoked the privilege.

In this case we are called upon to decide whether a minor’s request to see his parents “reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time.” (People v. Randall, supra, 1 Cal.3d 948, 956.) It appears to us most likely and most normal that a minor who wants help on how to conduct himself with the police and wishes to indicate that he does not want to proceed without such help would express such desire by requesting to see his parents. For adults, removed from the protective ambit of parental guidance, the desire for help naturally manifests in a request for an attorney. For minors, it would seem that the desire for help naturally manifests in a request for parents. It would certainly severely restrict the “protective devices” required by Miranda in cases where the suspects are minors if the only call for help which is to be deemed an invocation of the privilege is the call for an attorney. It is fatuous to assume that a minor in custody will be in a position to call an attorney for assistance and it is unrealistic to attribute no significance to his call for help from the only person to whom he normally looks—a parent or guardian. It is common knowledge that this is the normal reaction of a youthful suspect who finds himself in trouble with the law.

The People advance two arguments in opposition. First, they contend that defendant’s request to see his parents did not clearly give notice to the police that he was asserting his Fifth Amendment privilege, since such request could have been made for many purposes. We rejected the same argument in Randall. There the People argued that a telephone call to an attorney could manifest a desire to get bail, or merely inform him *383of his arrest just as well as manifesting a desire to remain silent or have the attorney present, and that the equivocal nature of the telephone call made it distinguishable from Ireland where the defendant upon being asked whether he had anything to say, responded “Call my parents for my attorney.” We there said: “In any event, we are not disposed to assume as a general matter that a telephone conversation with an attorney such as occurred in the case at hand is not a manifestation of a suspect’s intention to assert his privilege. . . . The People have the burden of demonstrating that a questioned confession meets the constitutional tests of admissibility. [Citations.] When, as appears here, the suspect to the knowledge of the police completes a call to his attorney, the People—if they contend that the fact of such a call should not be considered an invocation of the privilege—must affirmatively demonstrate that the suspect was not thereby indicating a desire to remain silent until he had obtained the full advice of his counsel.” (People v. Randall, supra, 1 Cal.3d 948, 957.)

Similarly here we are not disposed to assume as a general matter that a request by a minor at or near the inception of interrogation to see his parents is not an indication of that minor’s unwillingness to continue talking with police or of a desire for help in how to conduct himself with police and thus not a manifestation of that minor’s intention to assert his privilege. Therefore, the People have the burden- of affirmatively demonstrating that such was not the desire on the part of defendant. Here, the People did not meet this burden.

Secondly, the People contend that because defendant’s request occurred prior to the interrogation and prior to the giving of the Miranda warning, it was unlikely that the police would understand the request as an invocation of the privilege. The Supreme Court clearly stated in Miranda, as quoted, ante, page 381, that “[i]f the individual indicates ... at any time prior to .. . questioning, that he wishes to remain silent, the interrogation must cease.” (Fn, omitted; italics added.) (Miranda v. Arizona, supra, 384 U.S. 436, 473-474.) Indeed, this argument really seems to be a further elaboration of the lack of notice argument discussed above, and the short answer is that the People have offered nothing in the way of affirmative proof that defendant did not intend to assert his. privilege.

Accordingly we hold that when, as in the instant case, a minor is taken into custody and is subjected to interrogation, without the presence of an attorney, his request to see one of his parents, made at any time prior to or during questioning, must, in the absence of evidence *384demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege. The police must cease custodial interrogation immediately upon exercise of the privilege. The police did not so cease in this case, the confession obtained by the subsequent questioning was inadmissible, and, therefore, the admission of such confession was prejudicial per se and compels reversal of the judgment on all counts. (People v. Randall, supra, 1 Cal.3d 948, 958; and cases there cited.) The admission of this confession constitutes reversible error even though it was subsequently preceded by a knowing and intelligent waiver of the privilege, as we held under identical circumstances in Fioritto, Ireland and Randall, because: “After the initial assertion of the privilege, the defendant is entitled to be free of police-initiated attempts to interrogate him. Any statements made by a defendant in response to such questioning cannot be characterized as voluntary.” (People v. Randall, supra, 1 Cal.3d 948, 958.)

We now turn to defendant’s contention that it was error, in the circumstances of this case, to instruct the jury on first degree felony murder, because the underlying felony was armed robbery. He claims that armed robbery is an offense included in fact within the offense of murder and, therefore, under the rule announced in People v. Ireland, supra, 70 Cal.2d 522, 538-540 as applied in People v. Wilson (1969) 1 Cal.3d 431 [82 Cal.Rptr. 494, 462 P.2d 22], such offense cannot support a felony-murder instruction.3

“Murder,” as defined in Penal Code section 187, “is the unlawful killing of a human being . •. . with malice aforethought.” In Ireland, we said: “The felony-murder rule operates (1) to posit the existence of malice aforethought in homicides which are the direct causal result of the perpetration or attempted perpetration of all felonies inherently dangerous to human *385life, and (2) to posit the existence of malice aforethought and to classify the offense as murder of the first degree in homicides which are the direct causal result of those six felonies specifically enumerated in section 189 of the Penal Code. [Citations.]” (People v. Ireland, supra, 70 Cal.2d 522, 538.)

The net effect of this imputation of malice by means of the felony-murder rule is to eliminate the possibility of finding unlawful killings resulting from the commission of a felony to be manslaughter, rather than murder. Even intentional killings can be mitigated to voluntary manslaughter if the killing occurred with sufficient provocation to arouse the reasonable man to a fit of passion or sudden quarrel or if the defendant did not attain the mental state of malice due to mental illness, mental defect or intoxication. (People v. Stines (1969) 2 Cal.App.3d 970, 976 [82 Cal.Rptr. 850].) Unintentional killings in the appropriate circumstances may well be mitigated to involuntary manslaughter, or even not be subject to criminal penalty.

In Ireland the “defense . . . rested its entire case upon a contention that defendant’s mental state at the time of his act—as affected by cumulative emotional pressure and the ingestion of alcohol and prescribed medications was not that required for murder.” (People v. Ireland, supra, 70 Cal.2d 522, 531.) The defendant in that case shot his wife with a gun. The judge instructed the jury on the felony-murder rule, utilizing assault with a deadly weapon as the supporting felony. The effect of such instruction, as Ireland pointed out (70 Cal.2d at p. 539, fn. 13) was, therefore, to substantially eviscerate the defense of diminished capacity to negative malice, since malice was imputed. The net effect of this imputation would be to hold that all intentional killings accomplished by means of a deadly weapon were murder regardless of the circumstances and could never be mitigated to manslaughter, since all such killings included in fact an assault with a deadly weapon. We held that such effect was impermissible; “This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.” (Fn. omitted.) (People v. Ireland, supra, 70 Cal.2d 522, 539.)

In Wilson the underlying felony which supported the felony-murder instruction was burglary—specifically entry coupled with the intent to commit assault with a deadly weapon. Since in Ireland we had held that assault with a deadly weapon could not support an instruction on second degree felony murder, in Wilson we were faced with the question whether *386it could support first degree felony murder because coupled with an entry. We concluded there was no meaningful distinction between assaults with deadly weapons indoors and outdoors, saying: “Where the intended felony of the burglar is an assault with a deadly weapon, the likelihood of homicide from the lethal weapon is not significantly increased by the site of the assault. Furthermore, the burglary statute in this state includes within its definition numerous structures other than dwellings as to which there can be no conceivable basis for distinguishing between an assault with a deadly weapon outdoors and a burglary in which the felonious intent is solely to assault with a deadly weapon.” (People v. Wilson, supra, 1 Cal.3d 431, 441.) Thus, even though burglary is one of the felonies specifically enumerated in Penal Code section 189, we excluded burglary from the operation of the felony-murder rule in those cases where the intended felony was assault with a deadly weapon for the reasons stated in Ireland.

Defendant contends that the language and reasoning of Ireland and Wilson compel us to hold that armed robbery is included in fact within murder and, therefore, cannot support a felony-murder instruction.4 He argues that armed robbery includes as a necessary element assault with a deadly weapon by the following chain of reasoning: robbery “is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear” (Pen. Code, § 211); thus robbery is assault (force or fear directed against a person) coupled with larceny, which when accomplished by means of a deadly weapon necessarily includes in fact assault with a deadly weapon; any charge of murder with respect to a killing arising out of armed robbery then necessarily includes in fact assault with a deadly weapon and cannot support a felony-murder instruction.

The net effect of defendant’s argument would be to eliminate the application of the felony-murder rule to all unlawful killings which were com*387mitted by means of a deadly weapon, since in each case the homicide would include in fact assault with a deadly weapon, even if the homicide resulted from the commission of one of the six felonies (arson, rape, mayhem, robbery, burglary or lewd and lascivious acts upon the body of a child) enumerated in section 189 of the Penal Code. It is, of course, possible to interpret our language in Ireland5 and Wilson to mean merely that if the facts proven by the prosecution demonstrate that the felony offense is included in fact within the facts of the homicide and integral thereto, then that felony cannot support a felony-murder instruction. However, we reject this interpretation of that language and its consequent assertion that the felony-murder rule has been abolished in all homicides accomplished by means of a deadly weapon as unwarranted both in logic and in principle.

We conclude that there is a very significant difference between deaths resulting from assaults with a deadly weapon, where the purpose of the conduct was the very assault which resulted in death, and deaths resulting from conduct for an independent felonious purpose, such as robbery or rape, which happened to be accomplished by a deadly weapon and therefore technically includes assault with a deadly weapon. Our inquiry cannot stop with the fact that death resulted from the use of a deadly weapon and, therefore, technically included an assault with a deadly weapon, but must extend to an investigation of the purpose of the conduct. In both Ireland and Wilson the purpose of the conduct which eventually resulted in a homicide was assault with a deadly weapon, namely the infliction of bodily injury upon the person of another. The desired infliction of bodily injury was in each case6 not satisfied short of death. Thus, there was a single course of conduct with a single purpose.

However, in the case of armed robbery, as well as the other felonies enumerated in section 189 of the Penal Code, there is an independent felonious purpose, namely in the case of robbery to acquire money or property belonging to another. Once a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning—if a death results from his commission of that felony it will be first degree murder, regardless of the *388circumstances. This court has reiterated numerous times that “The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.” (People v. Washington (1965) 62 Cal.2d 777, 781 [44 Cal.Rptr. 442, 402 P.2d 130].) The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.

Wilson, when properly understood, does not eliminate this rule as urged by defendant, but merely excludes from its effect one small area of conduct, which would be irrationally included, due to the unusual nature of burglary. The key factor as indicated earlier in the enumerated felonies is that they are undertaken for a felonious purpose independent of the homicide. In the normal case, burglary is also undertaken with an independent felonious purpose, namely to acquire the property of another. In such instances the felony-murder rule would apply to burglary as well, even if the burglary were accomplished with a deadly weapon. However, in Wilson the entry was coupled with the intent to commit assault with a deadly weapon, the defendant in that case bursting through the bathroom door intending to do violent injury upon the body of his wife. We were there presented with the exact situation we faced in Ireland, namely a single purpose, a single course of conduct, except that in Wilson the single course of conduct happened to include an entry, and thus technically became burglary all of which brought the incident within the ambit of section 189 of the Penal Code. We merely excluded from the first degree felony-murder rule the special circumstances of Wilson where the entry was with the intent to commit assault with a deadly weapon because we found them indistinguishable from those in Ireland. We regard the holding in Wilson as specifically limited to those situations where the entry is coupled with the intent to commit assault with a deadly weapon.

Defendant in this case by embarking upon the venture of armed robbery brought himself within the class of persons who the Legislature has concluded must avoid causing death or bear the consequences of first degree murder. The trial judge quite correctly instructed on felony murder based on homicides directly resulting from the commission of armed robbery.

*389Defendant next contends that section 405 of the Evidence Code, by making the trial judge’s determination of the voluntariness of a confession final, violates his right to trial by jury embodied in article I, section 7 of the state Constitution. He argues that it was error for the trial judge not to instruct the jury to determine for itself the question of the voluntariness of a confession, once the trial judge had made a preliminary determination of voluntariness.

Prior to the enactment of section 405 of the Evidence Code, effective January 1, 1967, the law was as defendant now urges. We held in People v. Gonzales (1944) 24 Cal.2d 870 [151 P.2d 251] that once the trial judge had made an initial determination that the confession was voluntary, the defendant was entitled to present evidence to the jury for its final determination as to voluntariness. In People v. Bevins (1960) 54 Cal.2d 71 [4 Cal.Rptr. 504, 351 P.2d 776], we held that the court had a duty to instruct the jury sua sponte to determine for itself the voluntariness of the confession, and if it found it involuntary, then to disregard the confession altogether.

The Legislature by enacting section 405 of the Evidence Code specifically rejected this rule. In the legislative committee comment to the section, the reason for the change is carefully explained: “The existing law is based on the belief that a jury, in determining the defendant’s guilt or innocence, can and will refuse to consider a confession that it has determined was involuntary even though it believes that the confession is true. Section 405, on the other hand, proceeds upon the belief it is unrealistic to expect a jury to perform such a feat. Corroborating facts stated in a confession cannot but assist the jury in resolving other conflicts in the evidence. The question of voluntariness will inevitably become merged with the question of guilt and the truth of the confession; and, as a result of this merger, the admitted confession will inevitably be considered on the issue of guilt. The defendant will receive a greater degree of protection if the court is deprived of the power to shift its fact-determining responsibility to the jury and is required to exclude a confession whenever it is not persuaded that the confession was voluntary.”

This procedure has received at least the tacit approval of the United States Supreme Court (see Jackson v. Denno (1963) 378 U.S. 368, 378 [12 L.Ed.2d 908, 916, 84 S.Ct. 1774, 1 A.L.R.3d 1205]). The identical procedure is utilized to determine the question whether evidence has been obtained in violation of the law of search and seizure and has been approved by this court. (People v. Gorg (1955) 45 Cal.2d 776, 780-781 [291 P.2d 469].) The Legislature’s finding that a defendant will be better protected by thrusting the full responsibility upon the trial judge is en*390tirely reasonable. Moreover, the Legislature has quite reasonably indicated that it is removing from the jury a task that was in all practical terms impossible—in short, nothing of substance has been removed from the province of the jury. Defendant has suggested no reason why the voluntariness of a confession must be determined by a jury while the legality of the seizure of evidence need not be. Neither has defendant cited any authority indicating that a determination of the voluntariness of a confession is an inherent part of the right to a jury trial expressed in article I, section 7 of the state Constitution. We reject defendant’s contention that section 405 of the Evidence Code violates article I, section 7 of the state Constitution.

Defendant finally contends that the instruction given with respect to proof of intent (CALJIC No. 73)7 conflicted with and vitiated the instruction given on diminished capacity (CALJIC No. 305.1 (New) 1967 Pocket Part).8 The gist of the instruction on intent was to limit lack of, sound mind to idiocy, lunacy, or insanity and thus order the jury to find the requisite sound mind supporting the requisite intent unless the defendant was an idiot, a lunatic or insane. Furthermore, this instruction directed the jury to assume defendant was sane. However, the instruction on diminished capacity quite correctly informed the jury that a “substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause” could negate the ability to form specific required mental states. There is certainly a potential conflict in the instruction which could well mislead the jury.

We need not now decide whether such a conflict would be fatal, but for purposes of guidance of the court upon retrial direct the trial court’s at*391tention to CALJIC (3d ed.)9 numbers 3.34, 3.35 and 8.77 where the problem has been perceived and very adequately answered. In the note on use of the instruction on the proof of intent (CALJIC (3d ed.) No. 3.34), the editors suggest that trial judges delete the second paragraph directing the jury to assume defendant is of sound mind if there is evidence of diminished capacity. It is noteworthy that in the revised instruction on intent, sound mind is left undefined and the sentence referring to idiots, lunatics or insane people has been deleted. We are satisfied that this is a correct and fully adequate way to handle the situation.

The judgment is reversed.

Wright, C. J., Peters, J., Tobriner, J., Mosk, J., and Burke, J., concurred.

McCOMB, J.

I dissent. I would affirm the judgment for the reasons ex*392pressed by Mr. Justice Allport in the opinion prepared by him for the Court of Appeal, Second Appellate District, Division Three (People v. Burton, 2 Crim. 18352, filed June 17, 1971, certified for nonpublication) .

*961OPINION

LEWIS, Viee-Presiding Judge.

1 Eric Jose Barnett, Appellant, was tried by jury and found guilty of second degree felony murder, in violation of 21 0.8.2001, § 701.8(2), in the District Court of Okmulgee County, Case No. CF-2009-2.1 The jury sentenced Appellant to twenty-three (28) years imprisonment. The Honorable H. Michael Claver, District Judge, pronounced judgment and sentence accordingly.2 Mr. Barnett appeals the following propositions of error:

1. The trial court's refusal to instruct the jury on Appellant's theory of defense deprived him of his rights to a fair trial and to the due process of law, in violation of the Sixth and Fourteenth Amendments of the Federal Constitution and in violation of Article 2, §§ 7, 19, and 20 of the Oklahoma Constitution;

2. The trial court's exclusion of extrinsic evidence concerning Vernon Sutton's violent character deprived the defendant of his right to present a defense, to a fair trial, and to due process guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution and by Article 2, §§ 7, 19, and 20 of the Oklahoma Constitution;

3. Prosecutorial misconduct deprived Appellant of his constitutional right to a fair trial and due process of law, in violation of the Fifth, Sixth, and Fourteenth Amendments of the Federal Constitution and in violation of Article 2, §§ 7, 19, 20, and 21 of the Oklahoma Constitution;

4. -Mr. Barnett was denied effective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the Federal Constitution and Article 2, §§ 7 and 20 of the Oklahoma Constitution;

5. Appellant's conviction for second degree felony murder must be vacated because the merger doctrine prohibits using the act that caused the decedent's death as a predicate felony in a felony murder prosecution;

6. Under the unique cireumstances of this case, imposition of a twenty-three year sentence for a seventeen-year-old offender is excessive and should be modified;

7. The accumulation of errors deprived Appellant of a fair trial and reliable verdict.

FACTS

T2 Appellant lived with his mother and younger sister in Okmulgee, Oklahoma. On the evening of August 21, 2008, he and two friends were standing outside his house when the decedent, Vernon Sutton, and another man pulled up to the house, got out of the car, and walked toward them. Sutton apparently knew one of the men standing with Appellant from prison. Appellant noticed that Sutton had one blue eye. A black man with one blue eye had raped his mother years before and been convicted of the crime. Appellant went inside and told his mother that the man who had raped her was standing in the yard.

{3 Appellant's mother came outside to confront Sutton, who was in fact the conviet-ed rapist who had assaulted her. She asked him if he remembered her. Sutton smiled and said he knew where he was. Appellant's mother angrily demanded that he leave. When he refused, Appellant picked up a length of lumber and went toward Sutton. Sutton prepared to fight, but a passing Ok-mulgee police officer intervened. When Appellant's mother explained who Sutton was, the officer made him leave the premises. Sutton smirked at Appellant and his mother and told them he would be back, and that he "had something" for them.

*962T4 Almost a month later, Appellant received a text from one of his friends, Breylon Griffin, who had been present during the confrontation with Vernon Sutton. Griffin's text told Appellant "dat n*gg*r's ova here" at another house in Okmulgee. Appellant called Griffin and learned that Sutton was visiting with some other men at a house in Okmulgee. Appellant called Jennifer MeNac and asked her to give him a ride to that location. She initially refused but then changed her mind. Appellant was already walking toward the location when MeNac picked him up.

T5 As they neared the house, Appellant put the hood of his jacket over his head and covered his face with a bandana. When they reached the house where Vernon Sutton and others were standing, Appellant leaned out and fired three or four shots, fatally striking Sutton in the chest and abdomen. Five days after the shooting, Appellant told police in an interview that he was out of town when the shooting happened. At trial, Appellant admitted the shooting, but said he killed Sutton because he was afraid Sutton would come back to harm his family.

ANALYSIS

$6 In Proposition One, Appellant challenges the trial court's refusal to give requested instructions on self-defense and defense of another. We review the trial court's rulings on requested instructions for abuse of discretion. Dill v. State, 2005 OK CR 20, 111, 122 P.3d 866, 869. An instruction on a theory of defense is required "when evidence has been introduced at trial that is adequate to raise that defense, ie., to establish a prima facie case" of that defense. Malone v. State, 2007 OK CR 34, 1 22, 168 P.3d 185, 196. Appellant's claim must fail. Evidence that Appellant feared Sutton does not raise an issue of self defense or defense of another, where the evidence showed that Appellant had no reasonable belief that he or his family were in imminent danger of being attacked or killed by Sutton at the time Appellant used deadly force. Instruction Nos. 8-2, 8-6, OUJI-CR(@d); Perryman v. State, 1999 OK CR 39, T 9, 990 P.2d 900, 903-04. Proposition One is denied.

T7 In Proposition Two, Appellant argues that the trial court erred in excluding certain evidence offered by the defense tending to prove the violent character of the victim. We review these rulings for abuse of discretion, and find none. Hancock v. State, 2007 OK CR 9, ¶ 72, 155 P.S8d 796, 813. Proposition Two requires no relief.

8 Proposition Three claims that prosecutorial misconduct denied Appellant a fair trial. Due to the lack of a timely objection to any of the challenged statements, Appellant has waived all but plain error. Matthews v. State, 2002 OK CR 16, 138, 45 P.3d 907, 920. This Court will reverse for prosecutorial misconduct where grossly improper and unwarranted argument affects a defendant's rights. Howell v. State, 2006 OK CR 28, 111, 138 P.3d 549, 556. The comments challenged on appeal were not improper. Warner v. State, 2006 OK CR 40, 1 179, 144 P.3d 888, 888; Hogan v. State, 2006 OK CR 19, 191, 139 P.3d 907, 986. Proposition Three is denied.

19 Appellant argues in Proposition Four that he was denied the effective assistance of counsel. Appellant also filed an application for evidentiary hearing on his Sixth Amendment claims pursuant to Rule 3.11(B)(8)(b), Rules of the Court of Criminal Appeals, Title 22, Ch. 18 (2011), App. Ineffective counsel claims must overcome a strong initial presumption that counsel rendered reasonable professional assistance, by showing: (1) that trial counsel's performance was deficient; and (2) that he was prejudiced by the deficient performance. If Appellant demonstrates that counsel's representation was objectively unreasonable under prevailing professional norms, he must also show that he suffered prejudice, defined as a reasonable probability that, but for counsel's unprofessional errors, the outcome of the trial or sentencing would have been different Hancock, 2007 OK CR 9, T1 106-107, 155° P.3d 796, 821. To warrant an evidentiary hearing under Rule 3.11(B)(8)(b)(i), Appellant's application and supporting materials must set forth "sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was *963ineffective for failing to utilize or identify the complained-of evidence." Reviewing Appellant's application and his arguments, we find no evidentiary hearing is required and no relief is warranted. Proposition Four is without merit.

110 In Proposition Five, Appellant argues that his conviction for second degree felony murder violates the merger doctrine, or independent crime requirement, recognized by our case law in Quillen v. State, 2007 OK CR 22, 163 P.3d 587, and earlier cases. Although the State charged Appellant in Count 2 with first degree malice aforethought murder, the trial court also instruct ed the jury on the lesser included offense of second degree felony murder in the commission of using a vehicle to facilitate the intentional discharge of a firearm.3 The jury acquitted Appellant of first degree murder, but convicted him of second degree murder in the commission of the underlying felony.4 Counsel's failure to object to the second degree felony murder instruction at trial waived all but plain error. Eizember v. State, 2007 OK CR 29, ¶ 110, 164 P.3d 208, 236. We therefore consider whether Appellant's conviction of second degree murder in the commission of this underlying felony is plain error; that is, an error which goes "to the foundation of the ease," or which takes from a defendant "a right which was essential to his defense." Simpson v. State, 1994 OK CR 40, ¶ 12, 876 P.2d 690, 695.

111 Under this Court's merger doctrine, or independent crime requirement, "[iJn order for the taking of human life in the commission of a felony to constitute murder, the precedent felony must constitute an independent crime not included within the resulting homicide." Sullinger v. State, 1984 OK CR 44, 13, 675 P.2d 472, 473. The merger doctrine is a historical feature of our case law, and is not based on any statutory or constitutional text. Quillen, 2007 OK CR 22, 4, 163 P.3d at 589.5 This Court in Quillen recently reaffirmed its adherence to the merger doctrine as it "has been applied in Oklahoma for many years," first being mentioned in Jewell v. Territory, 4 Okla. 58, 48 P. 1075 (Okla.1896), and "a part of Oklahoma's jurisprudence ever since." Quillen, 2007 OK CR 22, ¶ 3, 168 P.3d 587, 589.

Every person who uses any vehicle to facilitate the intentional discharge of any kind of firearm, crossbow or other weapon in conscious disregard for the safety of any other person or persons, including an unborn child as defined in Section 1-730 of Title 63 of the Oklahoma Statutes, shall upon conviction be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a term not less than two (2) years nor exceeding life.

¶12 In Quillen, the defendant was a drug addict who gave birth at the home of a friend. Believing that her baby was healthy, she took the baby home. The defendant also feared that child welfare officials would take the baby away from her at the hospital because of her cocaine use. Later that evening, the baby looked pale and his breathing seemed shallow. The defendant noticed blood in his diaper when she changed him. She called her grandmother for advice and then tied some string tightly around the baby's umbilical cord stump, and later fell asleep with the baby at her side. In the night, the baby bled to death through the umbilical cord, due to the defendant's failure to seek medical care. Id., 2007 OK CR 22, 1 5 n. 3, 168 P.3d at 590 n. 3.

¶ 13 The State charged the defendant with first degree child abuse murder. The trial court also instructed the jury on the lesser included offense of second degree murder, in the commission of the underlying felony of *964child neglect.6 The jury convicted the defendant of this lesser offense. Id., 2007 OK CR 22, ¶ 1, 168 P.3d at 589. The appellant in Quillen argued on appeal that this conviction violated the merger doctrine, because her commission of felony child neglect-failing to get medical care for her newborn child-was not a felony independent from the homicidal act. The State argued that the plain language of the second degree murder statute authorized a conviction where the killing of a human being results from the commission of any felony other than the unlawful acts enumerated in the first degree felony murder statute. Id., 2007 OK CR 22, ¶¶ 3-4, 163 P.3d at 589. The State reasoned that this Court's application of the merger doctrine to void a conviction authorized by the plain language of the statute would defeat legislative intent, and urged the Court to abandon the merger doctrine. Id.

¶14 This Court in Quillen rejected the State's arguments, finding that the merger doctrine was "not based on statutory language" but derived from policy considerations:

[W]ithout the merger doctrine, any person who commits a felony, other than one enumerated for First Degree Felony Murder, from which a death that is not excusable or justified results, can be prosecuted for See-ond Degree Felony Murder. Although the State argues that such concerns are no longer viable, we find this argument unpersuasive. We further disagree with the State's argument that the merger doctrine is contra to clear legislative intent. The fact that this Court has recognized the merger doctrine for over one hundred years without legislative intervention lends credibility to the conclusion that this Court's application of the merger doctrine is not at odds with legislative intent.

Id., 2007 OK CR 22, ¶ 4, 163 P.3d at 589-90 (citing Tarter v. State, 1961 OK CR 18, 11 40-44, 359 P.2d 596, 602). Based on the facts, the Court found that the merger doe-trine required reversal of the murder convietion:

[TJhe felony charge upon which Appellant's Second Degree Felony Murder conviction is predicated, Child Neglect, was not separate from the act which caused the death. Therefore, we find that the underlying felony merged into the homicide and could not be used to sustain the Second Degree Felony Murder conviction.

Id., 2007 OK CR 22, T5, 163 P.3d at 590. The Court also held that the appropriate remedy was to modify appellant's conviction to the underlying felony of child neglect. In this regard, the Court reasoned:

In finding the Appellant guilty of Second Degree Felony Murder the jury necessarily found the evidence sufficient to prove the felony of Child Neglect beyond a reasonable doubt. Therefore, we modify Appellant's sentence to this lesser crime and modify the sentence to fifteen years imprisonment.

Id., 2007 OK CR 22, ¶ 5, 163 P.3d at 589-90.

115 Appellant argues persuasively that the predicate felony of using a vehicle to facilitate the intentional discharge of a firearm is not independent from the homicidal act of shooting Vernon Sutton, and that his conviction therefore violates the merger doctrine set forth in Quillen. This case sharply presents the question of whether the merger doctrine remains an appropriate limitation of the statutory definition of second degree felony murder. After careful consideration, the Court abandons this judicially created limitation on second degree felony murder and overrules Quillen.

16 Since our decision in Quillen, the Court has continued its deliberations about the nature and purpose of the merger doe-trine. Two judges dissented in Quillen. Judge Lumpkin's dissent questioned the need for the Court's modern application of the historic merger doctrine. He noted that at time of Jewell v. Territory in 1896, murder was not separated by degrees in the territorial statute, and felony murder-which carried a sentence of death or life imprisonment-included all felonies, as it had at common law.7 The merger doctrine as we know *965it today is found in the territorial supreme court's syllabus in Jewell, appended as a clause following a statement of the statutory felony murder rule:

Homicide is murder, under the third subdivision [of the murder statute], "when perpetrated without any design to effect death, by a person engaged in the commission of any felony"; and this means some felony as defined by statute other than that of the killing itself

Jewell, 4 Okla. 58, 483 P. 1075 (syllabus)(emphasis added). Judge Lumpkin observed in Quillen that the "source of the language added to the statutory felony murder provision, and the language relied upon by this Court for years, is not clearly discernable" from the Jewell opinion, and the additional clause "was nothing more than a judicial attempt to legislate an amendment to a statute passed by the Legislature." Quillen, 2007 OK CR 22, 163 P.3d at 591 (Lumpkin, P.J., concurring in part and dissenting in part). Moreover, though the territorial supreme court in Jewell certainly mentioned the merger doctrine, the facts of that case did not call for its application. Thus, the doctrine's inaugural appearance on our jurisprudential seene was in dicta. Id.

T17 Judge Lumpkin argued that the merger rule set out in Jewell and followed in later cases 8 originally developed in response to the draconian scope of the common law felony murder rule and similar statutes, like the territorial felony murder statute in Jewell. Those crimes were invariably capital, and without a merger doctrine, the commission of any felony that resulted in death, including cireumstances that might ordinarily be manslaughter, would be subsumed in the broad statutory definition of murder and carry a possible death sentence. The merger doctrine was a humane, judicially crafted policy designed "to limit the application of first-degree felony-murder when the Legislature had failed to do so." Quillen, 2007 OK CR 22, 115-6, 168 P3d at 591-92 (Lumpkin, P.J., concurring in part and dissenting in part).

{18 Evidence for this historical understanding of the merger doctrine abounds. In Tarter v. State, 1961 OK CR 18, ¶¶ 41-44, 359 P.2d 596, 601, the Court's discussion gave some background on the merger doctrine without directly applying it. The defendant in Tarter was convicted of murder. On appeal he argued the trial court should have instructed the jury on the lesser offense of manslaughter. Id., 1961 OK CR 18, ¶¶ 1, 29, 359 P.2d at 600. The State responded that because the defendant killed the victim in the commission of an assault with a deadly weapon, he was at least guilty of felony murder, and no manslaughter instruction was required. Id., 1961 OK CR 18, ¶ 40, 359 P.2d at 601. The Court rejected this suggestion out of hand, citing the syllabus from Jewell, and its statement that the defendant must commit "some felony as defined by statute other than that of the killing itself." Id., 1961 OK CR 18, ¶ 41, 359 P.2d at 601-02.

{19 The Court in Tarter also cited cases from Kansas and New York. In the New York case, People v. Wagner, 245 N.Y. 143, 156 N.E. 644 (1927), the defendant was convicted of felony murder based on the commission of a felonious assault on the victim that resulted in the death. The Court of Appeals of New York found this conviction was in error:

We think it self-evident that the trial judge committed error when he charged that the killing of Peter Basto may have been effected while the defendant was engaged in a felonious assault upon him, and, basing their conclusion thereupon, might determine that the defendant was guilty of mur*966der in the first degree. If this were not error, then every intentional killing, by means of a dangerous weapon, regardless of deliberation and premeditation, would constitute the crime of murder in the first degree, since every such killing must be preceded by the direction of such a weapon against the body of the person killed, which in itself would constitute a felonious assault. The law is clear, however, that the precedent felony must constitute an independent crime not included within the resulting homicide.9

Id. at 646 (citing People v. Huter, 184 N.Y. 237, 77 N.E. 6 (1906); People v. Spohr, 206 N.Y. 516, 100 N.E. 444 (1912) (emphasis added). The Kansas case, State v. Fisher, 120 Kan. 226, 243 P. 291 (1926), also shows how the merger doctrine narrowed the definitional seope of the common law felony murder rule and statutes that followed it:

It is the contention of the state that if murder is committed in the perpetration or the attempt to perpetrate any other felony it is murder in the first degree; hence, that if the boy, John Michael Foley, met his death at the hands of defendant while defendant was committing an assault with a deadly weapon, under such cireum-stances that it amounted to a felony under any statute pertaining thereto, the offense is murder in the first degree. This contention cannot be sustained. The effect of it would be to make any homicide, not exeusable or justified, which, by our statute, is defined to be manslaughter in any of the degrees or murder in the second degree, to constitute murder in the first degree. In other words, mere could, under this interpretation of the statute, be no such thing as any lower degree of homicide than murder in the first degree.

Id. at 298; see also, T. Corcoran, Felony Murder in New York, 6 Fordham L.Rev. 43, 48 (1937)(arguing that "[mJurder in the see-ond degree and some cases of manslaughter in the first and second degrees involve felonious assault on the person killed and yet if these assaults were not held to be merged in the homicide they would all be murder in the first degree," and noting that "[i]t is manifest that the doctrine of felony murder is in need of some reformation in New York").

20 Judge Lumpkin maintained in Quillen that the policy concerns justifying the merger doctrine in older cases like Wagner and Fisher-ie., that every felonious assault resulting in death could be punished as murder without the necessity of proving malice-are no longer present in Oklahoma law.

First-degree felony murder is now limited to a handful of enumerated felonies. Thus, the English common law policy decisions to escape the onerous penalties imposed on felony convictions are no longer viable. In addition, a plain reading and literal application of § 701.8(2) also will not subsume other forms of homicide. In addition to second-degree felony murder, a homicide is second-degree murder when committed by an act which is imminently dangerous to another person and evincing a depraved mind, but without any premeditated design to affect the death of any individual. Homicide is first-degree manslaughter when a killing is committed: 1) during the commission of a misdemeanor; 2) in the heat of passion; or 3) in an unnecessary attempt to prevent the person killed from committing a crime. Construing the see-ond-degree murder statute together with the first-degree manslaughter statute, it is clear the Legislature intended for any felony, as defined by statute, to serve as the basis for a second-degree felony murder conviction unless the defendant was acting while in the heat of passion or in an unnee-essary attempt to resist a crime. Further, second degree manslaughter is committed by a person who acts negligently, but does not commit a felony. Therefore, applying § 7018 to any felony, not listed in § 701.7(B), does not subsume second-degree manslaughter.

*967Quillen, 2007 OK CR 22, 19 n. 4, 163 P.3d at 593 n. 4 (Lumpkin, P.J., concurring in part and dissenting in part)(internal citations omitted).

121 Judge Lumpkin concluded that the merger doctrine is a legal remnant that now frustrates, rather than advances, the proper enforcement of the statutes on felony murder.

The Oklahoma Legislature has clearly enunciated its intent and set out the criteria for both first and second-degree felony murder ... Section 701.8(2) is recognition by the Legislature that a homicide can occur during the commission of felonies other. than those specifically enumerated under the first-degree felony murder statute and under cireumstances not warranting a first-degree murder charge Appellant's failure to seek medical attention for her son, which was inherently and potentially dangerous to her son's life in light of the facts and circumstances surrounding both the predicate felony and the homicide, brings this case within the historical definition of second degree felony murder [CJriminal liability for the baby's murder based upon Appellant's willful failure to seek medical attention (commission of the felony of child neglect) is an appropriate application of the second-degree felony murder statute.

Quillen, 2007 OK CR 22, ¶¶ 9-13, 163 P.3d at 593 (Lumpkin, P.J., concurring in part and dissenting in part)(emphasis added).

{22 In my Quillen dissent, I argued that the Legislature "clearly authorized a conviction for second-degree murder in a case like this, where a homicide is 'perpetrated by a person engaged in the commission of any felony'" not enumerated in the first degree felony murder statute. Id., 2007 OK CR 22, T3, 163 P.3d at 595 (Lewis, J., concurring in part and dissenting in part). In addition to the merger doctrine, the Court had already placed significant limitations on the plain language of the second degree felony murder statute, including the requirements of "a nexus between the underlying felony and the victim's death," and that the underlying felony "must be inherently or potentially dangerous to human life." Id. (quoting Malaske v. State, 2004 OK CR 18, ¶ 5, 89 P.3d 1116, 1118).

123 Given these limitations, I found the Court's application of the merger doctrine unnecessary, and the unusual remedy of modifying the murder conviction to the underlying felony inconsistent with the merger theory itself:

Despite the narrow purpose to which the merger rule is directed, the Court's decisions in this area now poise it to void a felony murder conviction whenever there is either too much criminal nexus or not enough: too little relationship between the felony and the killing and liability will not attach; too direct a relationship and the lesser and greater offenses "merge" to the same effect. To these judicial complications of a seemingly straightforward legislative policy, today's opinion adds a non-sequitur: the lesser predicate crime first merges with the more serious act of killing and then (astonishingly) re-emerges to serve as the offense of conviction. The criminal homicide into which this lesser crime merged is then set at naught; its prosecution is abated forever. Previous findings of a merger violation resulted in reversal and remand for a new trial on a proper homicide charge. The remedy imposed, here is unprecedented.

Quillen, 2007 OK CR 22, ¶ 4, 163 P.3d at 595 (Lewis, J., concurring in part and dissenting in part) (citing Massie, 1976 OK CR 174, 553 P.2d 186; Tucker, 1984 OK CR 36, 675 P.2d 459; and Sullinger, 1984 OK CR 44, 675 P.2d 472) (emphasis added).

T 24 Today the Court finds that what began as an early judicial limitation on the harshness of felony murder at common law could readily usurp the modern Legislature's constitutional authority to reasonably define the crime of felony murder.

The truth is that in this jurisdiction, no act is a crime unless made so by statute, and where the crime is defined by statute such definition must be relied on rather than the common law or some other definition of the act so classified as a crime.

Traxler v. State, 96 Okl.Cr. 281, 248, 251 P.2d 815, 829 (1953)(emphasis added). In inter-

*968preting and applying the eriminal statutes, our purpose is to ascertain the intent of the Legislature, State v. District Court of Oklahoma County, 2007 OK CR 3, ¶ 11, 154 P.3d 84, 86, as evidenced primarily "in the ordinary meaning of the words of the statute construed in view of the connection in which they are used, and of the evil to be remedied." Trazler, 96 Okl.Cr. at 244, 251 P.2d at 829.

125 The Legislature has defined second degree felony murder as the killing of a human being perpetrated by a person "engaged in the commission of any felony other than" the enumerated felonies in the first degree felony murder statute. 21 0.8.2001, § 701.8(2). The term "any" is defined by Webster's Third New International Dictionary 97(Unabridged ed., 1986) as:

1b: one, no matter what one: EVERY-used as a function word esp. in assertions or denials to indicate one that is selected without restriction or limitation of choice;

2b: ALL-used as a function word to indicate the maximum or whole of a number or quantity.

We therefore interpret the phrase "any felony" in section 7018(2) to mean every felony other than those enumerated in the first degree felony murder statute. See also, State v. Williams, 24 S.W.3d 101, 115 (Mo.App.2000)(construing legislature's use of the phrase "any felony" as "all-comprehensive" in a felony murder statute).

126 In State v. Harris, 69 Wash.2d 928, 421 P.2d 662 (1966)(en banc),10 the Supreme Court of Washington rejected the common law merger doctrine as a limitation on the statutory definition of second degree felony murder. In Harris, the defendant assaulted the victim, knocking her purse from her hand. When a .22 revolver tumbled from her purse, the defendant picked up the pistol and said, "I will kill all you sons of bitches." He then fired the pistol, fatally wounding the victim. In a non-jury trial, the court found no intent to kill the victim, but convicted the defendant of second degree felony murder, ruling that the defendant killed the victim in the commission of assault with a dangerous weapon. Id. at 663.

127 The defendant challenged the convietion on appeal, urging the supreme court to "adopt the New York 'merger rule, which is that the precedent felony in a felony murder must constitute a crime not included in and independent of the homicide." Id.; see also Wagner, 156 N.E. at 646 (N.Y.1927), supra. Washington's felony murder statute, like Oklahoma's, distinguished between the crimes of first and second degree felony murder. The statute then in effect provided that the killing of a human being is murder in the second degree when "perpetrated by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a felony other than those enumerated" in the first degree felony murder statute. Id. (quoting Wash. Rev.Code § 9.48.040(2)).

1 28 The supreme court in Harris acknowledged that the harshness of New York's felony murder rule might justify the application of a merger doctrine, but declined to impose the merger limitation on Washington's murder statute. The Court reasoned that the legislative classification of felony murder and other criminal homicides by degrees with distinct factual elements rendered a merger doctrine unnecessary:

Our legislature ... has made its own distinction in the matter of homicides occurring while committing, attempting to commit, or in withdrawing from the scene of certain felonies. If the felony be robbery, rape, burglary, larceny or arson in the first degree, the killing, though without design to effect death, is murder in the first degree. If the felony be other than the ones just named, the killing is murder in the second degree. A homicide not coming within the first and second-degree murder statutes, and being neither excusable nor justifiable, is manslaughter.11

*969The legislature has also specifically designated certain killings as manslaughter, i.e., killing unborn quick child;12 killing by a vicious animal;13 killing by overloading passenger vessel; killing by reckless operation of steamboat or engine; killing by intoxicated physician while treating a patient; 14 killing as result of unlawful keeping of explosives.15 It has also added to our lexicon the crime of negligent homicide by means of a motor vehicle.16

In light of the distinctions made in our own statutes, we see no reason why we should adopt the New York 'merger rule, i.e., that the precedent felony, if an assault on the person killed, is merged in the resulting homicide....

In Washington, the felony murder must occur in the commission of, an attempt to commit, or in withdrawing from the scene of a felony, and must not be separate, distinct, and independent from it. Our legislature further avoided the merger problem by specifically designating the felonies which result in a first or second-degree felony murder charge. Since am assault felony comes within the ambit of second-degree murder, the state must prove intent and premeditation in order to secure a first-degree murder conviction. Thus the rationale behind the New York merger rule is not applicable in Washington.

Id. at 664-65 (internal citations omitted). We find the reasoning of Harris reflective of the situation in Oklahoma, and conclude that the current legislative classification of criminal homicides by their respective degrees, defined by distinct factual elements, obviates the need for the merger doctrine.

129 The case before us today well illustrates the objectionable effects of the merger doctrine when applied to the facts. Riding from a protected position in a passing vehicle, Appellant repeatedly fired on an unsuspecting group of people standing near the street and killed a man. This fatal attack was neither excusable nor justifiable, and therefore it was a criminal homicide, either murder or manslaughter, under Oklahoma law. 21 0.8.2001, § 692 (homicide is either murder; manslaughter; excusable homicide, or justifiable homicide). The jury at trial clearly rejected the charge of malice aforethought murder. However, when the jury found Appellant guilty of second degree felony murder, it necessarily concluded, beyond a reasonable doubt, that Appellant felo-niously used a vehicle to facilitate the intentional discharge of a firearm; that he did so "in conscious disregard for the safety of any other person or persons"; and that he caused the death of a human being as a result.

30 Application of the merger doctrine in this case, by reversing Appellant's second degree murder conviction and modifying his conviction to the underlying felony, would be a miscarriage of justice. The mens rea associated with this type of drive-by shooting is either the malice aforethought of first degree murder, ie., "that deliberate intention unlawfully to take away the life of a human being," 21 0.S.8upp.2006, § 701.7(A), which can be "inferred from the fact of killing," and "may be formed instantly" before the fatal act, 21 ©.S$.2001, §§ 702, 708; or the "depraved mind" emblematic of second degree murder, ie., perpetrating an imminently dangerous act, "regardless of human life, although without any premeditated design to effect the death of any particular individual." 21 O.S. 2001, § 701.8(1). As a matter of history and policy, it is entirely reasonable for the Legislature to punish the killing of a person during the commission of this type of dangerous *970felony as murder in the first or second degree.

31 The felony erimes of assault and battery, child neglect, caretaker abuse and neglect, operation of a motor vehicle while intoxicated, unlawful possession and use of firearms and explosives, using a vehicle to facilitate intentional discharge of a firearm, and a host of other felonies, can have deadly consequences. The Legislature is well within reason to define killings during the commission of these dangerous felonies as murder, even when the felony is not "independent" of the act or acts resulting in death. Indeed, it is when such felonies destroy life that they are most deserving of the infamy and punishment of murder. Continued adherence to the merger doe trine, and the remedy as established in Quillen, would, in many instances, nullify the proper exercise of the Legislature's power to define and punish murder. We will not follow that course.

132 Appellant killed a human being in the commission of using a vehicle to facilitate intentional discharge of a firearm. He is, at the very least, guilty of second degree murder under the plain language of section 701.82) of Title 21. His conviction for that offense is authorized by statute, and no plain error occurred. To the extent that Quillen, and earlier cases recognizing the merger doctrine as a limitation on the statutory definition of second degree felony murder, including Massie, 1976 OK CR 174, ¶ 16, 553 P.2d 186, 191, Tucker, 1984 OK CR 36, ¶ 3, 675 P.2d 459, 461, Sullinger, 1984 OK CR 44, 13, 675 P.2d 472, 473, and State v. McCann, 1995 OK CR 70, 18, 907 P.2d 239, 240, are inconsistent with our ruling today, those cases are overruled. Proposition Five is denied.

$83 In Proposition Six, Appellant argues that his sentence is excessive. We find that the sentence of twenty-three (28) years imprisonment does not shock the conscience of the Court and requires no relief. Rea v. State, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149.

1 34 Appellant in Proposition Seven argues that reversal or modification is required due to cumulative error. As we find no error, there is no accumulation of error. Proposition Seven is denied. Smith v. State, 2007 OK CR 16, 1 81, 157 P.3d 1155, 1179.

DECISION

The Judgment and Sentence of the District Court of Okmulgee County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

A. JOHNSON, P.J. and C. JOHNSON, J. specially concur.

LUMPKIN, J. and SMITH, J. concur.

A. JOHNSON, Presiding Judge,

SPECIALLY CONCURRING.

T1 I agree with the decision to abandon the merger doctrine as a limitation to second degree felony murder. The purpose of the merger limitation-to bring fairness to the potential harshness of the felony murder rule-is a sound one. A fair and consistent application of this particular limitation, however, is difficult, In Quillen v. State, 2007 OK CR 22, 163 P.3d 587, this Court extended the application of the merger doctrine to the non-assaultive crime of felony child neglect in an apparent attempt to achieve a fair and appropriate balance between moral eulpability and criminal liability in that case. This broad application of the merger limitation and the difficulty of its application in Quillen lead me to reexamine the continued validity of the merger limitation in this case. There may be future cases that test the wisdom of this decision. Nevertheless, I am confident that this Court's expressed commitment to maintaining the distinction between the different degrees and forms of murder, manslaughter and other homicide crimes will resolve any issues of unfair over-charging and undeserved convictions and sentences.

C. JOHNSON, Judge,

SPECIALLY CONCURRING.

1 1 It is with some hesitation that I concur in the Court's decision in this case to abandon the merger doctrine. The merger doe-trine operates to preserve the different degrees of homicide crimes. I understand the *971position of the majority regarding the historical context in which the merger doctrine developed, but I do not agree that the problem the merger doctrine seeks to remedy has been eliminated by the legislative classification of differing degrees of homicide. Second Degree Felony Murder allows a person who commits any felony other than one enumerated for First Degree Felony Murder, from which a death results that is not excusable or justified, to be prosecuted for Second Degree Felony Murder. The prosecutors make the determination of which erime to charge and the abandonment of the merger doctrine allows them, under these cireum-stances, unrestrained discretion to charge the greater offense of Second Degree Felony Murder to the exclusion of lesser degrees of homicide. Thus, in the absence of the merger doctrine, it will be even more important that district courts give instructions on lesser forms of homicide where such instructions are supported by the evidence as is required by Shrum v. State, 1999 OK CR 41, 991 P.2d 1032.

TRAYNOR, C. J.

Defendant appeals from a judgment of conviction entered upon jury verdicts finding him guilty of first degree robbery (Pen. Code, §§ 211, 211a) and first degree murder and fixing the murder penalty at life imprisonment. (Pen. Code, §§ 187, 189, 190, 190.1.)1 He was convicted of murder for participating in a robbery in which his accomplice was killed by the victim of the robbery.

Shortly before 10 p.m., October 2, 1962, Johnnie Carpenter prepared to close his gasoline station. He was in his office computing the receipts and disbursements of the day while an attendant in an adjacent storage room deposited money in a vault. Upon hearing someone yell “robbery,” Carpenter opened his desk and took out a revolver. A few moments later, James Ball entered the office and pointed a revolver directly at Carpenter, who fired immediately, mortally wounding Ball. Carpenter then hurried to the door and saw an unarmed man he later identified as defendant running from the vault with a moneybag in his right hand. He shouted “Stop.” When his warning was not heeded, he fired and hit defendant who fell wounded in front of the station.

The Attorney General, relying on People v. Harrison, 176 *780Cal.App.2d 330 [1 Cal.Rptr. 414], contends that defendant was properly convicted of first degree murder. In that case defendants initiated a gun battle with an employee in an attempt to rob a cleaning business. In the crossfire, the employee accidentally killed the owner of the business. The court affirmed the judgment convicting defendants of first degree murder, invoking Commonwealth v. Almeida, 362 Pa. 596 [68 A.2d 595, 12 A.L.R.2d 183], and People v. Podolski, 332 Mich. 508 [52 N.W.2d 201], which held that robbers who provoked gunfire were guilty of first degree murder even though the lethal bullet was fired by a policeman.

Defendant would distinguish the Harrison, Almeida, and Podolshi eases on the ground that in each instance the person killed was an innocent victim, not one of the felons. He suggests that we limit the rule of the Harrison case just as the Supreme Courts of Pennsylvania and Michigan have lim,-ited the Almeida and Podolshi cases by holding that surviving felons are not guilty of murder when their accomplices are killed by persons resisting the felony. (Commonwealth v. Redline, 391 Pa. 486 [137 A.2d 472]; People v. Austin, 370 Mich. 12 [120 N.W.2d 766]; see also People v. Wood, 8 N.Y.2d 48 [201 N.Y.S.2d 328, 167 N.E.2d 736].) A distinction based on the person killed, however, would make the defendant’s criminal liability turn upon the marksmanship of victims and policemen. A rule of law cannot reason.ably be based on such a fortuitous circumstance. The basic | issue therefore is whether a robber can be convicted of murder ifm. fhA killing of any person by another who is resisting the

“Murder is the unlawful killing of a human being, with malice aforethought.” (Pen. Code, § 187.) Except when the common-law-felony-murder doctrine is applicable, an essential element of murder is an intent to kill or ah' intent with conscious disregard for life to commit acts likely to kill. (See People v. Thomas, 41 Cal.2d 470, 475 [261 P.2d 1] [concurring opinion].) The felony-murder doctrine ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony. (People v. Ford, 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892]; People v. Coefield, 37 Cal.2d 865, 868 [236 P.2d 570].) That doctrine is incorporated in section 189 of the Penal Code, which provides in part: “All murder... committed in the perpetration or attempt to perpetrate... robbery... is murder of the first degree.” Thus, even though section 189 *781speaks only of degrees of “murder,” inadvertent or accidental killings are first degree murders when committed by felons in the perpetration of robbery. (People v. Coefield, supra, 37 Cal.2d 865, 868; People v. Boss, 210 Cal. 245, 249 [290 P. 881].)

When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen and that the robbery might therefore be regarded as a proximate cause of the killing. Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony. To include such killings within section 189 would expand the meaning of the words “murder . .. which is committed in the perpetration... [of] robbery ...” beyond common understanding.

The purpose of x the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. (See Holmes, The Common Law, pp. 58-59; Model Penal Code (Tent. Draft No. 9, May 8, 1959) § 201.2, comment 4 at pp. 37-38; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 35-36 (1949-1953).) This purpose is npt served by punishing them for killings committed by their victims.

It is contended, however, that another purpose of the felony-murder rule is to prevent the commission of robberies. Neither the common-law rationale of the rule nor the Penal Code supports this contention. In every robbery there is a possibility that the victim will resist and kill. The robber has little control over such a killing once the robbery is undertaken as this case demonstrates. To impose an additional penalty for the killing would discriminate between robbers,^not on the basis of any difference in their own eonduetj but solely on the basis of the response by others that the robber’s conduct happened to induce. An additional penalty for a homicide committed by the victim would deter robbery haphazardly at best. To “prevent stealing, [the law] would do better to hang one thief in every thousand by lot.” (Holmes, The Common Law, p. 58.)

A defendant need not do the killing himself, however, *782to be guilty of murder. He may be vicariously responsible under the rules defining principals and criminal conspiracies. All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them Mils wMle acting in furtherance of the common design. (People v. Boss, 210 Cal. 245, 249 [290 P. 881]; People v. Kauffman, 152 Cal. 331, 334 [92 P. 861].) Moreover, when the defendant intends to kill or intentionally commits acts that are likely to kill with a conscious disregard for life, he is guilty of murder even though he uses another person to accomplish his objective. (Johnson v. State, 142 Ala. 70 [38 So. 182, 2 L.R.A. N.S. 897]; see also Wilson v. State, 188 Ark. 846 [68 S.W.2d 100]; Taylor v. State, 41 Tex. Crim. Rep. 564 [55 S.W. 961].)

Defendants who initiate gun battles may also be /found guilty of murder if their victims resist and kill. Under ''such circumstances, “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death” (People v. Thomas, 41 Cal.2d 470, 480 [261 P.2d 1] [concurring opinion]), and it is unnecessary to imply malice by invoMng the felony-murder doctrine.2 To invoke the felony-murder doctrine to imply malice in such a case is unnecessary and overlooks the principles of criminal liability that should govern the responsibility of one person for a killing committed by another. (See Hart and Honoré, Causation in the Law, pp. 296-299; Hall, Criminal Law, 2d ed., pp. 270-281; Morris, The Felon’s Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; Brett, An Inquiry Into Criminal Guilt, pp. 123-124.)

To invoke the felony-murder doctrine when the Mlling is not committed by the defendant or by his accomplice could lead to absurd results. Thus, two men rob a grocery store and flee in opposite directions. The owner of the store follows one of the robbers and Mils him. Neither robber may have fired a shot. Neither robber may have been armed with a deadly weapon. If the felony-murder doctrine applied, how*783ever, the surviving robber could be convicted of first degree murder (see Commonwealth v. Thomas, 382 Pa. 639 [117 A.2d 204], overruled by Commonwealth v. Redline, 391 Pa. 486 [137 A.2d 472]), even though he was captured by a policeman and placed under arrest at the time his accomplice was killed. (Commonwealth v. Doris, 287 Pa. 547 [135 A. 313]; see People v. Corkery, 134 Cal.App. 294 [25 P.2d 257].)

The felony-murder rule has been criticized on the grounds that in almost all eases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. (See e.g., Model Penal Code (Tent. Draft No. 9, May 8, 1959) § 201.2, comment 4 at pp. 37-39; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 34-43, 45 (1949-1953); 3 Stephen, History of the Criminal Law of England 57-58, 74-75 (1883); Packer, The Case for Revision of the Penal Code, 13 Stan.L.Rev. 252, 259; Morris, The Felon’s Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; 66 Yale L.J. 427.)3 Although it is the law in this state (Pen. Code, § 189), it should not be extended .-beyond any rational function that it is designed to serve. '-Accordingly, for a defendant to be guilty of murder under the felony-murder rule the act of killing must be committed by the defendant or by his accomplice acting in furtherance of their common design^] (Commonwealth v. Campbell, 89 Mass. 541 [83 Am. Dec. 705] ; Butler v. People, 125 Ill. 641 [18 N.E. 338, 8 Am.St.Rep. 423]; Commonwealth v. Moore, 121 Ky. 97 [88 S.W. 1085, 2 L.R.A. N.S. 719, 123 Am. St. Rep. 189, 11 Ann. Cas. 1024]; State v. Oxendine, 187 N.C. 658 [122 S.E. 568]; see also People v. Ferlin, 203 Cal. 587, 597 [265 P. 230].) Language in People v. Harrison, 176 Cal.App.2d 330 [1 Cal.Rptr. 414], inconsistent with this holding, is disapproved.

On his appeal from the robbery conviction, defendant contends that he did not participate in the robbery. He testified that on the evening of the robbery he was with Ball and a man named Johnson. He did not know that they intended to commit robbery. He was “pretty drunk” at the time and fell asleep in the automobile. When he awoke the automobile was parked near Carpenter’s gasoline station, *784and Ball and Johnson were absent. He left the automobile to look for them. As he approached the station, Johnson ran from the vault. Carpenter shot just as Johnson ducked around a corner and dropped the moneybag. Carpenter’s bullet hit defendant who fell wounded near the bag that Johnson had dropped.

Defendant’s testimony was corroborated by the testimonjr of James Johnson, an inmate of the state prison for an unrelated crime at the time of defendant’s trial. Johnson testified that he was the man who ran from the vault with the moneybag. Carpenter controverted their testimony, however, by identifying defendant as the man who ran from the vault. The evidence is therefore sufficient to support defendant’s conviction of robbery.

Defendant contends, however, that the trial court on its own motion should have instructed the jury to view Carpenter’s testimony with caution on the ground that it tended to be self-serving because Carpenter “was relieved of any criminal or civil responsibility for the shootings by implicating [defendant] and the deceased in an attempted robbery.” All testimony that favors a witness’ real or imagined self-interest, however, does not require a cautionary instruction. The testimony of a robbery victim does not come from a “tainted source” as does the testimony of an accomplice (People v. Robinson, 43 Cal.2d 132, 141 [271 P.2d 865] ; People v. Wallin, 32 Cal.2d 803, 808 [197 P.2d 734]; Code Civ. Proc., § 2061, subd. 4), nor is his testimony like that of a complaining witness in a sex offense, which may be motivated by malice and beyond effective contradiction because it relates to matters that ordinarily take place in secrecy. (People v. Putnam, 20 Cal.2d 885, 891-892 [129 P.2d 367].) In the present case, there was no such danger of perjury, and defendant had a fair opportunity to controvert the witness’ testimony. The court properly instructed the jury that they were the exclusive judges of the credibility of the witnesses and informed them that they might consider such matters as the relation of the witnesses to the case and their interest therein. Although the court could have, made “such comment on the evidence and the testimony and credibility of any witness as in its opinion [was] necessary for the proper determination of the case ...” (Pen. Code, § 1127), it was not required to give a cautionary instruction.

The judgment is affirmed as to defendant’s conviction of *785first degree robbery and reversed as to Ms conviction of first degree murder.

Peters, J., Tobriner, J., Peek, J., and White, J.,* concurred.

BURKE, J.

I dissent. The unfortunate effect of the decision of the majority in this case is to advise felons:

“Henceforth in committing certain crimes, including robbery, rape and burglary, you are free to arm yourselves with a gun and brandish it in the faces of your victims without fear of a murder conviction unless you or your accomplice pulls the trigger. If the menacing effect of your gun causes a victim or policeman to fire and kill an innocent person or a cofelon, you are absolved of responsibility for such killing unless you shoot first.”

Obviously this advance judicial absolution removes one the most meaningful deterrents to the commission of armed felonies.

In the present ease defendant’s accomplice was killed when the robbery victim fired after the accomplice had pointed a revolver at him. In People v. Harrison (1959) 176 Cal.App. 2d 330 [1 Cal.Rptr. 414] (hearing in Supreme Court denied without a dissenting vote), the rationale of which the majority now disapprove, the robbery victim was himself accidentally killed by a shot fired by his employee after defendant robbers had opened fire, and the robbers were held guilty of murder for the killing. The majority now attempt to distinguish Harrison on the ground that there the robbers “initiated” the gun battle; in the present case the victim fired the first shot. As will appear, any such purported distinction is an invitation to further armed crimes of violence. There is no room in the law for sporting considerations and distinctions as to who fired first when dealing with killings which are caused by the actions of felons in deliberately arming themselves to commit any of the heinous crimes listed in Penal Code section 189. If a victim—or someone defending the victim—seizes an opportunity to shoot first when confronted by robbers with a deadly, weapon (real or simulated), any “gun battle” is initiated by the armed robbers. In such a situation application of the felony-murder rule of section 189 of the Penal Code supports, if not compels, the conclusion that the surviving robbers committed murder even if the lethal bullet did not come from one of their guns, *786and whether it is an innocent person or an accomplice who dies.

Section 187 of the Penal Code declares that “Murder is the unlawful[1] killing of a human being, with malice aforethought.” Section 188 states that “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away ... life.... It is implied... when the circumstances attending the killing show an abandoned and malignant heart.”

Section 189 specifies that “All murder which is perpetrated by . .. any . .. kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate... robbery [or five other named felonies1 2], is murder of the first degree....”

So heinous has the Legislature considered murders in the perpetration of these offenses that it grouped them with murder by means of poison, lying in wait or by torture, and, fundamentally, the law in this respect has remained unchanged for more than one hundred years. (Stats. 1850, p. 231; Stats. 1856, p. 219; now Pen. Code, § 189.)

In People v. Milton (1904) 145 Cal. 169,171-172 [78 P. 549], the court pointed out that a killing is unlawful which is “perpetrated in the performance or attempt to perform one of these felonies, and the malice of the abandoned and malignant heart is shown from the very nature of the crime” the defendant is attempting to commit. Thus the killing is established as murder under section 187, in the light of the definition of malice found in section 188, and section 189 makes it first degree murder. Therefore, held the court, even if the killing be accidental or unintentional, if committed in the attempt to perpetrate one of the felonies named in section 189 it is first degree murder.

This principle has been repeatedly upheld by this court (see People v. Raber (1914) 168 Cal. 316, 318 [143 P. 317] ; People v. Witt (1915) 170 Cal. 104, 107-108 [148 P. 928]; People v. Denman (1918) 179 Cal. 497, 498-499 [177 P. 461]; People v. Boss (1930) 210 Cal. 245, 249 [290 P. 881]; People v. Valentine (1946) 28 Cal.2d 121, 135 [169 P.2d 1] ; People v. Coefield (1951) 37 Cal.2d 865, 868 [236 P.2d 570]), and is expressly recognized by the majority in the instant case with the declaration (ante, p. 781) that “inadvertent or acci*787dental killings are first degree murders when committed by felons in the perpetration of robbery.” (Italics added.) The majority further expressly recognize the rule (ante, pp. 781-782) that “A defendant need not do the killing himself . . . to he guilty of murder. . . . All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills” in the perpetration of the robbery. (See People v. Boss, supra.)

Despite these declared principles—long established and effective in their deterrence of crimes of violence—the majority now announce (ante, p. 781) that “When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him, in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen.... Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony.... To include such killings within section 189 would expand the meaning of the words‘murder . . . which is committed in the perpetration... [of] robbery... ’ beyond common understanding.” (Italics added.)

But section 189 carries not the least suggestion of a requirement that the killing must take place 'to perpetrate the felony. If that requirement now be read into the section by the majority, then what becomes of the rule—which they purport to recognize—that an accidental and unintentional killing falls within the section ? How can it be said that such a v killing takes place to perpetrate a robbery 1

Moreover, as already noted, the malice aforethought of the abandoned and malignant heart is shown from the very nature of the crime, here armed robbery, the defendant is attempting to commit. (People v. Milton (1904) supra, 145 Cal. 169, 171-172.) This truism was confirmed in People v. Bostic (1914) 167 Cal. 754, 761 [14 P. 380], wherein the court pointed out that the argument that to be first degree murder a killing during robbery must be planned as a part of the scheme, carries its own refutation, “for it must be apparent that without reference to the robbery such a murder would be a ‘wilful, deliberate and premeditated killing,’ ” and hence, first degree murder; further, said-the court, “The moment [defendant] entered that [train] car with a deadly weapon in his hand, with the purpose of committing robbery, the law fixed upon him the intent which would make any *788killing in the perpetration of the robbery or in the attempt.. . a murder of the first degree. In such cases the law does not measure the delicate scruples of the robber with reference to shooting his victim. ’ ’ Again in People v. Coefield, supra (1951) 37 Cal.2d 865, 868 [2] the court took note of the rule “that when one enters a place with a deadly weapon for the purpose of committing robbery, malice is shown by the nature of the attempted crime. ’ ’ This is also the approach of the general felony-murder doctrine, a doctrine which (the majority confirm) ascribes malice aforethought where the killing is in the perpetration of an inherently dangerous felony. As expressed in People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892], cited by the majority, “A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, sec. 189) constitutes at least second degree murder. [Citations.] ” (Italics added.)

A homicide which arises out of an attempt at armed robbery is a direct causal result of the chain of events set in motion by the robbers when they undertook their felony. When a victim fires the lethal bullet, whether or not he fires first, the killing is caused by the act of the felon and the felon is as responsible therefor as when the firing is by his accomplice or when it is accidental or unintentional.3 The majority suggest (ante, p. 782), “it is unnecessary to imply malice by invoking the felony-murder doctrine” where the robber “initiates” a gun battle by shooting first. This suggestion by the majority, I respectfully submit, emphasizes the inconsistency of their opinion. First they declare (ante, p. 781) that “When a killing is not committed by a robber... but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in ... robbery.” (Italics added.) Later they state (ante, p. 782) that “Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill . . . and it is unnecessary to imply malice by invoking the felony-murder doctrine.” (Italics added.)

*789But malice aforethought is an essential element of murder. (Pen. Code, § 187.) If it is not attributable to the robber when a killing is “committed by” his victim rather than by himself in a gun battle initiated by the robber, is the essential malice express—or is it to be implied under some doctrine other than the felony-murder rule? Do the majority imply the malice of the abandoned and malignant heart (Pen. Code, § 188) only if the robber shoots first, but not if he merely creates the foreseeable risk that 11 the victim will resist and kill”? And this despite the fact that, as the majority further affirm {ante, p. 781), “the robbery might therefore be regarded as a proximate cause of the killing”?

Even if, as the majority suggest (ante, p. 782), it is unnecessary to imply malice by invoking the felony-murder doctrine where the robber shoots first, that doctrine can and should be invoked in a ease in which, as here, a robber with a gun in his hand confronts a victim who can and does resist by firing the first shot. In such a case, the robber “initiated” the criminal plan, he “initiated” it by wilfully, maliciously and wantonly putting the victim in fear of his life, and he “initiated” any resultant shooting, whether by his gun or that of the victim. Where the victim is in a position to shoot first and his bullet kills, the killing should be viewed in law and in fact as having been “committed” by the robber (as it was in People v. Harrison, supra, 176 Cal.App.2d 330), and application of the felony-murder rule to such circumstances is, in my view, exactly the sort of “rational function that it is designed to serve”—in the phrasing of the majority (ante, p. 783).

Extreme examples may he imagined in which the application of a rule of criminal liability would appear manifestly unjust. However, when this court and others have been faced with such an example exceptions have been made to avoid an unconscionable result. To reject invocation of the felony-murder rule here, as do the majority {ante, pp. 782-783), because of possible harshness in its application in other circumstances, for example, to fleeing robbers who are not armed, dilutes the enforcement of criminal responsibility. The case anticipated and the injustice sought to be protected against by the majority are not before us, and can best be dealt with when and if encountered. It may be observed, however, that robbers are not compelled to flee and thus to be shot at endangering themselves and others. They need only surrender, as many have done, to avoid death, to themselves or others, *790and the awesome penalties which attach under the felony-murder law.

I agree with the majority (ante, p. 781) that one purpose of the felony-murder rule is to deter felons from killing negligently or accidentally. However, another equally cogent purpose is to deter them from undertaking inherently dangerous felonies in which, as the majority state (ante, p. 781), a “killing was a risk reasonably to be foreseen. ... In every robbery there is a possibility that the victim will resist and MIL” As declared in People v. Chavez (1951) 37 Cal.2d 656, 669 [234 P.2d 632], “The statute [Pen. Code, § 189] was adopted for the protection of the community and its residents, not for the benefit of the lawbreaker.” Why a felon who has undertaken an armed robbery, which this court now expressly notifies him carries a “risk” and “a possibility that the victim will resist and kill,” and which “might therefore be regarded as a proximate cause of the killing” should nevertheless be absolved because, fortuitously, the victim can and does shoot first and the lethal bullet comes from the victim’s gun rather than from his own, will be beyond the comprehension of the average law-abiding citizen, to say nothing of that of victims of armed robbery. Nor is such a view compatible with the felony-murder doctrine.

But, say the majority, “The robber has little control over such a killing once the robbery is undertaken,” and “To impose an additional penalty for the Mlling would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the basis of the response by others that the robber’s conduct happened to induce.” (Ante, p. 781). A robber has no control over a bullet sent on its way after he pulls the trigger. Certainly his inability to recall it before it Mils does not cloak him with innocence of the homicide. The truth is, of course, that the robber may exercise various “controls over” a possible Mlling from his victim’s bullet “once the robbery is undertaken.” The robber can drop his own weapon, he can refrain from using it, he can surrender. Other conduct can be suggested wMeh would tend to reassure the victim and dissuade him from firing his own gun. Moreover, the response by one victim will lead to capture of the robbers, wMle that of another victim will permit their escape. Is the captured felon to be excused from responsibility for his crime, in order not to “discriminate between robbers... solely on the basis of the response by others that the robber’s conduct happened to induce”?

*791The robber’s conduct which forms the basis of his criminal responsibility is the undertaking of the armed felony, in which a “killing was a risk reasonably to be foreseen” including the “possibility that the victim will resist and kill.” If that risk becomes reality and a killing occurs, the guilt for it is that of the felon. And when done, it is murder in the first degree—calling for death or life imprisonment. And to say that the knowledge that this awesome, sobering, terrifying responsibility of one contemplating the use of a deadly weapon in the perpetration of one of the listed offenses is not the strongest possible deterrent to the commission of such offenses belies what is being demonstrated day after day in the criminal departments of our trial courts.

I would hold, in accord with the rationale of People v. Harrison, supra (1959) 176 Cal.App.2d 330, that the killing is that of the felon whether or not the lethal bullet comes from his gun or that of his accomplice and whether or not one of them shoots first, and would affirm the judgment of conviction of murder in the instant case.

McComb, J., concurred.

Respondent’s petition for a rehearing was denied June 23, 1965. Mosk, J., did not participate therein. McComb J., and Burke, J., were of the opinion that the petition should be granted.