232 Cal. App. 3d 1375; 284 Cal.Rptr. 117

THE PEOPLE, Plaintiff and Respondent,

v.

VINCENT WILLIAM ACOSTA, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Three.

No.G008518.

July 31, 1991.

NOTICE: NOT CITABLE - ORDERED NOT

PUBLISHED

SUBSEQUENT HISTORY: As Modified August 2, 14, and 28, 1991. Review Denied October 31, 1991.

PRIOR-HISTORY: Superior Court of Orange County, No. C-67678, Robert R. Fitzgerald, Judge.

COUNSEL: Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant.

John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Harley D. Mayfield, Assistant Attorney General, Janelle B. Davis and John T. Swan, Deputy Attorneys General, for Plaintiff and Respondent.

JUDGES: Moore, Acting P.J., concurring in part and dissenting. Crosby, J., concurring and dissenting.

OPINION BY: WALLIN

OPINION

WALLIN, J.

Vincent William Acosta appeals his conviction on three counts of second degree murder (Pen. Code, § 187) and one count of unlawfully driving another's vehicle without consent (Veh. Code, § 10851), contending: (1) there was insufficient evidence his conduct was the proximate cause of the deaths; (2) there was insufficient evidence of malice; (3) the jury was erroneously instructed on implied malice; (4) the trial court erred in admitting his postarrest statements; and (5) his sentence constituted cruel and unusual punishment. In the published portion of the opinion, I agree with his second contention and reverse the murder convictions. I discuss his fourth contention in the unpublished portion and conclude his fifth contention is moot.

At 10 p. m. on March 10, 1987, Officers Salceda and Francis of the Santa Ana Police Department's automobile theft detail saw Acosta in Elvira Salazar's stolen Nissan Pulsar parked on the street. The officers approached Acosta and identified themselves. Acosta inched the Pulsar forward, then accelerated rapidly. He lead Salceda, Francis and officers from other agencies on a 48-mile chase along numerous surface streets and freeways throughout Orange County. The chase ended near Acosta's residence in Anaheim.

During the chase, Acosta engaged in some of the most egregious driving tactics imaginable. He ran stop signs and red lights, and drove on the wrong side of streets, causing oncoming traffic to scatter or swerve to avoid colliding with him. Once, when all traffic lanes were blocked by vehicles stopped for a red light, he used a dirt shoulder to circumvent stationary vehicles and pass through the intersection. When leaving the freeway in Anaheim, he drove over a cement shoulder.

Throughout the pursuit, Acosta weaved in and out of traffic, cutting in front of other cars and causing them to brake suddenly. At one point on the freeway, he crossed three lanes of traffic, struck another car, jumped the divider between the freeway and a transition lane, and passed a tanker truck, forcing it to swerve suddenly to avoid a collision.

Acosta generally drove at speeds between 60 and 90 miles per hour, slowing only when necessary. During several turns, his wheels lost traction. When an officer was able to drive parallel to the Pulsar for a short distance, Acosta looked in his direction and smiled. Near the end of the chase, one of the Pulsar's front tires blew out, but Acosta continued to drive at 55 to 60 miles per hour, crossing freeway traffic lanes.

Police helicopters from Anaheim, Costa Mesa, Huntington Beach, and Newport Beach assisted in the chase by tracking Acosta. During the early part of the pursuit, the Costa Mesa and Newport Beach craft were used, pinpointing Acosta's location with their high beam spotlights. The Costa Mesa helicopter was leading the pursuit, in front of and below the Newport Beach helicopter. As they flew into Newport Beach, the pilots agreed the Newport Beach craft should take the lead. The normal procedure for such a maneuver is for the lead helicopter to move to the right and swing around clockwise behind the other craft while climbing to an altitude of 1,000 feet. At the same time, the trailing helicopter descends to 500 feet while maintaining a straight course.

At the direction of the Costa Mesa pilot, the Newport Beach helicopter moved forward and descended while the Costa Mesa helicopter banked to the right. Shortly after commencing this procedure, the Costa Mesa helicopter, having terminated radio communication, came up under the Newport Beach helicopter from the right rear and collided with it. Both helicopters fell to the ground. Three occupants in the Costa Mesa helicopter died as a result of the crash.

Menzies Turner, a retired Federal Aviation Administration (FAA) investigator, testified as an expert and concluded the accident occurred because the Costa Mesa helicopter, the faster of the two aircraft, made a 360-degree turn and closed too rapidly on the Newport Beach helicopter. He opined the Costa Mesa helicopter's pilot violated an FAA regulation prohibiting careless and reckless operation of an aircraft by failing to properly clear the area, not maintaining communication with the Newport Beach helicopter, failing to keep the other aircraft in view at all times, and not changing his altitude. He also testified the Costa Mesa pilot violated another FAA regulation prohibiting operation of one aircraft so close to another as to create a collision hazard.^[2]

Turner could not think of any reason for the Costa Mesa helicopter's erratic movement. The maneuver was not a difficult one, and was not affected by the ground activity at the time. He had never heard of a midair collision between two police helicopters involved in tracking a ground pursuit, and had never investigated a midair collision involving helicopters.^[3]

After his arrest Acosta told the police he knew the Pulsar was stolen and he fled the police to avoid arrest. He also saw two helicopters with spotlights, and turned off the Pulsar's lights to evade them. Acosta knew that his flight was dangerous "to the bone," but he tried to warn other cars by flashing the car lights and by otherwise being "as safe as possible."

I

Acosta claims there was insufficient evidence of two elements necessary to support the convictions for second degree murder: that he proximately caused the deaths of the victims, and that his state of mind constituted implied malice. (People v. Scola (1976) 56 Cal.App.3d 723, 726 [128 Cal.Rptr. 477] [proximate cause]; People v. Spring (1984) 153 Cal.App.3d 1199, 1204 [200 Cal.Rptr. 849] [malice].) He is correct on the latter claim.

As to the proximate cause issue, Acosta argues that although a collision between ground vehicles was a foreseeable result of his conduct, one between airborne helicopters was not, noting his expert had never heard of a similar incident. He also contends the Costa Mesa helicopter pilot's violation of FAA regulations was a superseding cause. Because the deaths here were unusual, to say the least, the issue deserves special scrutiny.

Proximate cause in criminal cases is determined by ordinary principles of causation. (People v. Armitage (1987) 194 Cal.App.3d 405, 420 [239 Cal.Rptr. 515].)^[4] It is initially a question of fact for the jury to decide. (People v. Harris (1975) 52 Cal.App.3d 419, 427 [125 Cal.Rptr. 40].) When the sufficiency of the evidence is challenged, the court is not required to ""ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation omitted.] Instead the relevant question 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 beyond a reasonable doubt.' [Citation.]" (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R 4th 1255].)

"In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court 'must . . . presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citations.] The court does not, however, limit its review to the evidence favorable to the respondent. . . . '[O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record i.e., the entire picture of the defendant put before the jury and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial ; it is not enough for the respondent simply to point to "some" evidence supporting the finding, for "[n]ot every surface conflict of evidence remains substantial in the light of other facts." [Citation.]" (26 Cal.3d at pp. 576-577.)

To determine whether Acosta's conduct was not, as a matter of law, a proximate cause of death of the Costa Mesa helicopter's occupants, I enter a legal realm not routinely considered in published California cases. When a causation issue arises, it does so almost invariably in homicide cases (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, § 126, p. 146), and often involves a discussion of the subject severely limited to an expedient disposition of the narrow question at hand. This leaves the possibility for misapprehension about the number of factors which actually should be (or implicitly were) considered in resolving the issue. ^[5] I approach the issue broadly because several theoretical concepts of proximate cause impinge on this case.

"Proximate cause" is the term historically used^[6] to separate those results for which an actor will be held responsible from those not carrying such responsibility. The term is, in a sense, artificial, serving matters of policy surrounding tort and criminal law and based partly on expediency and partly on concerns of fairness and justice. (Perkins & Boyce, supra , at p. 776.) Because such concerns are sometimes more a matter of "common sense" than pure logic, the line of demarcation is flexible, and attempts to lay down uniform tests which apply evenly in all situations have failed. (Id . at pp. 776-777.) That does not mean general guidelines and approaches to analysis cannot be constructed.

The threshold question in examining causation is whether the defendant's act was an "actual cause" of the victim's injury. It is a sine qua non test: But for the defendant's act would the injury have occurred? Unless an act is an actual cause of the injury, it will not be considered a proximate cause. (Perkins & Boyce, supra , at pp. 771-772, 774; see People v. Capetillo (1990) 220 Cal.App.3d 211, 220 [269 Cal.Rptr. 250] [defendant's joyriding not shown to be the cause of accident]; People v. Scola, supra , 56 Cal.App.3d at p. 726 [defendant's speeding was actual cause of accident].)^[7]

The next inquiry is whether the defendant's act was a "substantial factor" in the injury. This test excludes those actual causes which, although direct, play only an insignificant role in the ultimate injury.^[8] Although there is no strict definition, the Restatement Second of Torts, supra , section 433, lists considerations in determining whether a factor is "substantial": (1) the number and extent of other factors contributing to the harm; (2) whether the forces created by the actor are continuous in producing the harm or merely create a condition upon which independent forces act; and (3) any lapse of time between the act and the harm. (Rest.2d Torts, supra , § 433, at p. 433.)

In California, the substantial factor issue has arisen most often where multiple causes act concurrently, but independently,^[9] to produce the harm.^[10] The test is one of exclusion only. Unless a cause is a substantial factor in the harm it will not be considered a proximate cause, but some substantial factor causes may not be deemed proximate causes. (Perkins & Boyce, supra , at p. 780; see People v. Caldwell, supra , 36 Cal.3d at pp. 220-221 [citing Perkins & Boyce]; People v. Pike (1988) 197 Cal.App.3d 732, 746 [243 Cal.Rptr. 54].)^[11]

A related concept which may lead to a refusal to treat an actual cause as a proximate cause is where a force set in motion by the defendant has "come to rest in a position of apparent safety.'" (Perkins & Boyce, supra , at pp. 780-781; see People v. Caldwell, supra , 36 Cal.3d at pp. 219-220.) Perkins and Boyce give the example of the actor who dislodges a rock which comes to rest against a tree. If the tree bends or breaks six months later, releasing the rock, the original action is not considered the proximate cause of any resulting harm. (Perkins & Boyce, supra , at p. 780.)^[12]

To this point I have spoken only of direct causes, "[causes] which produce[] a result without the aid of any intervening cause . . . ." (Perkins & Boyce, supra , at p. 787.) Because it is tautological, the definition is of little value in identifying a cause in the absence of a working definition of an indirect cause. However, Perkins and Boyce list several examples of direct causation, headed by the observation that, "If sequences follow one another in such a customary order that no other cause would commonly be thought of as intervening, the causal connection is spoken of as direct for juridical purposes even though many intervening causes might be recognized by a physicist." (Id . at p. 788, italics added.)

The critical concept at this juncture is that a direct cause which is a substantial factor in the ensuing injury is almost always a proximate cause of it. (Id. at pp. 788-790; see People v. French (1978) 77 Cal.App.3d 511, 523-525 [143 Cal.Rptr. 782] [defendant's drunk driving was direct cause of bicyclist's death].) This is so even if the result is exacerbated by a latent condition in the victim or caused by a third party. (People v. Fugatt * (Cal.App.) [drunken defendant struck allegedly defective gas tank of victims' car]; People v. Stamp (1969) 2 Cal.App.3d 203, 210-211 [82 Cal.Rptr. 598] [defendant triggered heart attack in store clerk during armed robbery]; 1 Witkin & Epstein, supra , at pp. 147-148.)^[13] The only exception is where the result is "highly extraordinary" in view of its cause. (See Rest.2d Torts, supra , § 435, p. 449.)^[14]

However, the defendant is not always the direct cause of the harm. Sometimes forces arise between the act of the defendant and the harm, called "intervening causes." They are of two types, dependent and independent, and include acts of God. (1 Witkin & Epstein, supra , at pp. 148-150; Perkins & Boyce, supra , at p. 791.)

An intervening cause is dependent if it is a normal or involuntary response to, or result of, the defendant's act. (1 Witkin & Epstein, supra , at p. 148; see also Perkins & Boyce, supra , at p. 791 ["[a]n intervening cause . . . produced by the first cause."].) These include flight and other voluntary or involuntary responses of victims, as well as defense, rescue and medical treatment by third parties. Even where such responses constitute negligent conduct, they do not supersede the defendant's act; i.e., they are nevertheless considered proximate causes of the harm. (People v. Armitage, supra , 194 Cal.App.3d at p. 420 [victim foolishly chose to attempt to swim to shore after defendant capsized the boat]; Perkins & Boyce, supra , at pp. 792-809.)^[15]

Conversely, when the defendant's conduct merely places the eventual victim in a position which allows some other action to cause the harm, the other action is termed an independent intervening cause. It usually supersedes the defendant's act; i.e., precludes a finding of proximate cause. (Perkins & Boyce, supra , at pp. 791, 809 ["merely happen[s] to take effect upon a condition created by the first cause[;] [P] operates upon a condition produced by an antecedent [cause] but is in no sense a consequence thereof"]; 1 LaFave & Scott, supra , at pp. 406-407 [distinguishing matters of "response" from matters of "coincidence"]; see 1 Witkin & Epstein, supra , at pp. 149-150.) The issue usually arises when the victim has been subjected to the independent harm after being disabled by the defendant, or is somehow impacted by the defendant's flight. (See People v. Pike, supra , 197 Cal.App.3d at pp. 747-748 [one police officer killed when struck by another while pursuing defendant]; People v. Harris, supra , 52 Cal.App.3d at p. 426 [pursuing officer kills third party while pursuing defendant]; Perkins & Boyce, supra , at pp. 809-811 [falling stone hits man disabled by defendant; girl recovering from gunshot wound contracts scarlet fever from treating physician; bystander kicks to death victim knocked down by defendant; decedent may have inexplicably run into fire caused by defendant].)

An independent intervening variable will not be superseding in three instances: (1) where it is merely a contributing cause to the defendant's direct cause;^[16] (2) where the result was intended; or (3) where the resultant harm was reasonably foreseeable when the act was done. (Perkins & Boyce, supra , at pp. 809-810; see also 1 Witkin & Epstein, supra , at p. 150; 1 LaFave & Scott, supra , at pp. 413-415.) As to the third exception, "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . . The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' [Citation.]" (People v. Harris, supra , 52 Cal.App.3d at p. 427.)

As Perkins and Boyce put it, "Foreseeability' is not a 'test' which can be applied without the use of common sense; it presents one of those problems in which 'we must rely on the common sense of the common man as to common things.' It is employed in the sense of 'appreciable probability.' It does not require such a degree of probability that the intervention was more likely to occur than not; and on the other hand it implies more than that someone might have imagined it as a theoretical possibility. It does not require that the defendant himself actually thought of it. For the purposes of proximate cause 'an appreciable probability is one which a reasonable man in ordering his conduct in view of his situation and his knowledge and means of knowledge, should, either consciously or unconsciously, take into account in connection with the other facts and probabilities then apparent.'" (Perkins & Boyce, supra , at pp. 817-818, fns. omitted.)^[17]

Prosser and Keeton, in an in-depth discussion of the dynamics of foresight, conclude that although it is desirable to exclude extremely remarkable and unusual results from the purview of proximate cause, it is virtually impossible to express a logical verbal formula which will produce uniform results. (Prosser & Keeton, supra , at p. 300.) I agree. The standard should be simply stated, exclude extraordinary results, and allow the trier of fact to determine the issue on the particular facts of the case using "the common sense of the common man as to common things.'" (Perkins & Boyce, supra , at p. 817.)^[18] As with other ultimate issues, appellate courts must review that determination, giving due deference to the trier of fact.

The "highly extraordinary result" standard serves that purpose. It is consistent with the definition of foreseeability used in California. (See People v. Harris, supra , 52 Cal.App.3d at p. 427.) It does not involve the defendant's state of mind, but focuses upon the objective conditions present when he acts.^[91] Like numerous other legal definitions, what it means in practice will be determined as case law develops. Limitations arising from the mental state of the actor can be left to concepts like malice, recklessness and negligence.

Because the highly extraordinary result standard is consistent with the limitation on direct causes, it simplifies the proximate cause inquiry. The analysis is: (1) was the defendant's conduct the actual cause of the harm (but for his actions would it have occurred as it did)? (2) was the result an intended consequence of the act? (3) was the defendant's action a substantial factor in the harm? and (4) was the result highly extraordinary in light of the circumstances?

If the first question is answered no, proximate cause is lacking. If answered yes, the next question must be examined. If the second question is answered yes, proximate cause is established. If answered no, the next question must be examined. If the third question is answered no, proximate cause is lacking. If answered yes, proximate cause is established unless the fourth question is answered yes, in which case it is lacking. The analysis does away with the need to consider the distinction between direct, concurrent, contributory, and dependent and independent intervening causes. It focuses, as it should, upon the role the defendant's act played in the harm, limiting culpability only where the conduct was de minimis or the result highly extraordinary. (See Perkins & Boyce, supra , at pp. 823-824 [using a similar approach].)

Here, but for Acosta's conduct of fleeing the police, the helicopters would never have been in position for the crash. However, there was no evidence he intended the harm, so I must examine questions three and four.

Although an extremely close question, Acosta's conduct was a substantial factor in causing the crash. He was fleeing when the accident occurred, and there was no lapse of time between his flight and the crash his action had not "come to rest." The only other factor operating at the time was the improper flight pattern of the Costa Mesa pilot. Although Acosta's horrendous driving did not cause the helicopter's improper maneuver, his flight undoubtedly infused excitement and tension into the situation, which can be considered to be a substantial factor. No similar case has held otherwise, although the third party collisions all have involved accidents on the ground. (See People v. Pike, supra , 197 Cal.App.3d 732; People v. Harris, supra , 52 Cal.App.3d 419; see also People v. Kemp (1957) 150 Cal.App.2d 654 [310 P.2d 680] [drag racer was proximate cause of accident involving the other racer].)

The result was not highly extraordinary.^[20] Although a two-helicopter collision was unknown to expert witness Turner and no reported cases describe one, it was "a possible consequence which reasonably might have been contemplated.'" (People v. Harris, supra , 52 Cal.App.3d at p. 427.) Given the emotional dynamics of any police pursuit, there is an "appreciable probability" that one of the pursuers, in the heat of the chase, may act negligently or recklessly to catch the quarry. (Perkins & Boyce, supra , at p. 817.)^[21] That no pursuits have ever before resulted in a helicopter crash or midair collision is more a comment on police flying skill and technology than upon the innate probabilities involved.^[22]

Justice Crosby's opinion parts company with this analysis, reasoning that "neither the intervening negligent conduct nor the risk of harm was foreseeable." (Separate opn. of Crosby, J., post , at p. 1407.) He justifies this conclusion by reference to the well-traveled opinion of Justice Cardozo in Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339 [162 N.E. 99, 100, 59 A.L.R. 1253]. Reliance on Palsgraf reveals the error in the analysis.^[23] Justice Cardozo approached the problem from the perspective of duty, concluding that the defendant owed no duty of care to an unforeseeable plaintiff. Although the interesting facts and novel analysis of Palsgraf^[24] have made it a favorite in law school texts, the four-to-three decision is not the gospel on proximate cause. (See generally Prosser & Keeton, supra , at pp. 273-274, 280-281, 284-289.) Because of its confusion between foreseeability as it relates to negligence and as it relates to causation, I have eliminated it from the proximate cause analysis.

Doing so avoids the undesirable risk of completely absolving a defendant of all liability on causation grounds when morally he should suffer some punishment for the consequences. When a defendant is the actual and substantial cause of the harm,^[25] the consequences of the act should depend upon the mens rea involved. (See Perkins & Boyce, supra , at p. 813; 1 LaFave & Scott, supra , at pp. 398-399.)

The undisputed facts of this case mandate the result. Contrary to Justice Moore's assertion (separate opn. of Moore, J., post , at p. 1400), I do not find the result extraordinary, but almost so. I presume he does not dispute that it was extremely unusual. In fact, he cites no similar instances of aircraft colliding during police pursuits.^[26] But neither does Justice Crosby cite any case to support his claim the result was highly extraordinary. ^[27]

Neither concurring opinion offers case law "on all fours," suggesting this case is unique and presents a close question. Partly because this is so, it is appropriate to rely on two compelling factors: the jury found proximate cause based on proper instructions,^[27] and the dearth of case law to support a rejection of that finding. Given these circumstances, a finding of proximate cause is appropriate.^[28]

II

Acosta also contends the evidence was insufficient as a matter of law to show he acted with malice, arguing it failed to establish he acted with a conscious disregard for a substantial risk of death. I agree.

Penal Code section 188 defines malice: "[It] may be express or implied. It is express when there is manifested a deliberate intention unlawfully to [kill]. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."

No contention is made that Acosta intentionally killed the victims. I deal with implied malice, a concept not well defined by the statute. (People v. Dellinger (1989) 49 Cal.3d 1212, 1217 [264 Cal.Rptr. 841, 783 P.2d 200].) Over the years the cases expressed the concept two ways. As People v. Dellinger, supra , described it, "[In one line of cases] we construed . . . implied malice as that state of mind where '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.' [Citations.] [P] [In another line of cases], we phrased the definition in a different way, holding that malice is presumed when '"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." [Citations.]" (Id . at p. 1218.)

The definitions contained two notable differences. The first mentions a wanton disregard for life, but the second uses a conscious disregard for life. And the first definition speaks of a high probability of death, while the second refers to consequences which are merely dangerous to life. Later cases remedied confusion arising from these disparities.

In People v. Watson (1981) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279], the Supreme Court held that "a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]" (Id . at pp. 296-297.) This conclusion comports with the analyses of the major commentators. (Perkins & Boyce, supra , at p. 858 ["heedless disregard of a harmful result, foreseen as a likely possibility"]; 2 LaFave & Scott, Substantive Criminal Law (1986) § 7.4, p. 205 ["to convict of murder . . . subjective realization should be required"].) People v. Dellinger, supra , 49 Cal.3d at page 1221 held that the term "conscious disregard for human life" best expresses the subjective appreciation standard.

Whether there must be a high probability of death arising from the defendant's conduct was considered by the Supreme Court in People v. Patterson (1989) 49 Cal.3d 615 [262 Cal.Rptr. 195, 778 P.2d 549], a second degree felony-murder case. A majority of the court found that a high probability of death was necessary for second degree felony murder because that is the standard required to show implied malice. In doing so it relied on substantial precedent. (Id . at pp. 626-627, 640-641; see also People v. Davenport (1985) 41 Cal.3d 247, 262 [221 Cal.Rptr. 794, 710 P.2d 861]; People v. Watson, supra , 30 Cal.3d at p. 300; People v. Poddar (1974) 10 Cal.3d 750, 757 [111 Cal.Rptr. 910, 518 P.2d 342]; People v. Spring, supra , 153 Cal.App.3d at p. 1205.)^[29] I can only conclude the requirement for implied malice is that there be a high probability that death will result from the defendant's act.^[30]

Thus, to sustain Acosta's conviction, I must conclude that a reasonable jury could find beyond a reasonable doubt (see People v. Johnson, supra , 26 Cal.3d at p. 576) that Acosta committed an act with a high probability it would result in death and a conscious disregard for the risk involved. (People v. Watson, supra , 30 Cal.3d at pp. 296-297, 300.)^[31] Our first task is to identify "the risk involved."

Relying on People v. Albright (1985) 173 Cal.App.3d 883, 886-887 [219 Cal.Rptr. 334], the Attorney General asserts the risk is that to human life in general. In Albright the court rejected the defendant's claim that the evidence must show he consciously disregarded the risk to the life of the ultimate victim. The court reasoned: "Nowhere in its opinion did the [court in People v. Watson, supra , 30 Cal.3d 290] suggest implied malice requires awareness of life-threatening risk to a particular person. Instead, implied malice may be found under Watson whenever, inter alia, the facts establish a defendant's awareness and conscious disregard that his conduct poses a high probability of death to some person. [Citation.] A contrary construction would lead to absurd results, and would conflict with numerous decisions by courts of this and other states. [Citations.]" (Id . at p. 887, fn. omitted.)

The result in Albright was correct. The suicidal defendant drove at speeds of 90 to 110 miles per hour while under the influence of alcohol, missing 3 cars but striking the last and killing the occupant. There was no requirement that he consciously disregard the safety of the actual victim to be guilty of murder. But if the Albright court meant to say he was liable for any death which ensued if he consciously disregarded the life of anyone , I respectfully disagree. I review the cases and authorities relied upon in Albright to discern the basis for the court's statement.

The first case cited was a decision by this court, People v. Spring, supra , 153 Cal.App.3d 1199. There, we said, "Malice aforethought neither presupposes nor requires any ill will or hatred of a particular victim." (Id . at p. 1204.) But the facts involved a direct physical assault by the defendant upon the victim. The emphasis was upon the absence of an ill will requirement, not the culpability of a defendant whose assault fells an unexpected victim.

Likewise, similar statements in People v. Poddar, supra , 10 Cal.3d at pages 759-760 and People v. Conley (1966) 64 Cal.2d 310, 321-322 [49 Cal.Rptr. 815, 411 P.2d 911] were general in nature and directed to diminished capacity issues. People v. Marcy (Colo. 1981) 628 P.2d 69, an out-of-state case, involved a man who shot his wife. The statement that ""extreme indifference to human life," by definition, does not address itself to the life of the victim, but to human life generally,'" was quoted as part of a discussion distinguishing Colorado's extreme indifference murder from an intentional killing. (Id . at p. 76.)

The only case cited in People v. Albright, supra , 173 Cal.App.3d 883 which dealt with a "nonspecific" victim was People v. Stein (1913) 23 Cal.App. 108 [137 P. 271]. (173 Cal.App.3d at p. 887.) There, the drunken defendant, apparently angered by noise emanating from an electric piano at the hotel where he was staying, ran into the room and fired five shots into the assembled crowd, killing a man.^[32] In affirming the judgment, the court opined, "The deliberate and unnecessary discharging of a gun into a multitude of people, with an utter disregard of the consequences of the act, whereby human life is destroyed, is murder, and malice will be implied, although the perpetrator of the act had no malice against any particular person of the multitude into which he so fired. [Citation.]" (23 Cal.App. at pp. 114-115, italics added.)

The statement of law is correct. If the defendant had "malice," in either the legal or informal sense, against the ultimate victim, the logical conclusion would be that the killing was intentional and done with "actual" malice. (Pen. Code, § 188.) But in both People v. Stein, supra , 23 Cal.App. 108 and People v. Albright, supra , 174 Cal.App.3d 883, the ultimate victim came from that group which his reckless act directly put at risk. In Stein it was the crowd in the piano room; in Albright it was motorists on the street. Factually, neither of these cases can stand for the proposition that if a defendant acts recklessly toward a discernable high risk group, he is strictly liable for a death which might occur outside the group.

Under the definition of implied malice, the defendant's conduct must carry a high probability of death. It is that risk which the defendant must consciously disregard and which must result in the death . Any other interpretation would allow a defendant to be held culpable for murder based upon a death which was barely foreseeable,^[33] and which had no conscious disregard associated with it.

Our Supreme Court has not countenanced such a result. In People v. Caldwell, supra , 36 Cal.3d 210, the defendant claimed that affirming his vicarious liability murder conviction^[34] would result in a "cleavage between culpability and criminal liability . . . ." (Id . at p. 223.) The court responded that "a common sense recognition of the idea that an act should be considered in the light of its natural and foreseeable results when they occur [citation] does not preclude inquiry into the felons' subjective knowledge of the likely result of their actions; rather, it informs the inquiry. The proper focus on the individual culpability of accomplices is retained by the requirement that one or more of them engage in conduct which it is highly probable (not merely foreseeable) will result in death, evincing a conscious disregard of human life. [Citations.]" (Ibid .)^[35]

The victim in Caldwell , an accomplice of the defendants as, along with the defendants, a felon who resisted capture by a display of arms, and within the group which faced a high probability of death. The victims here were not. The group of persons on the ground near Acosta faced a high probability of death. But he did not kill someone there and the risk created for the group in the air was minimal. Acosta's flight only caused the helicopter pilots to "be there." There is not a jot of evidence his frenetic style of driving affected the helicopter's pursuit in any way, let alone caused the negligent flying of the Costa Mesa pilot. As to the victims, his conduct did not create a high probability of death.^[36] No juror could have reasonably found to the contrary.

Furthermore, there is no evidence Acosta had a conscious disregard for any risk to the helicopters. Although he stated he knew his conduct was dangerous "to the bone," nothing connected the statement to the aerial surveillance. His knowledge that there were helicopters involved in the pursuit does not suffice. In the absence of more evidence, no reasonable juror could find a conscious disregard for a risk which is barely objectively cognizable.^[37]

III

Amicus curiae argues the prosecution's special instruction on the issue of proximate causation was erroneous. Taken together, however, the instructions adequately advised the jury.^[38]

The trial court gave four instructions on proximate cause. One was a modified combination of CALJIC No. 3.41 (5th ed. 1989 pocket pt.), and No. 8.56 (5th ed. 1988) and discussed concurrent casues and proximate cause in general.^[39] The other three dealt with the concept of intervening causes. The first two were submitted by Acosta and the third by the prosecution.^[40]

Jury instructions must be read together and their correctness determined from the entire charge given, not from parts of an instruction or one instruction alone. (People v. Burgener (1986) 41 Cal.3d 505, 538-539 [224 Cal.Rptr. 112, 714 P.2d 1251]; People v. Talamantez (1985) 169 Cal.App.3d 443, 454 [215 Cal.Rptr. 542].) The prosecution's special instruction cannot be considered in a vacuum. Through all of the instructions, the court properly explicated the concepts of proximate cause: actual cause, substantial factor, concurrent cause, intervening cause and extraordinary results. The court advised the jury to exonerate Acosta if it found the helicopter collision to be highly unusual or extraordinary. Amicus curiae does not contend the other proximate causation instructions were erroneous or deficient. At worst, the prosecution's instruction was superfluous.

The language of the prosecution's instruction was taken, almost verbatim, from four cases. (People v. Pike, supra , 197 Cal.App.3d at pp. 747, 749; People v. Armitage, supra , 194 Cal.App.3d at pp. 420-421; People v. Harris, supra , 52 Cal.App.3d at p. 427; People v. Hebert (1964) 228 Cal.App.2d 514, 521 [39 Cal.Rptr. 539].) Although the instructions were not stated in the simplified terms I have set forth, they were ample and cogent.

IV *

[Text omitted.]

The judgment is reversed on the murder counts and is affirmed in all other respects.^[43]

CONCUR BY: MOORE (In part) CROSBY (In part)

DISSENT BY: MOORE (In part) CROSBY (In part)

DISSENT

MOORE, Acting P. J., Concurring and Dissenting.

I dissent. Once again, the lead opinion of this court expresses its antipathy with the concept of implied malice by ignoring Supreme Court precedent. In People v. Dellinger (1989) 49 Cal.3d 1212 [264 Cal.Rptr. 841, 783 P.2d 200], the Supreme Court reversed this court, holding the "wanton disregard for human life" definition of implied malice, while not as comprehensible as the "conscious disregard for human life" standard, was equivalent to the latter test and adequately conveyed to a jury the requirement that the defendant subjectively realize his or her conduct presents a life-threatening risk to others. (Id . at pp. 1215, 1219-1221.) The court specifically approved the definition of implied malice contained in the most recent revisions of CALJIC Nos. 8.11 and 8.31 (5th ed. 1988 bound vol.). (49 Cal.3d at p. 1222.) Nonetheless, the lead opinion now wants to create a new definition of implied malice and then employ it to conclude the evidence does not support appellant's conviction for murder. Justice Crosby's concurrence and dissent finds no criminal liability at all because the victims were in aircraft, not ground units.^[1]

With respect to the other issues presented in this case, I concur in the result, though not the lead opinion's reasoning concerning the sufficiency of the evidence and instruction of the jury on proximate cause. I also agree appellant's postarrest statements were properly admitted at trial. Finally, I would conclude the lower court's sentence was proper. The judgment should be affirmed in its entirety.

I. Proximate Cause

I agree the evidence supports the jury's finding appellant proximately caused the victims' deaths. But I find the lead opinion's creation of a new test for proximate cause unnecessary and inappropriate. I also conclude the lower court's instructions on proximate cause were correct.

"The question whether defendant's acts or omissions criminally caused the victim's death is to be determined according to the ordinary principles governing proximate causation. [Citations.] Proximate cause of a death has traditionally been defined in criminal cases as 'a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred.' [Citations.]" (People v. Armitage (1987) 194 Cal.App.3d 405, 420 [239 Cal.Rptr. 515].)

Negligence on the part of the victim or another will not necessarily break the chain of causation. (People v. Armitage, supra ,194 Cal.App.3d at p. 420; People v. Harris (1975) 52 Cal.App.3d 419, 426 [125 Cal.Rptr. 40].) "Although defendant's own unlawful act must be a proximate cause of the death, negligence on the part of the victim is not a defense to criminal liability. [Citations.] Moreover, defendant's conduct can be a proximate cause of a death even where death results from collision with a third vehicle. [Citations.] . . . [P] A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is 'dependent' and not a superseding cause, and will not relieve defendant of liability. [Citation.] '(1) The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. (2) The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' [Citation.]" (People v. Harris, supra , at pp. 426-427.)

The present case is analogous to prior cases. In People v. Harris, supra , 52 Cal.App.3d 419, the Court of Appeal reversed the dismissal of a vehicular manslaughter prosecution where a police car pursuing defendant in a high speed chase collided with another vehicle killing one of its passengers. "It was reasonably foreseeable that the officers would continue to chase him as he speeded recklessly and circuitously over public thoroughfares and failed to stop at boulevard stops, thus setting in motion circumstances creating peril to others on the public streets and a high probability that collisions, injuries and deaths would occur in the course of the chase." (Id . at p. 427.)

In People v. Pike (1988) 197 Cal.App.3d 732 [243 Cal.Rptr. 54], the Court of Appeal affirmed a vehicular manslaughter conviction that arose when two police cars pursuing the defendant in a high-speed chase collided resulting in the death of one of the officers. The evidence reflected the deceased officer's negligence contributed to the collision. (Id . at pp. 748-750.) Citing Harris , the court stated: "Defendant's . . . acts consisted of his seeking to elude the pursuing law enforcement officers by charging through traffic at extremely high speeds. . . . The speeds, places, conditions and methods of driving were primarily dictated by defendant; he chose the route and speeds. Predictably, the officers chose to follow suit . . . . The probability that this might result in one or both of the officers losing control and/or colliding with another vehicle or some object is sufficient to establish that defendant's conduct was a cause that, in natural and continuous sequence, produced [the officer's] death and without which that death would not have occurred. [Citations.]" (Id . at pp. 749-750.)

I fail to see any significant difference between Pike, Harris and this case. Three persons died when two police vehicles collided during a nighttime, high-speed vehicle pursuit between contiguous cities located in a densely populated area. The pursuit arose when appellant chose to flee rather than submit to a detention by two police officers.

The mere fact the collision involved aircraft rather than ground vehicles is a distinction without a difference. The use of helicopters by the police is well known; their advantage in assisting ground units to locate and pursue a fleeing vehicle is obvious. Given the route chosen by appellant, it was foreseeable police helicopters from different cities would participate in the chase. Furthermore, appellant knew that more than one helicopter was involved in the chase. The possibility that during the nighttime chase one of the helicopter pilots might negligently operate his craft and thereby cause a midair collision was as foreseeable as the negligent operation of the police cars in Pike and Harris .

Both the lead opinion and Justice Crosby's opinion suggest the helicopter collision was an "extraordinary" event, noting research has not unearthed any prior case involving a similar incident. (Lead. opn., ante , at pp. 1380, fn. 3; 1389; 1391, fn. 27: separate opn. of Crosby, J., post , at p. 1408.) But this case does not present the first recorded collision between two aircraft while in flight. Over the past several years there have been several incidents of either midair collisions or "near misses" between aircraft. Furthermore, these incidents occurred in routine flight operations. Indeed, many experts have expressed a concern that the potential for midair collisions between aircraft is increasing. If such accidents occur between aircraft engaged in routine operations, it should come as no surprise that two police helicopters participating in the nighttime pursuit of a fleeing motorist might also collide with each other.

The mere fact a midair collision between two helicopters has never occurred before does not defeat the existence of proximate cause. In Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40 [123 Cal.Rptr. 468, 539 P.2d 36], defendant radio station conducted a contest where listeners could win prizes by being the first to locate a radio personality at specified locations in the Los Angeles area. During the contest, two participants in the contest were following the radio personality. While maneuvering for position, the two participants forced plaintiffs' decedent's car onto the center divider where it overturned. Plaintiffs successfully sued the participants and radio station for wrongful death. The station appealed. Claiming it owed no duty to the decedent because of its conduct, the station argued the accident was not foreseeable because there had been no similar prior injury.

The Supreme Court affirmed, rejecting the station's argument. "Such an argument confuses foreseeability with hindsight, and amounts to a contention that the injuries of the first victim are not compensable. 'The mere fact that a particular kind of an accident has not happened before does not . . . show that such accident is one which might not reasonably have been anticipated.' [Citation.] Thus, the fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts." (Weirum v. RKO General, Inc., supra , 15 Cal.3d at p. 47.)

This case presents an analogous situation. While Weirum involved the question of a defendant's duty to exercise due care, the test of foreseeability is the same where the issue is proximate cause. (Sagadin v. Ripper (1985) 175 Cal.App.3d 1141, 1159 [221 Cal.Rptr. 675]; Bilyeu v. Standard Freight Lines (1960) 182 Cal.App.2d 536, 542 [6 Cal.Rptr. 65]. See also Maupin v. Widling (1987) 192 Cal.App.3d 568, 576 [237 Cal.Rptr. 521]; Premo v. Grigg (1965) 237 Cal.App.2d 192, 195 [46 Cal.Rptr. 683]; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 751, p. 90.)

The events leading up to the helicopter collision were set in motion by appellant's decision to flee from the police. It was predictable that, in response, the police would pursue appellant and use whatever means available to them to locate and capture him. The possibility that during the chase the pursuing police vehicles might be operated in a negligent manner thereby causing a collision was sufficiently foreseeable to establish appellant's conduct as the proximate cause of the accident. Therefore, I conclude the evidence is sufficient to support the jury's finding of proximate cause.

II. Implied Malice

The lead opinion holds implied malice requires proof the defendant committed an act with a high probability it would result in death. (Lead opn., ante , pp. 1391-1392, 1393-1394.) Furthermore, the lead opinion concludes the persons killed in the helicopter collision were not within the class of persons who faced a high probability of death from appellant's conduct. (Lead opn., ante , p. 1394.) This new standard is unsupported by any authority and contrary to recent decisions of the Supreme Court.

In People v. Watson (1981) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279], the Supreme Court held a defendant who, while intoxicated, drove a car at excessive speeds through city streets nearly colliding with other vehicles before striking and killing one motorist, could be prosecuted for second degree murder based on implied malice. (Id . at pp. 299-301.) In explaining the concept of implied malice, the court referred to two definitions of the term. "We have said that second degree murder based on implied malice has been committed when a person does '"'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'" . . . .' [Citations.] Phrased in a different way , malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. [Citation.]" (Id . at p. 300, italics added.)

In People v. Patterson (1989) 49 Cal.3d 615 [262 Cal.Rptr. 195, 778 P.2d 549], the Supreme Court granted review in a case from this court to consider the question of whether a defendant could be prosecuted for second degree felony murder where the victim died after ingesting cocaine furnished to her by the defendant in violation of Health and Safety Code section 11352. The trial court concluded the statute could be violated in ways that would not constitute an inherently dangerous felony and dismissed the murder charge. On appeal, this court affirmed that ruling. (Id . at p. 619.)

In a badly divided decision, the Supreme Court reversed this court's decision and concluded that, while the elements of a crime must be viewed in the abstract to determine whether it is an inherently dangerous felony (49 Cal.3d at pp. 620-622), since section 11352 had no "primary element" a court should focus on the defendant's furnishing cocaine in deciding whether the offense was inherently dangerous. (Id . at pp. 622-625, 627-628.)

For guidance, the court then considered the meaning of the phrase "inherently dangerous to life." In this context, Justice Kennard's lead opinion stated: "Implied malice, for which the second degree felony-murder doctrine acts as a substitute, has both a physical and a mental component. The physical component is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life.' [Citation.] The mental component is the requirement that the defendant 'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.' [Citation.] [P] The second degree felony-murder rule eliminates the need for the prosecution to establish the mental component. The justification therefor is that, when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved. The physical requirement, however, remains the same; by committing a felony inherently dangerous to life, the defendant has committed 'an act, the natural consequences of which are dangerous to life' [citation], thus satisfying the physical component of implied malice. [P] The definition of 'inherently dangerous to life' in the context of the implied malice element of second degree murder is well established. An act is inherently dangerous to human life when there is 'a high probability that it will result in death.' [Citations.] [P] We therefore conclude by analogy to the established definition of the term 'dangerous to life' in the context of the implied malice element of second degree murder [citation] that, for purposes of the second degree felony-murder doctrine, an 'inherently dangerous felony' is an offense carrying 'a high probability' that death will result. . . ." (49 Cal.3d at pp. 626-627. Fns. omitted.)

Justices Mosk, Broussard and Panelli concurred in the definition of what constitutes an inherently dangerous felony. (49 Cal.3d at pp. 640-641.) No member of the court questioned or criticized Justice Kennard's definition of implied malice.

Three and one-half months later, the Supreme Court, by a six-to-one vote, again reversed a decision by this court in People v. Dellinger, supra , 49 Cal.3d 1212. The defendant was convicted of the second degree murder of his stepdaughter, a two-year-old infant, who died as a result of a blow to her head and the ingestion of cocaine. At trial, the lower court instructed the jury on implied malice using the 1983 version of CALJIC No. 8.11 (4th ed. pocket pt.) which contained both of the definitions stated in People v. Watson, supra , 30 Cal.3d at page 300, connected by the disjunctive word "or." Defendant challenged the use of the "wanton disregard for human life" definition and this court reversed, concluding that definition was confusing and failed to convey the requirement a defendant subjectively appreciate the life-threatening risk his conduct posed to the victim. (49 Cal.3d at p. 1217.)

The Supreme Court granted review and reversed the decision of this court. First, the court concluded the "wanton disregard for human life" definition adequately conveyed that the defendant must have a subjective appreciation of his conduct's life-threatening risk. (People v. Dellinger, supra , 49 Cal.3d at pp. 1217-1221.) In so ruling, the court noted "the two definitions of implied malice which [had] evolved . . . articulated one and the same standard." (Id . at p. 1219.)

Nonetheless, Dellinger concluded the "wanton disregard for human life" definition had become "superfluous," and "[t]he better practice in the future is to charge juries solely in the straight-forward language of the 'conscious disregard for human life' definition of implied malice." (People v. Dellinger, supra , 49 Cal.3d at p. 1221.) The court then considered the 1988 revision of CALJIC Nos. 8.11 and 8.31 (5th ed. 1988 bound vol.) which employs only the "conscious disregard for human life" test and stated: "We approve of this newly revised implied malice instruction, and agree with the CALJIC committee's conclusion that the 'conscious disregard for human life' definition, standing alone, is 'more comprehensible to the average juror.' [Citation.]" (Id . at p. 1222.) A few months later, the Supreme Court reaffirmed this holding in People v. Douglas (1990) 50 Cal.3d 468, 515-516 [268 Cal.Rptr. 126, 788 P.2d 640].

The foregoing cases contradict the attempt by the lead opinion to redefine implied malice. Its author derives the requirement that the prosecution must prove the defendant committed an act with a high probability it would result in death from People v. Patterson, supra , 49 Cal.3d 615. But that case involved the felony-murder doctrine. It is axiomatic that in a murder prosecution based upon a felony-murder theory, independent proof of malice is not required because it is not an element of the offense. (People v. Dillon (1983) 34 Cal.3d 441, 465, 474-476 [194 Cal.Rptr. 390, 668 P.2d 697].)

Adding a high probability of death requirement to the present "conscious disregard for life" definition of implied malice is absurd. Both Watson and Dellinger make patently clear the "wanton disregard for human life" and "conscious disregard for life" definitions are equivalent. Therefore, the present definition of implied malice found in CALJIC Nos. 8.11 and 8.31, which was read to the jury in this case, properly defined the concept. Adding the high probability of death requirement to the "conscious disregard for life" definition is merely redundancy.

The same issue was recently considered by Division One of this court in People v. Cleaves (1991) 229 Cal.App.3d 367 [280 Cal.Rptr. 146]. There, the defendant was convicted of second degree murder based on his assisting a person to commit suicide. On appeal, defendant argued the current versions of CALJIC Nos. 8.11 and 8.31 were erroneous because they referred to an act "The natural consequences [of which] are dangerous to human life," and not an act "involving a high degree of probability that it will result in death . . . ." Citing Watson and Dellinger , Division One stated: "Moreover, contrary to Cleaves's suggestion, Supreme Court precedent does not establish that the term 'high probability of death,' as opposed to the phrase 'dangerous to human life,' has been utilized as the pivotal terminology to define implied malice. Rather, the two phrases have been used as alternative definitions for the same concept. . . . [P] Cleaves has cited no authority which requires that implied malice be defined with the phrase high probability as opposed to dangerous to human life. The phrases can be viewed as synonymous i.e., an act for which the natural consequences are dangerous to human life by its nature involves a high probability of death. . . ." (229 Cal.App.3d at pp. 377-378.)

The lead opinion attempts to avoid the foregoing by concluding "the focus of the court in Dellinger was only upon the use of 'conscious disregard for human life' in place of 'wanton disregard for human life.' The Supreme Court did not consider the language in the instructions concerning the degree of probability that death will result from the defendant's act. 'It is axiomatic that cases are not authority for propositions not considered.' [Citations.]" (Lead opn., ante , p. 1393, fn. 30.)

However, Dellinger made clear the Supreme Court's position concerning the definitions of implied malice. "Although we hold that the 'wanton disregard for human life' definition of implied malice embodied in the 1983 revision of CALJIC No. 8.11 independently conveys the 'subjective awareness' requirement to the jury, we are nevertheless persuaded that, by contemporary standards, it is a superfluous charge. The better practice in the future is to instruct juries solely in the straightforward language of the second definition in that instruction that malice is implied when the killing results from an intentional 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. [Citations.]" (People v. Dellinger, supra , 49 Cal.3d at p. 1215.)

Later in the opinion, the court repeats this conclusion and expressly approves the most recent revisions of CALJIC Nos. 8.11 and 8.31 which incorporate only the "conscious disregard for life" definition. (49 Cal.3d at pp. 1221-1222.) Subsequent appellate decisions have employed the revised definition of implied malice without finding it necessary to add the "high probability of death" requirement. (See People v. David (1991) 230 Cal.App.3d 1109, 1114 [281 Cal.Rptr. 656]; People v. Murray (1990) 225 Cal.App.3d 734, 745-746 [275 Cal.Rptr. 498]; People v. Butler * (Cal.App.)) In light of the Supreme Court's repeated approval of the current implied malice definition, the lead opinion's contrary reading of Dellinger is but another manifestation of its author's revulsion for implied malice.

I also reject the lead opinion's conclusion the victims were not within the zone of danger created by appellant's conduct. The opinion asserts "The group of persons on the ground near Acosta faced a high probability of death. But he did not kill someone there and the risk created for the group in the air was minimal. Acosta's flight only caused the helicopter pilots to 'be there.' There is not a jot of evidence his frenetic style of driving affected the helicopter's pursuit in any way, let alone caused the negligent flying of the Costa Mesa pilot. As to the victims, his conduct did not create a high probability of death. . . ." (Lead opn., ante , at p. 1396, fn. omitted.) This analysis merely employs the concept of proximate causation under the guise of implied malice.

In People v. Albright (1985) 173 Cal.App.3d 883, 886-887 [219 Cal.Rptr. 334], the court rejected a claim the evidence must show the defendant encountered a risk knowing it posed a high probability of danger to the life of the ultimate victim. "Nowhere in its opinion did the Watson court suggest implied malice requires awareness of life-threatening risk to a particular person. Instead, implied malice may be found under Watson , whenever, inter alia, the facts establish a defendant's awareness and conscious disregard that his conduct poses a high probability of death to some person. [Citation.] A contrary construction would lead to absurd results, and would conflict with numerous decisions by courts of this and other states. . . ." (Id . at p. 887. fn. omitted.)

The lead opinion questions the holding in Albright arguing it is erroneous to conclude a defendant would be "liable for any death which ensued if he consciously disregarded the life of anyone . . . ." (Lead opn., ante , at p. 1394.) But Albright was concerned with the element of malice, not proximate cause. The reasoning employed in that case assumed the defendant had proximately caused the victim's death. Here, as well, the jury was required to decide whether appellant proximately caused the victims' deaths and found that he did. Furthermore, the lower court fully and adequately instructed them on the subject and the lead opinion concedes the evidence supports the jury's finding on proximate causation.

I also conclude the evidence supports the jury's finding appellant acted with implied malice. After consuming alcohol, cocaine, and heroin, appellant took the police on a 50-mile chase through a highly urban county, exceeding the speed limit, driving the wrong way, driving with his lights off, ignoring traffic control devices, making illegal turning movements, colliding with one vehicle and nearly causing several other accidents. He admitted he knew police vehicles, including helicopters, were pursuing him, and that his conduct was dangerous at the time, but defiantly continued driving in the same fashion anyway.

Appellant frequently drove on the wrong side of roads during the chase, ignored traffic control devices, and even left the road where necessary to skirt other traffic. Appellant slowed his vehicle only where it was necessary to negotiate a turn or steep grade, or because of heavy traffic, not in deference to the health and safety of his fellow motorists. His attempts to warn other drivers by flashing the Pulsar's headlights was, at best, only a minimal effort to avoid collisions. Contrary to appellant's claim, he crossed and recrossed freeway traffic lanes on several occasions during the chase.

The judgment should be affirmed. ^[2]

CROSBY, J., Concurring and Dissenting.

Whether the defendant may be held criminally culpable for the tragic deaths in this case is the key issue before us. Justice Wallin says yes, but not for murder. Justice Moore says yes and for murder. I disagree with both because the law does not assign blame to an otherwise blameworthy actor when neither the intervening negligent conduct nor the risk of harm was foreseeable.^[1] (Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 210-211 [186 Cal.Rptr. 847]; People v. Hebert (1964) 228 Cal.App.2d 514, 520 [39 Cal.Rptr. 539].)

Or, as Justice Cardozo put it, "We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the consequences.^[2] Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." (Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339 [162 N.E. 99, 100, 59 A.L.R. 1253].) The occupants of these helicopters were surely not "within the range of apprehension" of a fleeing criminal on the ground.^[3]

To be sure, defendant represented a threat to everyone traveling the same roads and would have been responsible for any injury directly or indirectly caused by his actions in those environs; but to extend that responsibility to persons in the air, whose role was merely to observe his movements, a simple enough task in far speedier helicopters, defies common sense.^[4] It was perfectly foreseeable that someone would be hurt on the ground via some sort of causal chain connecting to defendant's conduct; the opposite is true of the airborne observers. They were not in the zone of danger in this case by any stretch of the imagination, and the manner and circumstances of the collision could hardly have reasonably been foreseen. Indeed, the lead opinion admits no similar accident has ever occurred anywhere according to our own research, as well as the trial expert. Although less remote than a dispatcher suffering a coronary, perhaps, this was a "highly extraordinary result" (lead opn., ante , p. 1388) by any measure and, properly viewed, beyond the long arm of the criminal law.^[5]

I do not address the implied malice issue, except to concur in the result reached in the lead opinion and to note that its resolution there appears entirely inconsistent with the conclusion reached in the proximate cause discussion. For the reasons noted above, I would reverse with directions to dismiss the charges based on the helicopter collision.^[6]

[2] The pilot of the Newport Beach helicopter also testified that the correct procedure in changing the lead helicopter is for the helicopter relinquishing the lead to make a gradual climbing turn, stay in radio communication, and keep a safe distance away.

[3] Our research yielded no published civil or criminal case nationwide which involved a two-helicopter collision.

[4] But see Perkins and Boyce, Criminal Law (3d ed. 1982) pages 776-777, cautioning against use of tort law causation cases to determine the outcome in criminal cases where different factors and interests come into play. (See also 1 LaFave & Scott, Substantive Criminal Law (1986) § 3.12, pp. 397-398.)

[5] For example, in People v. Scola, supra , 56 Cal.App.3d 723, the court stated that the prosecution's burden of showing proximate cause is met "if the state produces evidence from which it may be reasonably inferred that appellant's act was a substantial factor in producing the accident. [Citations.]" (Id . at p. 726.) Under the facts of that case, the statement was correct because there was no intervening cause and the resulting harm was not extraordinary. But, as I shall discuss, it would be incorrect to infer that the prosection need never show more.

[6] The American Law Institute has urged the use of "legal cause" instead. (Perkins & Boyce, supra , at p. 775.) Although there is some merit to its arguments, I abide with the traditional term, "proximate cause."

[7] A tricky situation is presented where two independent actors each inflict wounds which would alone be fatal. Perkins and Boyce deal with the problem by reasoning that but for the individual act of each, the death would not have occurred as it did . (Perkins & Boyce, supra , at p. 773.) LaFave and Scott submit that a sine qua non analysis does not work, but actual cause may be found if the act was a substantial factor in the death. (1 LaFave & Scott, supra , at pp. 394-395.)

Although the approach of Perkins and Boyce is somewhat artificial, I prefer it over that of LaFave and Scott. It could be argued that a cause is not substantial if the victim would have died anyway. And, as I shall discuss, the substantial factor issue is best reserved for exclusion from culpability; i.e., "but for" causes are not sufficient unless they are a substantial factor in the harm.

Under both approaches the result is the same. An actor who delivers a deadly blow will suffer the consequences even though another independent deadly force is also applied, a result in keeping with the use of proximate cause analysis to assign appropriate culpability.

[8] I will consider cases where there is an intervening cause separately, as the commentators have. Arguably, an independent intervening cause could be explained by saying it rendered the defendant's act "insubstantial." However, the traditional approach has been to determine only whether the defendant's act is substantial in the abstract or in comparison with a contributory or concurrent cause. If it is not, the analysis goes no further. If it is, the question becomes whether there is an intervening cause which should relieve the defendant of responsibility. (Perkins & Boyce, supra , at pp. 790-823; 1 Witkin & Epstein, supra , at pp. 148-151; 1 LaFave & Scott, supra , at pp. 406-411, 413-414; see also Rest.2d Torts, § 435 et seq., pp. 449 et seq.)

[9] If the actors are acting in concert, both would be culpable using an aiding and abetting theory, even if only one directly caused the death. (See People v. Ross (1979) 92 Cal.App.3d 391, 400-401 [154 Cal.Rptr. 783] [defendant also culpable on aiding and abetting theory]; 1 LaFave & Scott, supra , at p. 396.)

[10] For example, in People v. Caldwell (1984) 36 Cal.3d 210 [203 Cal.Rptr. 433, 681 P.2d 274], the Supreme Court found the provocative conduct of two of the defendants in resisting apprehension was a substantial factor in comparison to the threatening behavior of a codefendant who was eventually killed by the police. Perkins and Boyce give as an example two actors who independently inflict knife wounds upon the victim, one of which severs the jugular while the other barely breaks the skin. Although technically a concurrent cause, the latter is insubstantial. (Perkins & Boyce, supra , at p. 779.) However, if a cause is "substantial," it will be treated as a proximate cause even if there is another concurrent or contributory cause. (People v. Ross, supra , 92 Cal.App.3d at pp. 400-401 [defendant brought victim to room and helped tie him before codefendant beat him and set him on fire]; People v. Vernon (1979) 89 Cal.App.3d 853, 864 [152 Cal.Rptr. 765] [defendant participated in beating victim to death]; see also 1 LaFave & Scott, supra , at pp. 394-396 [suggesting the substantial factor test is only appropriate in concurrent cause cases].)

Perkins and Boyce treat "contributory negligence" of the victim or a third party as a contributory cause. (Perkins & Boyce, supra , at pp. 782-787, but see p. 787 [discussing third party negligence as intervening].) "Contributory negligence" can manifest itself when victims are negligent in escape efforts or are involved in automobile accidents, or when third parties render defense or treatment. Although it is a rather fine distinction, the approach which analyzes such acts as intervening causes, which I discuss below, makes better sense, at least when they are done in response to an act of the defendant. (See People v. Armitage, supra , 194 Cal.App.3d at p. 420 [victim drowned in attempt to swim to shore after drunken defendant capsized the boat]; People v. Harris, supra , 52 Cal.App.3d at p. 426 [officer pursuing defendant at great speeds involved in accident killing victim]; Perkins & Boyce, supra , at p. 809 [discussing a contributory cause as intervening.)

[11] I have noted the potential mischief in the statement in People v. Scola, supra , 56 Cal.App.3d at page 726, that the prosecution meets its burden by producing "evidence from which it may be reasonably inferred that [the defendant's] act was a substantial factor in producing the accident." In cases with a question of intervening cause, the analysis does not stop at that point unless intervening cause issues are subsumed under the substantial factor test. (See fn. 7, ante .)

[12] Perkins and Boyce also give the example of a wife who is forced out into freezing weather by her husband, and opine that the action of the husband comes to a point of rest when the wife refuses an opportunity to take shelter at her father's residence. They eschew using the "contributory negligence' of the wife" as the explanation for the lack of proximate causation, reasoning that contributory negligence is not a defense to the prosecution. (Id . at p. 781, fn. 74.)

I part company with this analysis. The husband's act has not "come to rest in a position of apparent safety," albeit only due to the wife's affirmative decision not to go inside her father's house. And, although the principle that the victim's contributory negligence is not a defense is frequently quoted in California cases (see, e.g., People v. Pike, supra , 197 Cal.App.3d at pp. 747-748; People v. Armitage, supra , 194 Cal.App.3d at p. 420; People v. Harris, supra , 52 Cal.App.3d at p. 426; CALJIC No. 8.56), it is not applicable, as phrased, in a proximate cause analysis.

Contributory negligence involves the concept of determining civil responsibility based upon lack of care by the parties. (See Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 809-811 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393].) Almost by definition it would not be a defense to a criminal action. Even so, it deals with a state of mind, not causation. As I shall discuss, its only relevance is in determining the foreseeability that an intervening act, independent of the defendant, will cause harm.

Thus, Perkins and Boyce's example is better explained by concluding the wife's refusal of shelter in freezing weather was the extraordinary end produce of the husband's action. If this example is excluded, the "comes to rest" concept can be categorized as a corollary of the substantial factor rule.

[13] Perkins and Boyce treat the activation of a latent condition as a dependent intervening cause. (Perkins & Boyce, supra , at p. 792.) Although their approach is plausible, I prefer to treat such situations as the exacerbated direct results of the defendant's acts. (See 1 Witkin & Epstein, supra , at pp. 147-148.)

[14] Criticizing the use of this term, Prosser and Keeton describe it as "the underlying idea of a limitation of liability short of the remarkable, the preposterous, the highly unlikely, . . . the cock-eyed and far-fetched . . . ." (Prosser & Keeton, Torts (5th ed. 1984) § 43, p. 299.) They point out that the limitation, coupled with the principle that the exact result of the actor's conduct need not have been foreseen or foreseeable (1 Witkin & Epstein, supra , at p. 150), produces confusion and varied results. (Prosser & Keeton, supra , at pp. 299-300.)

Nevertheless, there is a need for some flexibility and common sense in the determination of proximate cause. (Perkins & Boyce, supra , at pp. 776-777.) Where there is flexibility in any legal standard, it will invariably be applied with some inconsistency. But no court or commentator of which I am aware has argued for absolute liability for all directly caused results.

To see why, I need only hypothesize that the excitement of the Acosta pursuit triggered a fatal heart attack in a police dispatcher. Acosta's conduct would be a direct and substantial factor in it, but I doubt any court would hold the conduct to be the proximate cause of the death. The only analytical route to absolve Acosta would be to find the heart attack was too extraordinary a result to merit culpability. (Compare People v. Stamp, supra , 2 Cal.App.3d 203 [defendant directly threatened clerk with a gun].)

[15] The refusal to allow "contributory negligence" to be a bar to a proximate cause finding need not be the product of any mechanical policy rule. It can be grounded in the notion that it is not "abnormal" for people to react less "reasonably" under stress than if the stress were not present. For purposes of ascribing causal responsibility it may be said that a negligent or foolish response is "normal."

To the extent that a dependent intervening cause is thought to "directly" carry through the act of the defendant to a harmful result, this analysis comports well with the rule that a defendant's act is the proximate cause of any harm caused directly by his act unless the result is "highly extraordinary." It also allows the court to find that a negligent, but highly extraordinary response precludes a finding of proximate cause, while a reckless but predictable response does not. (See, e.g., People v. Armitage, supra , 194 Cal.App.3d at p. 421 [victim's reckless reaction was not "wholly abnormal"]; compare Mull v. Ford Motor Co. (2d Cir. 1966) 368 F.2d 713 [negligent driving by taxi driver superseded negligent design and manufacture of taxi]; Batts v. Faggart (1963) 260 N.C. 641 [133 S.E.2d 504] [negligence of second driver superseded accident caused by first driver].) The focus is properly on the objective conditions present at the time the defendant perpetrated the causal act and the predictable, albeit sometimes unreasonable, responses of human beings to them. (See Perkins & Boyce, supra , at p. 809; 1 LaFave & Scott, supra , at pp. 407-408.)

[16] Of course, this is a restatement of the principle that the defendant is culpable if his direct cause is a substantial factor in the harm, even if there is a concurrent cause.

[17] Although this statement is cogent, it is unfortunate the last sentence falls back into the concept of foresight from the perspective of a reasonable person. The focus should remain solely on the probability of the result under the circumstances.

[18] Ultimately, law involves the attempt to deal with life on paper. I adhere to the principle that until and unless humans can use language precisely to deal with every problem and situation, some amount of vagueness in legal standards is necessary and desirable. It allows triers of fact to use valid human instincts to reach the correct result, even when language cannot adequately describe the path. (See Christie, Vagueness and Legal Language (1964) 48 Minn.L.Rev. 885.)

[19] The Model Penal Code takes a similar approach, focusing on whether the result is "too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense." (Model Pen. Code, § 2.03(2)(b).) LaFave and Scott also appear to look to the extraordinary nature of the result in determining causal responsibility, although they discuss it in terms of foreseeability. (1 LaFave & Scott, supra , at pp. 390, 396-397, 400, 402-405, 407-415.)

[20] I reach this conclusion with due regard to LaFave and Scott's observation that proximate cause should not be found as readily in non-intentional crimes, i.e., those involving recklessness or negligence. (1 LaFave & Scott, supra , at pp. 398-399.)

[21] As I have mentioned (see fn. 15, ante), reckless conduct is not "highly extraordinary" per se. It depends upon the circumstances. (See People v. Armitage, supra , 194 Cal.App.3d at p. 420.) I need not deal with that problem here. The Costa Mesa pilot was negligent, but there was no evidence he was reckless. No statements show his state of mind. Turner opined he violated an FAA regulation prohibiting "reckless and careless " flying without specifying the precise standard of care the pilot failed to meet. Substantial evidence supports the inference he was merely negligent.

[22] In People v. Pike, supra , 197 Cal.App.3d at page 750, the court concluded, "The speeds, places, conditions and methods of driving were primarily dictated by defendant; he chose the route and speeds. Predictably, the officers chose to follow suit . . . . The probability that this might result in one or both of the officers losing control and/or colliding with another vehicle or some object is sufficient to establish that defendant's conduct was a cause that, in natural and continuous sequence, produced [the officer's] death and without which that death would not have occurred. [Citations.]" And in People v. Harris, supra , 52 Cal.App.3d at page 427, the court reasoned, "It was reasonably foreseeable that the officers would continue to chase him as he speeded recklessly and circuitously over public thoroughfares and failed to stop at boulevard stops, thus setting in motion circumstances creating peril to others on the public streets and a high probability that collisions, injuries and deaths would occur in the course of the chase."

Although the analyses in Pike and Harris are couched in terms of foreseeability, the reasoning is predicated upon the logical assumption that the flight of a suspect creates an appreciable probability that the police will chase, and in doing so sometimes be involved in accidents. Where helicopters are involved the probabilities are undoubtedly reduced, but remain appreciable.

[23] Despite Justice Crosby's assertion to the contrary (separate opn. of Crosby, J., post , at p. 1408, fn. 4), I specifically caution against using civil proximate cause analyses in a criminal case. (See fn. 4, ante .)

[24] The defendant's railway attendants accidentally knocked a package of fireworks from a passenger's arms while boarding a train, causing a concussive explosion which overturned scales on the platform which struck the plaintiff.

[25] Justice Crosby does not dispute that such is the case here.

[26] To use his terminology (separate opn. of Moore, J., post , at p. 1398, fn. 1), while it may become usual in the 21st century, it is unusual in the late 20th century. The automobile pursuit cases provide guidance in the analysis, but do not serve as binding precedent because the air crashes are qualitatively different, at least in terms of probability.

[27] His opinion does provide two hypothetical fact situations. (Separate opn. of Crosby, J., post , at p. 1408, fn. 4.) As to the first, more facts are necessary to determine whether the defendant was a substantial factor in the crash. The mere fact he was in an accident would probably be insufficient. As to the second, the same question arises. Further, the defendant would only be convicted if his conduct constituted at least gross negligence vis-a-vis the victim.

[28] See part III, post .

[29] Again, the commentators are in accord. (Perkins & Boyce, supra , at pp. 60, 859, 860 ["grave risk of death"; "strong likelihood"; "obvious likelihood"]; 2 LaFave & Scott, supra , at p. 200 ["very high degree' of risk"].)

[30] The Attorney General argues that the approval of CALJIC Nos. 8.11 and 8.31 in People v. Dellinger, supra , 49 Cal.3d at pages 1221-1222, mandates a contrary result because those instructions do not contain the "high probability" standard. But the focus of the court in Dellinger was only upon the use of "conscious disregard for human life" in place of "wanton disregard for human life." The Supreme Court did not consider the language in the instructions concerning the degree of probability that death will result from the defendant's act. "It is axiomatic that cases are not authority for propositions not considered." (People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7 [82 Cal.Rptr. 724, 462 P.2d 580].)

The string citation of People v. David (1991) 230 Cal.App.3d 1109, 1114 [281 Cal.Rptr.], People v. Murray (1990) 225 Cal.App.3d 734, 745-746 [275 Cal.Rptr. 498], and People v. Butler *(Cal.App.) in Justice Moore's opinion (separate opn. of Moore, J., post , at p. 1405) does not change this fact. None of those cases addressed the "high probability" issue. People v. Cleaves (1991) 229 Cal.App.3d 367 [280 Cal.Rptr. 146] did so, and concluded CALJIC Nos. 8.11 and 8.31 correctly stated the law because "an act for which the natural consequences are dangerous to human life by its nature involves a high probability of death." (Id . at p. 378.) That an act can be dangerous to human life without involving a high probability of death needs no explication. If the Cleaves court meant to say that the term "dangerous to human life" in the instruction presumes a high probability, it deals with an instructional issue not presented here because, as a matter of law, the officers in the helicopter were not exposed to a high probability of death. I hold this opinion not because of any "revulsion for implied malice" (separate opn. of Moore, J., post , at pp. 1405-1406), but because numerous references to a "high probability of death" by our Supreme Court mandate it. *Reporter's Note: Opinion D008448 deleted upon direction of Supreme Court by order dated January 30, 1991.

[31] People v. Dellinger, supra , 49 Cal.3d at pages 1217-1218 added the words "to human life" to the term "the risk involved." Although the words are proper because the risk at issue in a murder case is the risk to human life (see 1 LaFave & Scott, supra , at p. 336), they are superfluous to our analysis.

[32] I assume the "electric piano" was what I would call a player piano. Thus, I am led to believe the defendant did not shoot the piano player.

[33] Put in our terms for proximate cause, it would be a death which was "almost extraordinary."

[34] See Pizano v. Superior Court (1978) 21 Cal.3d 128, 136-138 [145 Cal.Rptr. 524, 577 P.2d 659].

[35] Perkins and Boyce apparently agree with this approach. In speaking of the rigorous standard for implied malice, they describe an act "done with 'knowledge of such circumstances that according to common experience there is a plain and strong likelihood that' a certain type of social harm will ensue." (Perkins & Boyce, supra , at p. 859, fn. omitted, italics added.) By this, I understand them to mean that the defendant must consciously disregard the type of harm which actually ensues. For example, they recognize that "[i]n a case in which it has no bearing upon the issue of proximate cause, foreseeability [of the ensuing harm] may be a determinant of the degree of guilt, or even of the fact of guilt." (Id . at p. 813, fns. omitted.)

[36] At oral argument amicus counsel described a situation which might have qualified. Had Acosta purposely maneuvered the helicopters into tall transmission towers, high wires, or a similar hazard with apparent conscious disregard for the well being of the occupants, malice could be inferred.

[37] Justice Crosby also claims that our resolution of the malice issue "appears entirely inconsistent with the conclusion reached in the proximate cause discussion." (Separate opn. of Crosby, J., post , at pp. 1408-1409.) Not so. A nonextraordinary result for proximate cause purposes does not require a "high risk" victim; implied malice does. Similarly, Justice Crosby's concern that the victim be in a zone of danger (Palsgraf v. Long Island R. Co., supra , 248 N.Y. 339 [162 N.E. 99, 100]) properly belongs in an analysis of gross negligence as it relates to involuntary manslaughter. Because Acosta was convicted of second degree murder, I have not considered that question.

[38] Acosta's argument that the court erred in instructing on malice is moot. However, by our foregoing analysis, the court should have informed the jury that a high probability of death was required. (People v. Watson, supra , 30 Cal.3d at p. 300.) This omission would provide an independent ground for reversal.

[39] This instruction read: "To constitute murder or involuntary manslaughter or vehicular manslaughter, there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death. [P] A proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred. [P] There may be more than one proximate cause of a death. When the conduct of two or more persons contributes concurrently as proximate causes of a death, the conduct of each of said persons is a proximate cause of the death if that conduct was a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of death and acted with another cause to produce the death. [P] If you find that the defendant's conduct was a proximate cause of a death to another person, then it is no defense that the conduct of some other person, even the deceased person, contributed to the death except in the event that you find that conduct to be unforeseeable."

[40] The first instruction read: "An intervening cause which breaks the chain of causation from the original act is itself regarded as the proximate cause of the death and relieves the original actor of criminal liability. [P] The test of whether an independent intervening act, which operated to produce the deaths, breaks the chain of causation is the foreseeability of that act. [P] An act is not foreseeable and thus is a superseding cause of the death if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen."

The second instruction advised: "If you find that the operation of either or both of the helicopters was so highly unusual or extraordinary as to be a superseding cause of death not reasonably foreseeable, then you must find defendant is not the proximate cause of the deaths and acquit him . . . ."

The prosecution's instruction stated: "A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of the defendant's original act, the intervening act is dependent and not a superseding cause and will not relieve defendant of liability. The consequence need not have been a strong probability, a possible consequence which might reasonably have been contemplated is enough. The precise consequence need not have been foreseen. It is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act. An intervening act may be so disconnected and unforeseeable as to be a superseding cause, that in such a case the defendant's act will be a remote and not a proximate cause. It is only an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause."

[43] Of course, reversal of the murder counts for insufficient evidence precludes retrial on those charges. Acosta's claim of a cruel and unusual sentence is therefore rendered moot.

[1] While my colleague is willing to embrace the era of the automobile in the 20th century by citation to a 1928 opinion of Justice Cardozo, he is not ready to leave and enter the 21st century.

[2] To the extent my colleagues cannot agree, I am forced to agree that defendant may be retried.

[1] If despicable behavior alone were enough to affix criminal responsibility on a defendant for any remote consequence, no matter how unexpected, that would constitute the wholesale adoption of the concept of strict liability into the law of crimes. Many might view that as desirable, but that is not the law at present.

[2] (Conc. and dis. opn.) In 1928 Cardozo was not concerned with helicopter crashes or heart attacks visiting excited dispatchers. (See lead opn., ante , pp. 1385-1386, fn. 14.) But he did recognize that a wrongdoer's responsibility for an unintended injury has a limit, as the balance of the quotation reveals.

[3] Occasionally, screen protagonists, such as James Bond, do usually deliberately fell pursuing helicopters from the ground by various means. That is not the real world, thankfully; and this is not such a case in any event.

[4] A slippery concept at best, proximate cause is ultimately a judicial application of educated common sense to a given set of facts. Because the tort and criminal formulations of the term are interchangeable, if the lead opinion is correct, the driver who causes a freeway accident could be liable in tort for the crash of helicopters broadcasting traffic advisories at the scene. Such a motorist should have every reason to anticipate the arrival of aerial surveillance, but it is inconceivable that a court would find him liable for the negligence of a pilot under such circumstances. The lead opinion suggests there may be different factors involved in tort and criminal analyses of proximate cause. (Lead opn., ante , p. 1381, fn. 4.) Maybe so, but the law of crimes virtually always employs more conservative standards in fixing responsibility than does the civil law. Does the lead opinion mean to imply that this defendant is criminally, but not civilly, liable for this collision? If anything, I would think the opposite would be the case.

In some remote parts of our state, traffic laws are enforced from the air. Signs along the highway warn of this. Can an ordinary speeder be guilty of manslaughter when a police aircraft in the process of clocking him crashes because of the negligence of some third party? The theory of the lead opinion would seemingly support such a prosecution. 

[5] The lead opinion makes the tautological accusation that I cite no case for this conclusion. (Lead opn., ante , p. 1391.) That, of course, is the point. If a similar case did exist, however it was decided, it would tend to undermine, not support, my view that this was a highly extraordinary accident. But the reverse is also true. My colleagues both correctly note that the first defendant to cause harm in a particular way should not necessarily be free from prosecution; but to apply that particular rule to these unusual facts is to jettison the exception for highly extraordinary events while pretending it still exists.

[6] I join in the unpublished portions of the lead opinion.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, for the people.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, and Errol Shifman, Assistant Prosecuting Attorney, for the people.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.

Robert A. Sedler, Paul J. Denenfeld, Elizabeth Gleicher, and Eugene Feingold, for the plaintiffs in Hobbins.

Fieger, Fieger & Schwartz, P.C. (by Geoffrey N. Fieger, Pamela A. Hamway, and Michael Alan Schwartz), for the defendant.

[443] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Deborah Anne Devine, Assistant Attorney General In Charge, and Thomas C. Nelson, Assistant Attorney General, for the defendant in Hobbins.

Amici Curiae:

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, and Timothy A. Baughman, Chief, Research, Training and Appeals, for the Oakland County Prosecutor's Office.

Steven A. Transeth for Paul C. Hillegonds, Co-Speaker of the Michigan House of Representatives, Curtis Hertel, Co-Speaker of the Michigan House of Representatives, Dick Posthumus, Majority Leader of the Michigan Senate, and Arthur J. Miller, Jr., Minority Leader of the Michigan Senate.

Bodman, Longley & Dahling (by Joseph A. Sullivan and Martha B. Goodloe) for the Michigan Catholic Conference.

Joseph P. Zanglin, Paul Benjamin Linton, and Clarke D. Forsythe for Michigan State Senators and Representatives.

James W. Kraayeveld, Local Counsel, and James Bopp, Jr., Thomas J. Marzen, Daniel Avila, John Altomare, and Jane E.T. Brockmann, Co-Counsel, for the Michigan Handicapper Caucus and the Ethics and Advocacy Task Force of the Nursing Home Action Group.

Charles Kleinbrook, P.C. (by Charles Kleinbrook), and Bopp, Coleson & Bostrom (by James [444] Bopp, Jr., and Richard E. Coleson) for the National Right to Life Committee, Inc.

Curcio & Martell (by Elizabeth A. Curcio and Marie E. Martell) for Right to Life of Michigan.

Butler & Modelski, P.C. (by Michael J. Modelski), and Wesley J. Smith, for International Anti-Euthanasia Task Force.

Honigman, Miller, Schwartz & Cohn (by John D. Pirich and Timothy Sawyer Knowlton), Kirk B. Johnson, David Orentlicher, Michael L. Ile, and Sidley & Austin (by Jack R. Bierig and Paul E. Kalb), for American Medical Association.

Camille Abood and J. Thomas Smith, Jr., for America 21, Family Values for the 21st Century.

MEMORANDUM OPINION.

These cases raise three issues with regard to the state's imposition of criminal responsibility on persons who assist others in committing suicide. Two questions are presented by the appeals in Docket Nos. 99591, 99752, 99758, and 99759: (1) whether the Michigan assisted suicide statute, MCL 752.1027; MSA 28.547(127), was enacted in violation of Const 1963, art 4, § 24; (2) whether the criminal provisions of MCL 752.1027; MSA 28.547(127) violate the United States Constitution. In Docket No. 99674, a case predating the assisted suicide statute, the question presented is: (3) whether the circuit court erred in quashing the information charging the defendant with murder.

A majority of the justices is of the opinion that:

1) The assisted suicide provisions of the statute were validly enacted and do not violate the Title-Object Clause of the Michigan Constitution. [445] (CAVANAGH, C.J., and LEVIN, BRICKLEY, BOYLE, RILEY, GRIFFIN, and MALLETT, JJ.)

2) The United States Constitution does not prohibit a state from imposing criminal penalties on one who assists another in committing suicide. (CAVANAGH, C.J., and BRICKLEY, BOYLE, RILEY, and GRIFFIN, JJ.)

3) In the murder case, People v Roberts, 211 Mich 187; 178 NW 690 (1920), is overruled to the extent that it can be read to support the view that the common-law definition of murder encompasses the act of intentionally providing the means by which a person commits suicide. Only where there is probable cause to believe that death was the direct and natural result of a defendant's act can the defendant be properly bound over on a charge of murder. Where a defendant merely is involved in the events leading up to the death, such as providing the means, the proper charge is assisting in a suicide, which may be prosecuted as a common-law felony under the saving clause, MCL 750.505; MSA 28.773, in the absence of a statute that specifically prohibits assisting in a suicide. (CAVANAGH, C.J., and LEVIN, BRICKLEY, GRIFFIN, and MALLETT, JJ.)

4) The motion to quash must be reconsidered by the circuit court to determine whether the evidence produced at the preliminary examination was sufficient to bind the defendant over for trial. (CAVANAGH, C.J., and BRICKLEY, GRIFFIN, and MALLETT, JJ.)

We reverse the judgment of the Court of Appeals in People v Kevorkian, Docket No. 99591, and People v Kevorkian, Docket No. 99759, and remand the cases to the respective circuit courts for further proceedings. In Hobbins v Attorney General, Docket Nos. 99752 and 99758, we reverse the judgment of the Court of Appeals with regard [446] to the claimed violation of Const 1963, art 4, § 24, and affirm in all other respects. Finally, in People v Kevorkian, Docket No. 99674, we vacate the judgment of the Court of Appeals, and remand the case to the circuit court for further proceedings.

This memorandum opinion is signed by the seven justices. There are separate concurring and dissenting opinions. However, at least four justices concur in every holding, statement, and disposition of this memorandum opinion.

CAVANAGH, C.J., and BRICKLEY and GRIFFIN, JJ. These cases raise three issues with regard to the state's imposition of criminal responsibility on persons who assist others in committing suicide. Two questions are presented by the appeals in Docket Nos. 99591, 99752, 99758, and 99759: (1) Whether the Michigan assisted suicide statute, MCL 752.1027; MSA 28.547(127), was enacted in violation of Const 1963, art 4, § 24. (2) Whether the criminal provisions of MCL 752.1027; MSA 28.547(127) violate the United States Constitution. In Docket No. 99674, a case predating the assisted suicide statute, the question presented is: (3) Whether the circuit court erred in quashing the information charging the defendant with murder.

We conclude: (1) the assisted suicide provisions of the statute were validly enacted and do not violate the Title-Object Clause of the Michigan Constitution; (2) the United States Constitution does not prohibit a state from imposing criminal penalties on one who assists another in committing suicide; (3) in the murder case, the motion to quash must be reconsidered by the circuit court to determine if the evidence produced at the preliminary examination was sufficient to bind the defendant over for trial. [447]

I

HOBBINS v ATTORNEY GENERAL

(DOCKET NOS. 99752, 99758)

THE "DECLARATORY JUDGMENT ACTION"

Shortly after the Legislature enacted the assisted suicide statute, a group of plaintiffs, two of whom are alleged to be suffering from terminal cancer, a friend of one of them, and seven medical care professionals, brought an action in Wayne Circuit Court, seeking a declaration that the statute was unconstitutional. The parties moved for summary judgment and the plaintiffs sought a preliminary injunction against enforcement of the statute. The circuit court found the statute to be unconstitutional.^[1] First, it concluded that there were two violations of Const 1963, art 4, § 24: the statute did not have a single object, and there was a change in the purpose of the bill during its passage through the Legislature. Second, the court found a due process right to commit suicide. However, it declined to issue a preliminary injunction, concluding that hearings would be needed to determine whether the statute placed an undue burden on that right. The Attorney General filed a claim of appeal in the Court of Appeals.

PEOPLE v KEVORKIAN

(DOCKET NO. 99591)

THE "WAYNE COUNTY ASSISTED SUICIDE CASE"

Also after the enactment of the assisted suicide statute, defendant Kevorkian is alleged to have assisted in the death of Donald O'Keefe. The defendant [448] was charged under the statute and bound over after preliminary examination. He moved to dismiss, and the circuit court granted the motion. The court rejected the art 4, § 24 challenges to the statute, but found a due process interest in the decision to end one's life, and that the law impermissibly burdened that interest.

The court held an evidentiary hearing to determine if the facts satisfied the four-part test that it had set forth in its opinion.^[2] Following the hearing, the court issued an order concluding that the facts of the case met the standard and dismissed the charge. The prosecutor appealed to the Court of Appeals.

PEOPLE v KEVORKIAN

(DOCKET NO. 99759)

THE "OAKLAND COUNTY ASSISTED SUICIDE CASE"

Defendant Kevorkian was charged in two separate files with assisting in the suicides of Merion Frederick and Ali Khalili. The defendant was bound over after a preliminary examination in one case and waived examination in the other. The circuit court granted the defendant's motion to dismiss. The court discussed the potential privacy and liberty interests in ending one's life, concluding that a person does have the right to commit suicide. However, it further concluded that defendant [449] Kevorkian lacked standing to challenge the statute.^[3] The court also found that the statute was unconstitutional because it had more than one object and because its purpose was changed during its passage through the Legislature. The prosecuting attorney appealed.

PEOPLE v KEVORKIAN

(DOCKET NO. 99674)

THE "OAKLAND COUNTY MURDER CASE"

Before the statute was enacted, defendant Kevorkian allegedly assisted in the deaths of Sherry Miller and Marjorie Wantz on October 23, 1991. He was indicted by a citizens' grand jury on two counts of murder.^[4] After a preliminary examination, the defendant was bound over for trial.^[5] In the circuit court, the defendant moved to dismiss, and the circuit judge granted the motion, concluding that assisting in suicide does not fall within the crime of murder. The prosecutor appealed.

II

The Court of Appeals issued its decisions in two sets of opinions on May 10, 1994. One decision dealt with the cases involving the assisted suicide statute.^[6] The majority concluded that the assisted suicide statute was unconstitutional because the act had more than one object, in violation of art 4, § 24. Though recognizing that it arguably was not [450] necessary to deal with the remaining issue, the majority went on to consider whether the statute violated the United States Constitution. The majority concluded that there was no violation, and that the state was free to make it a criminal offense to assist another in committing suicide.^[7]

The appeal regarding the murder case was decided separately.^[8] The majority^[9] concluded that the circuit court erred in quashing the information.

III

The prosecuting authorities in each of the assisted suicide cases appealed the conclusion that the assisted suicide statute was enacted in violation of Const 1963, art 4, § 24. Defendant Kevorkian filed a cross appeal with regard to the United States constitutional issue in the Wayne County assisted suicide case, and the plaintiffs in the declaratory judgment action filed their own application for leave to appeal on that issue. In the murder case, defendant Kevorkian filed an application for leave to appeal. On June 6, 1994, we granted the applications, 445 Mich 920, and the cases were argued on October 4, 1994.

IV

A

During 1991, several bills were introduced in the [451] Legislature regarding the subject of assisting in suicide. The bill that ultimately became 1992 PA 270 was introduced on March 7, 1991, as HB 4501. As originally introduced, it would have created the Michigan Commission on Death and Dying that was to study "voluntary self-termination of life" and related subjects and report its recommendations to the Legislature.^[10] It was referred to the Judiciary Committee, and there were public hearings in December 1991. The committee reported a substitute bill to the House on November 12, 1992.

On November 24, the House amended the substitute bill by adding a section that would make it a crime to assist another in committing suicide,^[11] and the bill passed the House on that date.^[12] The Senate passed the bill on December 3, 1992, and it was signed by the Governor on December 15. 1992 PA 270. It was to be effective March 31, 1993, ninety days after the legislative session, as provided by Const 1963, art 4, § 27.

[452] On January 26, 1993, SB 211 was introduced to amend § 7 of 1992 PA 270, which contained the criminal penalties.^[13] It passed the Senate on February 11. On February 25, the House approved a substitute, which, among other things, provided that the act, including both the commission and criminal provisions, would be effective on February 25, 1993. The Senate concurred in the substitute, and the Governor signed the bill that same day. 1993 PA 3.^[14]

Each house had voted to give the act immediate effect, and thus the act was effective on February 25, 1993. The enrolled bill^[15] sets forth [453] the full text of each section of the act as required by Const 1963, art 4, § 25. Pursuant to the statute, the Commission on Death and Dying was constituted and prepared its final report to the Legislature.

B

Const 1963, art 4, § 24 provides as follows:

No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title.^[16]

Three kinds of challenges may be brought against statutes on the basis of Const 1963, art 4, § 24: (1) a "title-body" challenge, (2) a multiple-object challenge, and (3) a change of purpose challenge. No "title-body" challenge, claiming that the title of the act does not adequately express the content of the law, is before us. However, the other two bases for contesting the statute are presented.

The circuit court in both the declaratory judgment action and the Oakland County assisted suicide case held that the statute had more than one object and that the purpose of HB 4501 was changed during its passage through the Legislature.

The Court of Appeals majority reached only the [454] multiple-object challenge and affirmed the circuit court decisions.^[17]

We would hold that both art 4, § 24 challenges of the statute are without merit, and reverse.

1

MULTIPLE-OBJECT CHALLENGE

The purpose of the constitutional provision now found in art 4, § 24 was stated by Justice COOLEY fifteen years after such language was included in the Constitution of 1850:

The history and purpose of this constitutional provision are too well understood to require any elucidation at our hands. The practice of bringing together into one bill subjects diverse in their nature, and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state. It was scarcely more so, however, than another practice, also intended to be remedied by this provision, by which, through dexterous management, clauses were inserted in bills of which the titles gave no intimation, and their passage secured through legislative bodies whose members were not generally aware of their intention and effect. There was no design by this clause to embarrass legislation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number; but the framers of the constitution meant to put an end to legislation of the vicious character referred to, which was little less than a fraud upon the public, and to require that in every case the proposed measure should stand upon its own merits, and that the legislature should be fairly notified of [455] its design when required to pass upon it. [People ex rel Drake v Mahaney, 13 Mich 481, 494-495 (1865).]

The provision is not meant to be applied restrictively. Kuhn v Treasury Dep't, 384 Mich 378, 387-388; 183 NW2d 796 (1971). See also Local No 644 v Oakwood Hosp Corp, 367 Mich 79, 91; 116 NW2d 314 (1962):

Numerous cases have held that the "object" of a statute is the general purpose or aim of the enactment. The legislature may empower a body created by it to do everything requisite, necessary, or expedient to carry out the principal objective to be attained. Legislation, if it has a primary object, is not invalid because it embraces more than 1 means of attaining its primary object. In re Brewster Street Housing Site, 291 Mich 313 [289 NW 493 (1939)]. 

With all but the simplest of statutes, it would be possible to select one section, describe the "object" of that section, and be able to reason, as the Court of Appeals majority did in this case, that the remaining sections have different objects. The flaw in this approach is in defining the object of 1992 PA 270 as being limited to the content of the bill as originally introduced. The Court of Appeals said:

The original purpose of HB 4501, as expressed in both the title and body of the bill, was to create a new public act to study certain issues related to death and dying. This bill had no regulatory authority. When HB 4501 was amended to add the substance of SB 32, the additional provisions had another and different objective — to amend the Penal Code to create the crime of criminal assistance to suicide. [205 Mich App 194, 201-202; 518 NW2d 487 (1994).]

[456] In so reasoning, the Court of Appeals majority confused the analysis to be used in multiple-object cases with that appropriate in assessing a challenge based on a change of purpose theory. The object of the legislation must be determined by examining the law as enacted, not as originally introduced.

We would find the instant statute clearly to embrace only one object.^[18] While the cases cited by the parties involving multiple-object challenges concern quite different statutes, an examination of those cases that have found multiple-object violations^[19] and those that have not^[20] demonstrates that [457] the instant case falls squarely within the category of permissible joining of statutory provisions.

The Court of Appeals majority sought to distinguish People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980), on which the prosecutors relied, on the ground that the statute in question in that case (the Public Health Code)^[21] involved a legislative enactment constituting a "code."^[22] However, [458] there is no "code exception" in art 4, § 24. Rather, the cases upholding codes against multiple-object challenges are at most an extension of the liberality with which such challenges are reviewed.

The Court of Appeals majority suggested that the Legislature could have included the provisions regarding the commission and the criminal penalties in the same bill if it had used a more general title:

Had the Legislature intended to codify or regulate the general "subject" of assisted suicide, it could have notified the public of this intention by declaring a single broad purpose and by joining the object contained in HB 4501 with the object contained in SB 32 together in one bill. This the Legislature did not do. This failure resulted in the body of the act containing two distinct objects. The fact that the title was amended to reflect the addition of § 7 does not cure the constitutional infirmity. The one-object provision may not be circumvented by creating a title that includes different legislative objects. Hildebrand v Revco Discount Drug Centers, 137 Mich App 1, 11; 357 NW2d 778 (1984). [205 Mich App 202-203.]

This emphasis on the title is misplaced. It cannot be said that a statute has two objects if its title specifically describes its content, but only one if the title is general. Insofar as one of the purposes of the Title-Object Clause is to provide notice of the content of a bill to the Legislature and the public, a more specific title better achieves that purpose, particularly regarding a fairly short bill like the one in this case. Elsewhere in its opinion, [459] the Court of Appeals majority itself recognized that one looks to the body of the act, not the title, to determine whether it has a single object:

While the object must be expressed in the title, the body of the law must be examined to determine whether it embraces more than one object. Kent Co ex rel Bd of Supervisors of Kent Co v Reed, 243 Mich 120, 122; 219 NW 656 (1928). [205 Mich App 199.]

The Hobbins plaintiffs and defendant Kevorkian also argue that there was a multiple-object violation because the provisions could have been enacted in separate bills. They rely on Advisory Opinion on Constitutionality of 1975 PA 227 (Question 1), 396 Mich 123, 129; 240 NW2d 193 (1976):

"The provisions in these two sections might have been enacted in separate laws without either of them in any way referring to or affecting the other." [Quoting Kent Co ex rel Bd of Supervisors v Reed, supra at 122.]

This principle is unsound. There is virtually no statute that could not be subdivided and enacted as several bills. It is precisely that kind of "multiplying" of legislation that we seek to avoid with the liberal construction given to art 4, § 24.^[23]

Accordingly, we would hold that the assisted suicide statute embraces only one object and thus was validly enacted. [460]

2

CHANGE IN PURPOSE CHALLENGE^[24]

The Hobbins plaintiffs also challenge the statute on the ground that its purpose was changed during its passage through the Legislature. They point to Anderson v Oakland Co Clerk, 419 Mich 313, 329; 353 NW2d 448 (1984), as establishing that the objectives of that provision are to "preclude last-minute, hasty legislation and to provide notice to the public of legislation under consideration...." The provision is integrally related to the "five-day rule" of art 4, § 26, which states that no bill can be passed until it has been printed or reproduced and in the possession of each house for at least five days. They maintain that those principles have been violated in this statute. After the bill was introduced, the Legislature amended HB 4501 to add a provision criminalizing assisted suicide. The Hobbins plaintiffs say that this amendment dramatically changed the purpose of the original bill, which was to create a study commission. Thus, it is argued, the Legislature was able to enact a law making assisted suicide a criminal offense without giving the people an opportunity to be heard on this highly charged and emotional issue. Looking at the legislative calendar for the day on which the amendment was made, the Hobbins plaintiffs find reference only to an act to create the Commission on Death and Dying.

In response to the prosecuting authorities' argument that the later enactment of 1993 PA 3 cured the defect, the plaintiffs maintain that the argument is "structurally unsound" and misstates the [461] effect of the reenactment of an amended law. They contend that the constitutional violation was complete when 1992 PA 270 was enacted, and that 1993 PA 3 merely amended the former act in minor respects and gave it immediate effect.

The argument by the plaintiffs fails to take into account that the criminal penalties for assistance to suicide were an interim measure tied to the Legislature's continuing consideration of issues related to death and dying, including those to be covered in the report of the commission. Thus, the penalties can be viewed as simply providing a stable environment while the Commission on Death and Dying, the Legislature, and the citizenry studied these questions further.

Moreover, cases interpreting the change of purpose clause indicate that the test for determining if an amendment or substitute changes a purpose of the bill is whether the subject matter of the amendment or substitute is germane to the original purpose.^[25] The test of germaneness is much like the standard for determining whether a bill is limited to a single object. As we held above, the creation of the commission and the provision of criminal penalties were appropriately placed in the same bill.

We also agree with the prosecuting authorities that any problems with the enactment of 1992 PA 270 were eliminated with the enactment of 1993 PA 3. The plaintiffs do not claim that the later act is independently subject to attack on a change of purpose ground. It is a basic principle of statutory construction that an amending statute replaces the former provisions. As we explained in Lahti v [462] Fosterling, 357 Mich 578, 587-588; 99 NW2d 490 (1959):

This Court in People v Lowell, 250 Mich 349, 354-356 [230 NW 202] (1930), said:

"An amendatory act has a repealing force, by the mechanics of legislation, different from that of an independent statute. Repugnancy is not the essential element of implied repeal of specifically amended sections. The rule is:

"`Where a section of a statute is amended, the original ceases to exist, and the section as amended supersedes it and becomes a part of the statute for all intents and purposes as if the amendments had always been there.' 25 RCL [Statutes § 159], p 907. .. .

"Nevertheless, the old section is deemed stricken from the law, and the provisions carried over have their force from the new act, not from the former. 1 Lewis, Sutherland Statutory Construction (2d ed), § 237.

"It is plain from the authorities in this State and elsewhere that the effect of an act amending a specific section of a former act, in the absence of a saving clause, is to strike the former section from the law, obliterate it entirely and substitute the new section in its place. This effect is not an arbitrary rule adopted by the courts. It is the natural and logical effect of an amendment `to read as follows.' It accomplishes precisely what the words import. Any other construction would do violence to the plain language of the legislature."

1993 PA 3 amended each section of 1992 PA 270, and the entire text was reprinted and reenacted. The enacting clause stated that those sections were "amended to read as follows...."

Further, it is clear that an amending statute can remedy a constitutional defect in the original act. As noted in 1A Singer, Sutherland Statutory Construction (5th ed), § 22.04, p 182, "[s]ome courts [463] have indicated that an unconstitutional act is legally nonexistent and cannot be given effect by an attempt to amend it." However, as the treatise goes on to explain:

A majority of courts seem to have rejected the theory that an unconstitutional act has no existence, at least for the purpose of amendment. The unconstitutional act physically exists in the official statutes of the state and is available for reference, and as it is only unenforceable, the purported amendment is given effect....

This escape from the legal fiction that an unconstitutional act does not exist is sound. That fiction serves only as a convenient method of stating that an unconstitutional act gives no rights or imposes no duties.... Amendment offers a convenient method of curing a defect in an unconstitutional act. [Id. at 183.]

This principle has been followed in Michigan cases,^[26] and is fully applicable here. The statute under which defendant Kevorkian has been charged is MCL 752.1027; MSA 28.547(127), as amended by 1993 PA 3, which was not enacted in violation of the change of purpose clause.

Accordingly, we would hold that the assisted suicide provisions of MCL 752.1027; MSA 28.547(127) are not void by reason of violation of Const 1963, art 4, § 24.

V

A

Having found that Michigan's assisted suicide [464] statute does not violate Const 1963, art 4, § 24, we now address whether the statute runs afoul of the United States Constitution. In its opinion of May 10, 1994, the Court of Appeals rejected this argument. So do we.

The Due Process Clause of US Const, Am XIV commands the states not to "deprive any person of life, liberty, or property, without due process of law...." Thus, the threshold question in this case is whether the clause encompasses a fundamental right to commit suicide and, if so, whether it includes a right to assistance.

B

Those who assert that there is such a right rely heavily on decisions of the United States Supreme Court in abortion and so-called "right to die" cases. Focusing especially on Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833; 112 S Ct 2791; 120 L Ed 2d 674 (1992), and Cruzan v Director, Missouri Dep't of Health, 497 US 261; 110 S Ct 2841; 111 L Ed 2d 224 (1990), these advocates argue that the right to end one's own life is a fundamental liberty interest, grounded in the notion of personal autonomy and springing from common-law concepts of bodily integrity and informed consent. They further contend that an integral part of this protected interest is the right to assistance, hence the term "assisted suicide."^[27]

[465] We do not discern in Cruzan and its historic roots an indication that the federal constitution protects a right more expansive than the right to refuse to begin or to continue life-sustaining medical treatment. Neither do we find in Casey or in the precedent from which it evolved an intent to expand the liberty interests identified by the Court in such a manner.

C

Cruzan was the first case to present to the United States Supreme Court the issue whether the federal constitution grants a so-called "right to die."^[28] 497 US 277. The Court was asked in Cruzan to decide the validity of a state statute that prohibited a Missouri couple from halting the artificial nutrition and hydration of their brain-damaged daughter, absent clear and convincing evidence of her wishes.

In upholding the Missouri statute, the majority observed that the constitutional right of a competent person to refuse unwanted medical treatment could be inferred from prior Supreme Court decisions.^[29] 497 US 278. For purposes of analysis, the Court "assumed" that there also was a constitutional [466] right to halt lifesaving hydration and nutrition. However, the Court emphasized that such a liberty interest would have to be balanced against relevant state interests. The interests advanced in Cruzan — the preservation of life^[30] and the safe-guarding of an incompetent person's wishes against potential abuses — were found sufficient to sustain the evidentiary requirement.^[31]

Casey was decided two years after Cruzan. There, the Court was asked to decide the validity of a Pennsylvania abortion statute that included an "informed consent" requirement, a waiting period, and a "spousal notification" provision. In upholding all but the notification provision,^[32] the [467] Court reaffirmed the essential tenet of Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), reh den 410 US 959 (1973), which includes recognition of a woman's right under the Due Process Clause to terminate a pregnancy in its early stages, without undue interference from the state. That right is protected by "a promise of the Constitution that there is a realm of personal liberty which the government may not enter." 120 L Ed 2d 695.

The Casey Court explained that Roe "stands at the intersection of two lines of decisions...." 120 L Ed 2d 701. Although this holding of Roe was grounded in a liberty interest relating to intimate relationships, the family, and childbearing, Roe also may be seen as a rule "of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection." 120 L Ed 2d 702. The choice of doctrinal category made no difference to the result in Casey, the Court said. It added that Roe also could be classified as sui generis. Id. at 701-702.

Drawing from Cruzan and Casey, the Hobbins plaintiffs^[33] and defendant Kevorkian advance several theories why this Court should find that there [468] is a protected liberty interest in assisted suicide, at least with regard to the terminally ill.^[34] All the theories, of course, assume a fundamental liberty interest in suicide itself.^[35]

The parties contend that the right to assistance in ending one's life is an integral part of "personal autonomy."^[36] They emphasize that the Casey Court rejected a "formula" approach to deciding which rights are protected by the Fourteenth Amendment, and also the notion that new rights cannot emerge. Instead, the Court described the characteristics that are shared by protected "liberty" interests:

These matters [marriage, procreation, contraception, family relationships, child rearing, and education], involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are [469] central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. [120 L Ed 2d 698.]

The proponents of assisted suicide further argue that the right to commit suicide is analogous to the right to refuse unwanted medical treatment, to discontinue life support, to use contraception, and to choose abortion. They submit that the decision to end one's life is the ultimate right of self-determination, and that the state cannot abridge the right unless it can articulate a compelling interest.^[37]

The advocates of assisted suicide ask us to adopt the reasoning of a recent federal decision that invalidated the State of Washington's criminal prohibition against assisted suicide. The court held in Compassion in Dying v Washington, 850 F Supp 1454, 1461 (WD Wash, 1994),^[38] that the right of a terminally ill person to the assistance of a physician in committing suicide is analogous to the right of abortion because both fall within the "`realm of personal liberty which the government may not enter.'"^[39]

[470] The federal court found that the rationale in Casey was "almost prescriptive" of the right to end one's life. The court held that, under Casey, the state cannot proscribe assisted suicide if such a ban would unduly burden the right to commit suicide, i.e., if the purpose of the ban is to place a substantial obstacle in the path of the person seeking to exercise the right.

The federal court also found that the right of a terminally ill person to commit suicide with assistance does not differ in a constitutional sense from the right recognized in Cruzan to refuse life-sustaining medical treatment.^[40] The essential premise of the court's holding was that, in each instance, the liberty interest is "the freedom to make choices according to one's individual conscience about those matters which are essential to personal autonomy and basic human dignity." Id. at 1461.^[41]

We disagree with the federal court that either Cruzan or Casey preordains that the Supreme Court would find that any persons, including the terminally ill, have a liberty interest in suicide that is protected by the Fourteenth Amendment. Those who assert such a right misapprehend the nature of the holdings in those cases. [471]

D

In Cruzan, the Court was able to "assume" a protected liberty interest in the withdrawal of life-sustaining medical treatment because it was able to distinguish between acts that artificially sustain life and acts that artificially curtail life. Although some suggest that this is a distinction without constitutional significance — a meaningless exercise in semantic gymnastics — the Cruzan majority disagreed^[42] and so do we.

Indeed, the notion that there is a difference between action and inaction is not unfamiliar to the law. For example, the distinction between "misfeasance" and "nonfeasance" (the distinction between active misconduct and passive inaction) is deeply rooted in the law of negligence. The reason for the distinction is said to lie in the fact that a defendant creates a new risk of harm by misfeasance, but merely fails to benefit another by nonfeasance. As Dean Prosser explains, the duty to do no wrong is a legal duty, while the duty to protect against wrong is, for the most part, a moral obligation. Prosser & Keeton, Torts (5th ed), § 56, pp 373-374.^[43]

Similarly, whereas suicide involves an affirmative act to end a life, the refusal or cessation of [472] life-sustaining medical treatment simply permits life to run its course, unencumbered by contrived intervention. Put another way, suicide frustrates the natural course by introducing an outside agent to accelerate death, whereas the refusal or withdrawal of life-sustaining medical treatment allows nature to proceed, i.e., death occurs because of the underlying condition.^[44]

The distinction between the withdrawal of life-sustaining medical treatment and suicide is recognized in the Guidelines for State Court Decision Making In Life-Sustaining Medical Treatment, National Center for State Courts (2d ed), pp 143-145 (1992). The guidelines include the following:

There are significant moral and legal distinctions between letting die (including the use of medications to relieve suffering during the dying process) and killing (assisted suicide/euthanasia). In letting die, the cause of death is seen as the underlying disease process or trauma. In assisted suicide/euthanasia, the cause of death is seen as the inherently lethal action itself.

We agree that persons who opt to discontinue life-sustaining medical treatment are not, in effect, committing suicide. There is a difference between choosing a natural death summoned by an uninvited illness or calamity, and deliberately seeking [473] to terminate one's life by resorting to death-inducing measures unrelated to the natural process of dying. McKay v Bergstedt, 106 Nev 808, 820; 801 P2d 617 (1990).

In affirming a lower court decision to discontinue artificial sustenance for a profoundly retarded woman who was in a persistent vegetative state, the Supreme Judicial Court of Massachusetts similarly emphasized the "well-settled" principle that withdrawing or refusing life-sustaining medical treatment is not equivalent to attempting suicide. Guardianship of Jane Doe, 411 Mass 512, 521; 583 NE2d 1263 (1992), cert den sub nom Doe v Gross, 503 US 950 (1992). The vigorous dissents in Doe were not offered in support of a broader right to die, but rather in recognition of the state's paramount interest in protecting life.^[45]

[474] In its first case involving the cessation of life-sustaining medical treatment, the Kentucky Supreme Court found that withdrawal of nutrition and hydration from a person in a persistent vegetative state, and with irreversible brain damage, fits the medical definition of "permit[ting] the natural process of dying." DeGrella v Elston, 858 SW2d 698, 707 (Ky, 1993). The court cautioned that it was not engaging in "an objective inquiry into the quality of life, but a subjective inquiry into whether the patient wishes the continuation of medical procedures to interdict `the natural process of dying.'"

At the point where the withdrawal of life-prolonging medical treatment becomes solely another person's decision about the patient's quality of life, the individual's "inalienable right to life," as so declared in the United States Declaration of Independence and protected by Section One (1) of our Kentucky Constitution, outweighs any consideration of the quality of the life, or the value of the life, at stake. [Id. at 702.]

These and other recent decisions of the highest courts of other states bolster our conclusion that Cruzan does not portend that the United States Supreme Court would find a fundamental liberty interest in suicide, let alone assisted suicide, that is protected by the Due Process Clause of the Fourteenth Amendment.

E

1

Neither does Casey provide support for the position [475] that the Due Process Clause encompasses a fundamental right to commit suicide. In Casey, the Court was not directly concerned with the establishment of a new right, but rather with whether the Court should retreat from the right previously recognized in Roe v Wade. In declining to overrule Roe, and relying heavily on the doctrine of stare decisis, the Court emphasized that abortion cases are unique. 120 L Ed 2d 698.

Although the Court in Casey was not called upon to determine the merits of a newly asserted due process right, it is well settled that the Due Process Clause shelters both procedural and substantive rights. Casey, 120 L Ed 2d 695. The latter includes those rights that have been selectively incorporated from the Bill of Rights, and those that have been found to be "fundamental."

The state argues that in determining those fundamental rights not expressly identified in, but nonetheless protected by, the Due Process Clause, the analysis must be guided by a search for whether the asserted right is implicit in the concept of ordered liberty or deeply rooted in our nation's history and traditions. See Palko v Connecticut, 302 US 319, 325-326; 58 S Ct 149; 82 L Ed 288 (1937), and Snyder v Massachusetts, 291 US 97, 105; 54 S Ct 330; 78 L Ed 674 (1934).^[46]

Those who urge this Court to find a fundamental liberty interest in suicide under the Due Process Clause challenge the traditional analysis, arguing that the United States Supreme Court articulated in Casey a new, broader inquiry to be employed in the adjudication of substantive due process claims. They submit that even if such a right cannot be inferred from Casey, it nonetheless exists as a [476] rational extension of those liberty interests previously recognized under a principled application of the proper test for determining whether an asserted right is protected by the Due Process Clause.^[47]

We acknowledge that the United States Supreme Court said in Casey that courts are to exercise reasoned judgment in assessing claims of substantive due process, and that the analysis is "not susceptible of expression as a simple rule." 120 L Ed 2d 697. However, we need not resolve the debate over whether the Court established a new test because further examination of the principles discussed in Casey reveals that the constitutional inquiry described in that case does not fall so far outside the "implicit in the concept of ordered liberty" and "deeply rooted in history and tradition" analysis as to lead to a different conclusion here.

Thus, in the present context, consistent with the observations of Justice Harlan^[48] quoted approvingly [477] and expanded upon in Casey, 120 L Ed 2d 697-698, we must determine whether the asserted right to commit suicide arises from a rational evolution of tradition, or whether recognition of such a right would be a radical departure from historical precepts. We conclude that the principles that guide analysis of substantive due process do not support the recognition of a right to commit suicide.

2

Although acts of suicide are documented throughout the recorded history of England and this nation, we find no indication of widespread societal approval. To the contrary, suicide was a criminal offense, with significant stigmatizing consequences.^[49] As a policy matter, and for practical reasons, suicide was not criminalized in most states. 2 LaFave & Scott, Substantive Criminal Law, § 7.8, pp 246-251. Lawmakers recognized the futility of punishment and the harshness of property forfeiture and other consequences. Id.

Also, it was assumed that one who committed suicide was suffering from a mental frailty of one sort or another, and thus lacked the necessary mens rea to commit a crime. Marzen, O'Dowd, Crone & Balch, Suicide: A constitutional right?, 24 Duq L R 1, 63, 69, 85-86, 88-89 (1985).

One who assisted a suicide was accorded no such [478] concession, however.^[50] At the time the Fourteenth Amendment was ratified, at least twenty-one of the thirty-seven existing states (including eighteen of the thirty ratifying states) proscribed assisted suicide either by statute or as a common-law offense. Id. at 76.

Presently, a substantial number of jurisdictions have specific statutes that criminalize assisted suicide,^[51] and the Model Penal Code also provides for criminal penalties.^[52] Further, nearly all states expressly [479] disapprove of suicide and assisted suicide either in statutes dealing with durable powers of attorney in health-care situations,^[53] or in "living will" statutes.^[54] In addition, all states provide for the involuntary commitment of persons who may harm themselves as the result of mental illness,^[55] and a number of states allow the use of nondeadly force to thwart suicide attempts.^[56]

[480] It is thus incorrect to conclude, on the basis of the absence of criminal penalties for an act of suicide itself and the existence of a pragmatic capacity to commit suicide, that there is a constitutional right to commit suicide.^[57] Such a right is not expressly recognized anywhere in the United States Constitution or in the decisions of the United States Supreme Court, and cannot be reasonably inferred.^[58] In fact, as we observed earlier in this opinion, those courts that have found a right to refuse to begin or to continue life-sustaining medical treatment have done so only after concluding that such refusal is wholly different from an act of suicide.^[59]

Indeed, the United States Supreme Court repeatedly and unequivocally has affirmed the sanctity of human life and rejected the notion that there is a right of self-destruction inherent in any common-law [481] doctrine or constitutional phrase. In Cruzan, the majority observed:

As a general matter, the States — indeed, all civilized nations — demonstrate their commitment to life by treating homicide as a serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide. We do not think a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death. [497 US 280.]

On the basis of the foregoing analysis, we would hold that the right to commit suicide is neither implicit in the concept of ordered liberty nor deeply rooted in this nation's history and tradition. It would be an impermissibly radical departure from existing tradition, and from the principles that underlie that tradition, to declare that there is such a fundamental right protected by the Due Process Clause.

F

We are keenly aware of the intense emotions and competing moral philosophies that characterize the present debate about suicide in general, and assisted suicide in particular. The issues do not lend themselves to simple answers. However, while the complexity of the matter does not permit us to avoid the critical constitutional questions, neither does it, under the guise of constitutional interpretation, permit us to expand the judicial powers of this Court, especially where the question clearly is a policy one that is appropriately left to the citizenry for resolution, either through its [482] elected representatives or through a ballot initiative under Const 1963, art 2, § 9.^[60]

We would hold that the Due Process Clause of the federal constitution does not encompass a fundamental right to commit suicide, with or without assistance, and regardless of whether the would-be assistant is a physician.

VI

A

Finally, we turn to the issue presented in the Oakland County case involving the deaths of Sherry Miller and Marjorie Wantz. Their deaths occurred before the enactment of Michigan's ban on assisted suicide, and the question is whether defendant Kevorkian can be prosecuted for his role in the deaths.

Each woman was said to be suffering from a condition that caused her great pain or was severely disabling. Each separately had sought defendant Kevorkian's assistance in ending her life. The women and several friends and relatives met [483] the defendant at a cabin in Oakland County on October 23, 1991.

According to the testimony presented at the defendant's preliminary examination, the plan was to use his "suicide machine." The device consisted of a board to which one's arm is strapped to prevent movement, a needle to be inserted into a blood vessel and attached to IV tubing, and containers of various chemicals that are to be released through the needle into the bloodstream. Strings are tied to two of the fingers of the person who intends to die. The strings are attached to clips on the IV tubing that control the flow of the chemicals. As explained by one witness, the person raises that hand, releasing a drug called methohexital, which was described by expert witnesses as a fast-acting barbiturate that is used under controlled circumstances to administer anesthesia rapidly.^[61] When the person falls asleep, the hand drops, pulling the other string, which releases another clip and allows potassium chloride to flow into the body in concentrations sufficient to cause death.

The defendant tried several times, without success, to insert the suicide-machine needle into Ms. Miller's arm and hand. He then left the cabin, returning several hours later with a cylinder of carbon monoxide gas and a mask apparatus. He attached a screw driver to the cylinder, and showed Ms. Miller how to use the tool as a lever to open the gas valve.

The defendant then turned his attention to Ms. Wantz. He was successful in inserting the suicide-machine needle into her arm. The defendant explained to Ms. Wantz how to activate the device so [484] as to allow the drugs to enter her bloodstream. The device was activated,^[62] and Ms. Wantz died.^[63]

The defendant then placed the mask apparatus on Ms. Miller. The only witness at the preliminary examination who was present at the time said that Ms. Miller opened the gas valve by pulling on the screw driver. The cause of her death was determined to be carbon-monoxide poisoning.

The defendant was indicted on two counts of open murder. He was bound over for trial following a preliminary examination. However, in circuit court, the defendant moved to quash the information and dismiss the charges, and the court granted the motion.

B

A divided Court of Appeals reversed. People v [485] Kevorkian No 1, 205 Mich App 180; 517 NW2d 293 (1994). The Court of Appeals majority relied principally on People v Roberts, 211 Mich 187; 178 NW 690 (1920).

In Roberts, the defendant's wife was suffering from advanced multiple sclerosis and in great pain. She previously had attempted suicide and, according to the defendant's statements at the plea proceeding, requested that he provide her with poison. He agreed, and placed a glass of poison within her reach. She drank the mixture and died. The defendant was charged with murder. He pleaded guilty, and the trial court determined the crime to be murder in the first degree.

The defendant appealed. He argued, among other things, that because suicide is not a crime in Michigan, and his wife thus committed no offense, he committed none in acting as an accessory before the fact. The Court rejected that argument, explaining:

If we were living in a purely common-law atmosphere with a strictly common-law practice, and defendant were charged with being guilty as an accessory of the offense of suicide, counsel's argument would be more persuasive than it is. But defendant is not charged with that offense. He is charged with murder and the theory of the people was that he committed the crime by means of poison. He has come into court and confessed that he mixed poison with water and placed it within her reach, but at her request. The important question, therefore, arises as to whether what defendant did constitutes murder by means of poison. [211 Mich 195.]

After discussing a similar Ohio case, Blackburn v State, 23 Ohio St 146 (1872), the Roberts Court concluded:

[486] We are of the opinion that when defendant mixed the paris green with water and placed it within reach of his wife to enable her to put an end to her suffering by putting an end to her life, he was guilty of murder by means of poison within the meaning of the statute, even though she requested him to do so. By this act he deliberately placed within her reach the means of taking her own life, which she could have obtained in no other way by reason of her helpless condition. [211 Mich 198.]

In the instant case, defendant Kevorkian had argued that the discussion of this issue in Roberts was dicta because the defendant in that case had pleaded guilty of murder, and thus the controlling authority was People v Campbell, 124 Mich App 333; 335 NW2d 27 (1983).^[64] The Court of Appeals majority rejected that view and said that Roberts controlled the issue presented in the instant case.

C

We agree with the Court of Appeals that the [487] holding in Roberts was not dicta.^[65] While it is true that defendant Roberts pleaded guilty of placing a poisonous mixture at the bedside of his sick wife, knowing that she intended to use it to commit suicide, nothing in the opinion indicates that this Court based its affirmance of the conviction of first-degree murder on the fact that the conviction stemmed from a guilty plea.

However, it is not sufficient in the instant case to decide simply that the holding in Roberts was not dicta. We must determine further whether Roberts remains viable, because, as noted in People v Stevenson, 416 Mich 383, 390; 331 NW2d 143 (1982):

This Court has often recognized its authority, and indeed its duty, to change the common law when change is required.^[66]

The crime of murder has been classified and categorized by the Legislature, see MCL 750.316; MSA 28.548 and MCL 750.317; MSA 28.549, but the definition of murder has been left to the common law. People v Aaron, 409 Mich 672; 299 NW2d 304 (1980); People v Scott, 6 Mich 287 (1859). Unless abrogated by the constitution, the Legislature, or this Court, the common law applies. [488] Const 1963, art 3, § 7; Aaron, supra at 722-723.

Under the common-law definition, "`[m]urder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in peace of the state, with malice prepense or aforethought, either express or implied.'" Aaron, supra at 713, quoting People v Potter, 5 Mich 1 (1858). Implicit in this definition is a finding that the defendant performed an act that caused the death of another. To convict a defendant of criminal homicide, it must be proven that death occurred as a direct and natural result of the defendant's act. People v Barnes, 182 Mich 179, 196; 148 NW 400 (1914). See also People v Flenon, 42 Mich App 457, 460; 202 NW2d 471 (1972) ("a defendant's [first-degree murder] conviction should only be sustained where there is a reasonable and direct causal connection between the injury and death").

Early decisions indicate that a murder conviction may be based on merely providing the means by which another commits suicide.^[67] However, few jurisdictions, if any, have retained the early common-law view that assisting in a suicide is murder. The modern statutory scheme in the majority of states treats assisted suicide as a separate crime, with penalties less onerous than those for murder. See, e.g., 1993 PA 3, which was enacted by our own Legislature.^[68]

[489] Recent decisions draw a distinction between active participation in a suicide and involvement in the events leading up to the suicide, such as providing the means. Frequently, these cases arise in the context of a claim by the defendant that the prosecution should have been brought under an assisted suicide statute. The courts generally have held that a person may be prosecuted for murder if the person's acts went beyond the conduct that the assisted suicide statute was intended to cover.

For example, in People v Cleaves, 229 Cal App 3d 367; 280 Cal Rptr 146 (1991), the defendant was charged with first-degree murder in the strangulation death of another man. The trial court had refused a defense request to instruct the jury on the statutory offense of aiding and abetting a suicide, and the jury convicted him of second-degree murder.

In deciding whether an instruction on the statutory [490] offense of aiding and abetting suicide should have been given, the appellate court accepted the defendant's detailed version of the events. The decedent in Cleaves was suffering from AIDS and wanted the defendant's assistance in strangling himself. With the defendant's help, the decedent trussed his body in an arched position, with his face down on a pillow. The defendant's role, when the decedent "pulled down" on the truss to effect strangulation, was to put his hand on the decedent's back to steady him. At one point, when the sash slipped from the decedent's neck, the defendant rewrapped it at the decedent's request and retied it to the decedent's hands. By straightening out his body with his feet, the decedent was in sole control of how tight the sash was around his neck. In holding that the trial judge properly refused to instruct the jury under the assisted suicide statute, the appeals court said:

[The statute] provides: "Every person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony." As explained by our Supreme Court, the "key to distinguishing between the crimes of murder and of assisting suicide is the active or passive role of the defendant in the suicide. If the defendant merely furnishes the means, he is guilty of aiding a suicide; if he actively participates in the death of the suicide victim, he is guilty of murder." [In re Joseph G, 34 Cal 3d 429, 436; 194 Cal Rptr 163; 667 P2d 1176; 40 ALR4th 690 (1983).] The statute providing for a crime less than murder "`does not contemplate active participation by one in the overt act directly causing death. It contemplates some participation in the events leading up to the commission of the final overt act, such as furnishing the means for bringing about death, the gun, the knife, the poison, or providing the water, for the use of the person who himself commits the act of self-murder. But where a person actually performs, [491] or actively assists in performing, the overt act resulting in death, such as shooting or stabbing the victim, administering the poison, or holding one under water until death takes place by drowning, his act constitutes murder, and it is wholly immaterial whether this act is committed pursuant to an agreement with the victim....'" [People v Matlock, 51 Cal 2d 682, 694; 336 P2d 505; 71 ALR2d 605 (1959).] [229 Cal App 3d 375.]

In Cleaves, viewing the evidence most favorably for the defense, the court said there were no facts to support the requested instruction on aiding and abetting an assisted suicide. Although the defendant may not have applied pressure to the ligature itself, he admitted that his act of holding the decedent to keep him from falling off the bed was designed to assist the decedent in completing an act of strangulation. "This factual scenario indisputably shows active assistance in the overt act of strangulation," the court said. Id. at 376.

Similarly, in State v Sexson, 117 NM 113; 869 P2d 301 (NM App, 1994), cert den 117 NM 215 (1994), the defendant was charged with first-degree murder in connection with the fatal shooting of his wife. He was convicted of second-degree murder following a bench trial, and argued on appeal that he should have been prosecuted under the state's assisted suicide statute.

The only fact in dispute in Sexson was whether it was the defendant or the decedent who actually pulled the trigger of the rifle that killed her. It was not disputed that there was a suicide agreement between the two, and that the pact was genuine. The defendant claimed simply to have held the rifle in position while the decedent pulled the trigger, and that he had failed to then kill himself because he "freaked out" when the decedent continued to breathe after being shot.

[492] The appellate court rejected the defendant's argument that he could not be prosecuted under the more general murder statute because of the specific assisted suicide statute. In so doing, the court emphasized that the two statutes proscribed different conduct:

The wrongful act triggering criminal liability for the offense of assisting suicide is "aiding another" in the taking of his or her own life. It is well accepted that "aiding," in the context of determining whether one is criminally liable for their involvement in the suicide of another, is intended to mean providing the means to commit suicide, not actively performing the act which results in death. .. .

There are three different views about the criminal liability of one who, whether pursuant to a suicide pact or not, solicits (by talk) or aids (as by providing the means of self-destruction) another to commit suicide. Occasionally aiding or soliciting suicide has been held to be no crime at all on the ground that suicide is not criminal. That view is most certainly unsound. At one time many jurisdictions held it to be murder, but a great many states now deal specifically with causing or aiding suicide by statute, treating it either as a form of manslaughter or as a separate crime. Such statutes typically do "not contemplate active participation by one in the overt act directly causing death," and thus their existence is not barrier to a murder conviction in such circumstances.

In contrast, the wrongful act triggering criminal liability for second degree murder is "kill[ing]" or "caus[ing] the death" of another. In the context of the instant case, the second degree murder statute is aimed at preventing an individual from actively causing the death of someone contemplating suicide, whereas the assisting suicide statute is aimed at preventing an individual from providing someone contemplating suicide with the means to commit suicide. Thus, the two statutes do not condemn [493] the same offense.... [117 NM ___; 869 P2d 304. Citations omitted.]

Turning to the evidence presented in Sexson, the court reiterated that the distinction accepted in other jurisdictions between murder and aiding suicide "generally hinges upon whether the defendant actively participates in the overt act directly causing death, or whether he merely provides the means of committing suicide." 869 P2d 304-305. This distinction applies even where the decedent has given consent or requested that actual assistance be provided. In Sexson, the defendant admitted holding the rifle in a position calculated to assure the decedent's death. The court concluded: "That action transcends merely providing Victim a means to kill herself and becomes active participation in the death of another." 869 P2d 305.

In the years since 1920, when Roberts was decided, interpretation of causation in criminal cases has evolved in Michigan to require a closer nexus between an act and a death than was required in Roberts. See, e.g., People v Flenon, supra; People v Scott, 29 Mich App 549, 558; 185 NW2d 576 (1971). The United States Supreme Court also has addressed the importance of relating culpability to criminal liability. See Tison v Arizona, 481 US 137; 107 S Ct 1676; 95 L Ed 2d 127 (1987); Mullaney v Wilbur, 421 US 684, 697-698; 95 S Ct 1881; 44 L Ed 2d 508 (1975).

In the context of participation in a suicide, the distinction recognized in In re Joseph G, supra at 436, constitutes the view most consistent with the overwhelming trend of modern authority. There, the California Supreme Court explained that a conviction of murder is proper if a defendant participates in the final overt act that causes death, such as firing a gun or pushing the plunger [494] on a hypodermic needle. However, where a defendant is involved merely "in the events leading up to the commission of the final overt act, such as furnishing the means ...," a conviction of assisted suicide is proper. Id.

As noted, this Court has modified the common law when it perceives a need to tailor culpability to fit the crime more precisely than is achieved through application of existing interpretations of the common law. See, e.g., Stevenson, supra; Aaron, supra. For the reasons given, we perceive such a need here. Accordingly, we would overrule Roberts to the extent that it can be read to support the view that the common-law definition of murder encompasses the act of intentionally providing the means by which a person commits suicide.^[69] Only where there is probable cause to believe that death was the direct and natural result of a defendant's act can the defendant be properly bound over on a charge of murder.^[70] [495] Where a defendant merely is involved in the events leading up to the death, such as providing the means, the proper charge is assisting in a suicide.

However, even absent a statute that specifically proscribes assisted suicide, prosecution and punishment for assisting in a suicide would not be precluded. Rather, such conduct may be prosecuted as a separate common-law offense under the saving clause of MCL 750.505; MSA 28.773:^[71]

Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court.^[72]

[496] Our reinterpretation of the common law does not enlarge the scope of criminal liability for assisted suicide, but rather reduces liability where a defendant merely is involved in the events leading up to the suicide, such as providing the means. Therefore, there is no violation of the prohibition on ex post facto laws. US Const, art I, § 9; Const 1963, art 1, § 10. See Stevenson, supra at 399-400.

D

The decision regarding whether an examining magistrate erred in binding a defendant over for trial is one that should be made in the first instance by the trial court. In this case, the lower courts did not have the benefit of the analysis set forth in this opinion for evaluating the degree of participation by defendant Kevorkian in the events leading to the deaths of Ms. Wantz and Ms. Miller.^[73] Accordingly, we remand this matter to the circuit court for reconsideration of the defendant's motion to quash in light of the principles discussed in this opinion.^[74]

VII

For the reasons given, we would reverse the [497] judgment of the Court of Appeals in Docket Nos. 99591 and 99759, and remand the cases to the respective circuit courts for further proceedings. In Docket Nos. 99752 and 99758, we would reverse the judgment of the Court of Appeals with regard to the claimed violation of Const 1963, art 4, § 24, and affirm in all other respects. Finally, in Docket No. 99674, we would vacate the judgment of the Court of Appeals, and remand the case to the circuit court for further proceedings in accordance with this opinion.

CAVANAGH, C.J., and BRICKLEY and GRIFFIN, JJ., concurred.

BOYLE, J. (concurring in part and dissenting in part).

I agree with the lead opinion that § 7 of 1993 PA 3 does not violate the Title-Object Clause of the Michigan Constitution^[1] in its entirety. I also agree with the lead opinion's result and rationale finding that the act is not violative of a fundamental right protected by the Due Process Clause of the state or federal constitution. In addition, as stated in the observations of Justice Harlan^[2] quoted approvingly in Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833; 112 S Ct 2791; 120 L Ed 2d 674, 697-698 (1992), and the expansion on those principles that follow, the task of the judiciary is to strike a balance between the respect for the liberty of the individual and the demands of organized society. Such balance should be struck with due respect to history and rationally evolving tradition. Thus, in the present context, the process of rational evolution [498] must focus on a determination whether the question of assisted suicide can be left to the political process without intrusion on a protected liberty interest, eschewing either a radical departure from tradition or the moral code of individual judges. I agree that it can.

I do not agree with the lead opinion's redefinition of the statutory offense of murder to exclude participation in the events leading up to the death, including, without limitation, providing the means and all other acts save that of the final act precipitating death. A person who participates in the death of another may be charged with murder, irrespective of the consent of the deceased. Nor do I agree with the lead opinion's conclusion or rationale justifying a charge of assisted suicide under the saving clause.^[3] The saving clause recognizes only unprovided-for common-law crimes; it does not authorize this Court to create new crimes. If assisting a suicide is a common-law crime and not murder under the common-law definition incorporated in our murder statutes, it may be penalized as another crime under the saving clause. The Court, however, cannot simply exclude from the common-law definition of murder that which is murder under our statutes and then hold that the Legislature intended in the saving clause to authorize the Court to say that that which was murder at the common law is now a new crime.

Finally, I disagree with the conclusion that one who provides the means for suicides and participates in the acts leading up to death may not be charged with murder as long as the final act is that of the decedent. In stating this conclusion, the lead opinion has parsed the definition of participation to permit involvement that is dangerously [499] overinclusive. Absent standards established to distinguish between those who are in fact terminally ill or suffering in agony and rationally wish to die and those who are not, there is no principled vehicle in the judicial arsenal to protect against abuse, save the jury's evaluation of a given defendant's conduct. The acts shown in the Oakland County case establish causation as a matter of law for purposes of bindover. Thus, the trial court erred in quashing the information, and the decision of the Court of Appeals should be affirmed.

I

Criminal homicide has been a statutory offense in Michigan since 1846. The crime is not defined by reference to its elements but by reference to the common law. People v Schmitt, 275 Mich 575, 577; 267 NW 741 (1936). There is no dispute that at the time these offenses were committed, the Legislature had shown no disposition to depart from the common-law definition of murder as including assisted suicide. The lead opinion today would alter the definition of murder by changing the causation requirement in the context of suicide to exclude from liability for criminal homicide those who intentionally participate in the events that directly cause death with the intention that death occur.

However, the intended results of the plaintiff's acts were the results actually obtained, and the acts were both the cause in fact and the proximate or foreseeable cause of the decedents' deaths. The lead opinion would thus redefine murder as it is defined in our statutes and has created a special causation standard, unknown in any other jurisdiction.

The detailed account of the preliminary examination [500] testimony describing the assisted suicides of Ms. Miller and Ms. Wantz, ante at 482-484, belies the notion that the degree of participation by the defendant in these events was insufficient to permit a charge of murder even in those states that have adopted separate penalties for soliciting or assisting suicide. Testimony at the preliminary examination presented evidence that the defendant, inter alia, inserted IV needles into Ms. Wantz' arm, tied strings to her fingers so she could release chemicals into her bloodstream, and placed a mask over Ms. Miller's face so that she could breathe carbon monoxide gas. Id. at 483-484. The mask was secured so tightly that without intervention that fact alone would have caused death. It cannot be said, as a matter of law, that these actions did not establish probable cause to believe that the defendant committed murder.

The decedents' alleged desire in the present case that they die with the defendant's assistance does not absolve the defendant of criminal liability. People v Potter, 5 Mich 1, 5 (1858). The request by the decedents does not provide justification or excuse. E.g., State v Cobb, 229 Kan 522; 625 P2d 1133 (1981); State v Fuller, 203 Neb 233; 278 NW2d 756 (1979); anno: Criminal liability for death of another as result of accused's attempt to kill self or assist another's suicide, 40 ALR4th 702, § 5, pp 709-710. The magistrate's decision to bind over the defendant for trial should be upheld.

II

The lead opinion invites the circuit court on remand to draw a distinction between acts of participation that are merely "the events leading up to" the deaths of the decedents and "the final overt act that causes death" that, as a matter of law, will constitute probable cause for the charge [501] of murder. Such a "test" transfers the responsibility for the outcome from the shoulders of this Court to the trial court and effectively converts every criminal homicide accomplished by participation into assisting suicide.

It could be argued that this solution does no more than what the assisted suicide law does. But the assisted suicide law is still only a temporary measure, and the Legislature has never indicated that it would not follow the model of other states and continue to apply the law of criminal homicide despite the existence of statutes specifically directed to suicide.

The lead opinion's "solution" is in fact an invitation to continue participation until the level of participation assumes a level of proof for bindover suggesting that the defendant intended to kill a decedent for impure reasons. In pragmatic terms, the force of the law is to discourage conduct on the margins. What the lead opinion would do in setting new margins is permit a new range of activity and thus increase the potential for abuse of the vulnerable by the active participant.

As the Canadian Supreme Court recently and aptly observed in upholding a blanket prohibition against assisted suicide:

The basis for this refusal is twofold it seems — first, the active participation by one individual in the death of another is intrinsically morally and legally wrong, and secondly, there is no certainty that abuses can be prevented by anything less than a complete prohibition. [Rodriguez v British Columbia, 107 DLR4th 342, 401 (1993).]

A

People v Roberts, 211 Mich 187; 178 NW 690 [502] (1920), correctly held that the homicide statute had incorporated the common-law definition of assisted suicide as murder. The question presented is whether we have the authority to modify that definition and, granting that we have the power to do so, whether we should. People v Couch, 436 Mich 414; 461 NW2d 683 (1990). The latter question involves the issue whether the judiciary can devise an acceptable formula advancing the autonomy of those who deem their lives not worthy to be lived, without jeopardizing the lives of those whose further existence society might deem not worthy of protection. That the Court is unable to do so is illustrated by today's decision that alters the law of causation in all suicide settings, not just those of the terminally ill or acutely suffering.

As Justice Jackson observed in a famous dissent, a judicial decision has a force all its own. "The principle then lies about like a loaded weapon.... Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes." Korematsu v United States, 323 US 214, 246; 65 S Ct 193; 89 L Ed 194 (1944).

The fact that an active participant in the death of another risks jury determination that the circumstances are not so compelling as to benefit from their mercy-dispensing power tests the situation and the actions by the only repository of authority within the judicial reach. Whether death has been caused for good, bad, or mixed reasons, or whether the person is in fact presently incurable or suffering intolerable and unmanageable pain, and has a fixed and rational desire to die, are issues that should be addressed by a jury or the Legislature, not by this Court as a matter of law.

Today the Court purports to approve only a mild deviation from the common law by moving the line of protection the murder statute affords from [503] participation to pulling the trigger. But the law that condemns such killings as murder has a substantially greater deterrent effect, imposing a substantially greater responsibility on those who would violate it than the penalty for assisted suicide.

While the Court's redefinition of causation is presumably correctable, the lead opinion would reduce the deterrent potential without any assurance that the line it draws will not marginally increase the risk of death for those who would have a reason to live had society and the participant in their demise valued their continued existence.

The lead opinion recognizes that the state's interest in guarding against potential abuses does not require it to stand neutral. The state's interest in protecting the lives of those who wish to live under any circumstances also justifies the most severe sanction for those who would cause such deaths. The lead opinion nonetheless sends the message that it assesses the quality of particular human life and judges as a matter of law that it is less culpable to destroy some lives than others.^[4] In a society that draws a line that dictates that it is better that many go free than that one innocent person should be convicted, something approaching the principles protecting against error that are extended to the criminally accused should be extended to the victims of those who are willing to participate in suicide and to cause death, as long as they do not pull the final trigger. Kamisar, Some non-religious views against proposed "mercy-killing" legislation, 42 Minn L R 969, 1041 (1958).

[504] The lead opinion's distrust of the jury and its dislike for the severity of the punishment imposed by the law of criminal homicide has caused it to draw a line that crosses a dangerous threshold. The risk of irreversible mistake, however "minimal," should not be borne by those no longer able to protest — it should rest on those who assume the authority and wisdom to extinguish human life.

B

To the extent that this Court reduces culpability for those who actively participate in acts that produce death, we do so at the risk of the most vulnerable members of our society — the elderly, the ill, the chronically depressed, those suffering from a panoply of stressful situations: adolescence, loss of employment, the death of a child or spouse, divorce, alcoholism, the abuse of other mind-altering substances, and the burden of social stigmatization.

The lead opinion's solution assumes the actor is a sufficient buffer between the patient and the family, that the actor knows enough about the disease to assure its terminal course and enough about the sanity of the deceased to evaluate the rationality of suicide. The lead opinion thus ignores the distinction between a voluntary act carried out if the victim is sane, and the inquiry into whether the victim's mental state is compromised by disease, depression, or medication.

C

The Model Penal Code recognizes the inherent difficulty of objective management of an assisted suicide law to separate proper from improper motivations of a participant. The code classifies purposely [505] causing, that is, engaging in conduct "but for which the result in question would not have occurred," Model Penal Code, § 210.5, comment 4, p 98, suicide by force, duress, or deception as criminal homicide. Aiding or assisting another to commit suicide is a felony at the level of manslaughter if the defendant's conduct causes, that is, was a "significantly contributing factor" to a suicide or attempted suicide. Id., comment 5, p 103. The same distinctions are drawn in statutory schemes. States that have enacted assisted suicide statutes continue to permit prosecutions for criminal homicides out of recognition that underinclusive line drawing by the judiciary may, as here, permit dangerously overinclusive activity.

In fact, as the excerpts from the cases cited by the lead opinion indicate, it has not aligned itself with other states. Thus, in People v Cleaves, 229 Cal App 3d 367, 375; 280 Cal Rptr 146 (1991), the court found that a defendant who held the decedent's back so the decedent could strangle himself was not merely a passive participant in a suicide, stating that the murder statute applies "where a person actively assists in performing the overt act resulting in death...." Likewise, State v Sexson, 117 NM 113; 869 P2d 301 (NM App, 1994), does not support the lead opinion's revisionist view of causation. In Sexson, the court found that defendant could be charged with murder on evidence that he merely held a gun in place because "[t]hat action transcends merely providing the Victim a means to kill herself and becomes active participation in the death of another." Id., 869 P2d 305.

The factual setting and issue decided in In re Joseph G, 34 Cal 3d 429; 194 Cal Rptr 163; 667 P2d 1176; 40 ALR4th 690 (1983), are markedly dissimilar from those in the present case. Unlike defendant Kevorkian, who was not a party to any [506] similar agreement, but rather an aider in accomplishing the deaths of two other persons, the defendant in Joseph G was a participant in a mutual suicide pact, intending at the time of his actions to kill both himself and his partner.^[5]

In finding that a defendant who simultaneously undertook completion of the agreed to suicides with his deceased partner by a single instrumentality could only be found guilty of assisting suicide, and not murder, the California court "decline[d] to ritualistically apply the active/passive distinction" between murder and suicide assistance employed by earlier precedent to the unique facts before it. Id. at 440.

The Joseph G court did analyze precedent regarding the distinction between murder and the statutory crime of assisting suicide, but did not hold, as the lead opinion suggests, that a charge of murder against a suicide assistor is unavailable unless the assistor participated in the final overt act. Instead, the court concluded that "the key to distinguishing between the crimes of murder and of assisting suicide is the active or passive role of the defendant in the suicide. If the defendant merely furnishes the means, he is guilty of aiding a suicide; if he actively participates in the death of the suicide victim, he is guilty of murder." Id. at 436. The court made no clear distinction between where such passive assistance ends and active participation begins.^[6]

[507] Although these distinctions are irrelevant in this context because we did not have an assisted suicide statute at the time of the deaths of Ms. Wantz and Ms. Miller, the referenced discussion establishes that, in these states, participation in the overt acts causing death is chargeable as murder. Thus, the cases cited do not support the lead opinion's conclusion that if the defendant did not participate "in the act that ... directly cause[s] death," ante at 494, n 69 (emphasis added), he cannot be bound over on a charge of murder.^[7] Sexson did not pull the trigger, he held up the gun, and Cleaves did not strangle the decedent, he assisted the decedent in completing the act. Likewise, defendant Kevorkian did not pull the trigger for Ms. Miller, but he assisted Ms. Miller in completing the act. In Ms. Wantz' case, his involvement was even more direct. Defendant inserted the needle and Ms. Wantz sedated herself. When her hand dropped involuntarily, the trigger was pulled and the needle inserted by defendant was activated carrying potassium chloride in sufficient quantities to cause death. [508]

III

Finally, the lead opinion finds that one who has only participated in a suicide but has not done the final act causing death may be prosecuted under the saving clause. MCL 750.505; MSA 28.773. The statute is applicable only when two conditions obtain: the conduct is not otherwise punishable by statute and the conduct was indictable at common law. However, at common law, one who does the deed, even through an innocent agent, is a principle in the first degree. Perkins & Boyce, Criminal Law (3d ed), p 737. If suicide is not criminal,^[8] the lead opinion has attempted by judicial fiat to create a new crime of assisting suicide. Culpability for persons assisting in suicide at common law was based on participation as parties to the crime of suicide.^[9] The saving clause furnishes no basis for the Court's creation of a new crime. The usurpation of legislative authority in the lead opinion's approach is evident if one considers the reach of its rationale. The lead opinion suggests an ability to exclude certain factual settings from the reach of the homicide statutes and then, as it were, find legislative authorization of a free-standing authority to recognize newly evolving crimes punishable under the saving clause. If such conduct were permissible, the Court could simply reorder the punishment for any felony by concluding that conduct falls outside a given statute but within the saving clause. Contrary to the lead opinion's conclusion, the saving clause is not a delegation of legislative authority to this Court to create new crimes. The Legislature intended to save only what had not otherwise been covered in 1846. [509]

CONCLUSION

The lead opinion would hold that where one "only" plans and participates in a death the actor can claim was "suicide," he may not be charged as a matter of law with criminal homicide. No jurisdiction in the history of this country has so held and for obvious reasons. We have no way of assuring that redefining the line that constitutes causation will distinguish between terminally ill or desperately suffering people and those who think they are, no way of deciding in advance that the act of suicide is that of a rational person who chose death with dignity or that of a severely depressed person who would not have chosen death had help been available. Most significantly, the lead opinion's unwillingness to allow a jury to dispense mercy by determining the degree of culpability for a result clearly intended and caused in fact by a defendant is a sea change in the fundamental value we have assigned to the preservation of human life as one of the last great faiths that unites us.

The question whether the definition of murder should be changed so as to exclude one who participates in all events leading up to the death, save for the final act, is a matter of compelling public interest, demanding a balancing of legitimate interests that this Court is institutionally unsuited to perform. Although the Legislature passed a temporary assisted suicide law that included participation, it has not indicated that it intends to redefine murder, and every jurisdiction that has adopted a specific law covering assisted suicide has permitted prosecution for murder where the participation goes "too far." No issue is more deserving of continued legislative debate and public study regarding whether, when, and how persons [510] can maximize personal autonomy without running the risk of creating a societal quicksand for irreversible error.

The decision to stay our hand in this matter is not simply a matter of adhering to the rule of law.^[10] It reflects the wisdom in recognizing that if we choose not to intervene, we have left the pressure for change in this rapidly developing and exceedingly complex field in the forum where it is best addressed. To choose to intervene is to remove the pressure to decide that assisting suicide can be found by a jury to be murder, and to add the Court's imprimatur to the voices of those who argue for an expansive right to self-determination that would decriminalize assisted suicide.

As Professor Tribe observed in the context of constitutional principles regarding these issues:

[T]he judiciary's silence regarding such constitutional principles probably reflects a concern that, once recognized, rights to die might be uncontainable and might prove susceptible to grave abuse, more than it suggests that courts cannot be persuaded that self-determination and personhood may include a right to dictate the circumstances under which life is to be ended. In any event, whatever the reason for the absence in the courts of expansive notions about self-determination, the resulting deference to legislatures may prove wise in light of the complex character of the rights at stake and the significant potential that, without careful statutory guidelines and gradually evolved procedural controls, legalizing euthanasia, rather than respecting people, may endanger personhood. [Tribe, Constitutional Law (2d ed), pp 1370-1371.]

The profound questions that must be debated [511] and the regulatory decisions that must be made are uniquely suited for legislative resolution. There is no principled method by which the Court can amend the common-law definition of murder, included in the statutes of this state. People v Utter, 217 Mich 74, 86; 185 NW 830 (1921).

[I]t is proper, in fact the oath we took requires nothing less, to rely on the Legislature to devise, should it choose to do so, a means to avoid the harsh penalty that is imposed when assisting a suicide is treated as murder pursuant to a literal application of MCL 750.316; MSA 28.548. [People v Kevorkian No 1, 205 Mich App 180, 191; 517 NW2d 293 (1994).]

RILEY, J., concurred with BOYLE, J.

LEVIN, J. (concurring in part and dissenting in part).

I agree with the lead opinion that § 7 of 1993 PA 3,^[1] enacting that a person, who provides the "physical means" or "participates in a physical act" by which another person attempts or commits suicide, is guilty of criminal assistance to suicide,^[2] [512] does not violate the Title-Object Clause of the Michigan Constitution.^[3]

I further agree with the lead opinion that the common-law offense of murder should be redefined to preclude conviction for murder on evidence that the accused was merely involved in the events leading up to the death, such as providing the means, and that in such a case the proper charge is assisted suicide under the saving clause of the Penal Code providing that it is a five-year felony to commit a common-law offense for which no provision is made by statute.^[4]

I also agree that § 7 of act 3 does not violate the Due Process Clause of the Fourteenth Amendment of the United States Constitution^[5] insofar as it bars assisting suicide by a physically healthy but mentally disturbed or incompetent person.^[6]

[513] I would hold, however, that § 7 of act 3 violates the Due Process Clause insofar as it bars a competent, terminally ill person facing imminent, agonizing death from obtaining medical assistance to commit suicide.

I would accordingly direct, in the three criminal cases (numbers 99591, 99674, and 99759), that if the circuit court determines on remand that the evidence produced at the preliminary examinations shows that the persons who committed suicide were competent, terminally ill, facing an imminent, agonizing death, the motion to quash should be granted with regard to assisted suicide as well as murder, and, if the preliminary examination records are inadequate for that purpose, the matters should be remanded by the circuit court for a further preliminary examination to determine whether the persons who committed suicide were competent, terminally ill, and facing an imminent, agonizing death.

I

1993 PA 3 does not violate the Title-Object Clause of the Michigan Constitution because

• Act 3 embraces but one object, namely, issues related to death and dying, including assistance of suicide, and

[514] • Act 3, in contrast with 1992 PA 270, was not altered or amended on its passage through either house.

II

Dr. Kevorkian is not a murderer. The evidence in the instant People v Kevorkian cases, in contrast with the record in People v Roberts, 211 Mich 187; 178 NW 690 (1920), which depended substantially on the possibly self-serving testimony of the defendant, who had pleaded guilty, establishes that Dr. Kevorkian did no more than provide the physical means by which the decedents took their own lives. That evidence establishes no more than criminal assistance of suicide or a common-law assisted suicide offense for which no provision is made by statute.^[7]

I agree with the lead opinion that Roberts should be overruled insofar as it can be read as holding that a person who does no more than assist another in committing suicide has acted with the requisite malice to establish that element of the crime of murder.^[8]

Because the evidence adduced in the murder prosecutions showed no more than criminal assistance to suicide or such a common-law assisted suicide offense, I see no need for a remand to determine whether Dr. Kevorkian should be bound over on a charge of murder. I join in part VI of the lead opinion to join in overruling Roberts to the extent that it can be read to support the view that the common-law definition of murder encompasses [515] intentionally providing the means by which a person commits suicide.^[9]

III

The Attorney General and the prosecutors contend that in no circumstance does a person have a liberty interest under the Due Process Clause in obtaining medical assistance to commit suicide. Dr. Kevorkian contends that any terminally ill person has such a liberty interest. I do not agree with either of those absolute positions.

I have signed the opinion of a colleague^[10] that would recognize a right in some circumstances to physician-assisted suicide because I agree with him that a person who is terminally ill may have a liberty interest in obtaining a physician's assistance to commit suicide, and that § 7 of act 3 may be violative of the Due Process Clause as applied to a particular terminally ill person.

Absent legislation providing a means, with legislatively prescribed safeguards, by which a terminally ill person may obtain such medical assistance, I would hold that a terminally ill person may apply to the circuit court for an order declaring entitlement to seek medical assistance, and that § 7 of act 3 is violative of the Due Process Clause as applied to that person.

The developing law^[11] concerning the withholding of medical treatment^[12] would assist a circuit judge in deciding whether it is appropriate under all the [516] circumstances to conclude that the person is entitled to seek medical assistance to commit suicide. Such a case should, of course, be expedited, and preliminary phases of such litigation could precede the time when the terminally ill person actually faces imminent, agonizing death.

The record in Hobbins v Attorney General does not establish that the persons alleging terminal illness in that litigation have now reached the threshold where it would be appropriate to conclude that they are entitled to seek medical assistance to commit suicide, nor do they claim that they have an immediate desire to do so. They should be allowed to commence an action at any time to establish a record so that if and when they approach the threshold where it is appropriate to conclude that they are entitled to medical assistance to commit suicide, the preliminary phases of such litigation will have been concluded and the circuit court can, on a proper showing, expeditiously enter an order providing the relief that they seek so that they can die, if they choose, less convulsively, less painfully, and with as much dignity as may be possible.

IV

I turn to the meritorious question, whether § 7 of act 3 violates the Due Process Clause.

The lead opinion states that "the threshold question in this case is whether the [Due Process C]lause encompasses a fundamental right to commit suicide and, if so, whether it includes a right to assistance."^[13]

[517] By framing the question in this manner, the lead opinion foreordains the answer.

There is a long history of laws prohibiting suicide. The state has the power, indeed the obligation, to protect life. But laws prohibiting suicide and assisted suicide evolved to address situations different from those here at issue. Those laws assume that persons seeking to terminate their lives are emotionally disturbed or mentally ill. This is so in the vast majority of cases.

The real issue is not whether the state can generally prohibit suicide. The real issue is whether the state may deny a competent, terminally ill person, facing imminent, agonizing death, medical assistance to commit suicide.

I agree with the lead opinion that assisted suicide can be distinguished from other conduct protected by the Due Process Clause, such as abortion and the withdrawal of life-sustaining medical treatment. The absence of controlling precedent precisely addressing the issue does not, however, end the inquiry, as the lead opinion presupposes when it states, "[w]e disagree ... that either Cruzan [v Director, Missouri Dep't of Health, 497 US 261; 110 S Ct 2841; 111 L Ed 2d 224 (1990)] or [Planned Parenthood of Southeastern Pennsylvania v] Casey [, 505 US 833; 112 S Ct 2791; 120 L Ed 2d 674 (1992),] preordains that the Supreme Court would find that any persons, including the terminally ill, have a liberty interest in suicide that is [518] protected by the Fourteenth Amendment."^[14] (Emphasis added.)

If the issue were preordained, these cases would not be so troubling. The real issue facing the Court is not whether suicide or assisting suicide can be proscribed by law, but whether the Due Process Clause bars a state from depriving a competent, terminally ill person, facing imminent death, and increasing agony, from obtaining medical assistance to avoid suffering such a bitter end of life.

The lead opinion distinguishes at length the instant cases from Cruzan and Casey, and stresses the obvious: there is a long history of laws outlawing suicide.

Abortion and withdrawal of life-sustaining measures are indeed different from assisted suicide. Nevertheless, a reasoned application of the principles stated in Casey and Cruzan persuades me that state law restrictions on a person's ability to end his life implicates the interest in personal liberty. Whether a competent, terminally ill person has a right to medical assistance to commit suicide cannot be decided without balancing the state's interest against the person's interest. I conclude that the United States Supreme Court, as presently composed, if constrained to decide the question, would hold that the person's interest outweighs the state's interest when the person is competent, terminally ill and facing an imminent and agonizing death.

I thus so conclude, not from any explicit command of precedent, but by applying the approach suggested by the United States Supreme Court in Casey, "reasoned judgment"^[15] to the imperfect analogies of Casey and Cruzan.^[16] [519]

V

The lead opinion dismisses Casey, arguing that it was decided on the basis of stare decisis, rather than the merits, and that abortion is sui generis. Casey, however, reaffirmed the doctrinal support for earlier abortion rights decisions of the United States Supreme Court, stating:

[T]he reservations any of us may have in reaffirming the central holding of Roe [v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973)] are outweighed by the explication of individual liberty we have given combined with the force of stare decisis." [Id., 112 S Ct 2808. Emphasis added.]

The Casey plurality clarified the analytic method for deciding substantive due process issues, and said:

The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet neither does it permit us to shrink from the duties of our office. [Id., 112 S Ct 2806 (opinion [520] of O'Connor, Kennedy, and Souter, JJ.). Emphasis added.]

Although the lead opinion would limit the inquiry solely to historical practices and precedent, Casey calls on us to engage in a more thoughtful, less formulaic approach.^[17]

VI

Another line of cases, beginning with In re Quinlan, 70 NJ 10; 355 A2d 647 (1976), and, more recently Cruzan, supra, addresses the question whether life-sustaining medical treatment may be withdrawn from an incompetent person. Cruzan said that recognition of a right to refuse life-sustaining support was implicit in the Court's earlier decisions construing the Due Process Clause. The Court on that basis assumed that "the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition." Id. at 279.^[18]

The Court said that competing interests were [521] involved, especially where, as in Cruzan,^[19] the life of an incompetent person was involved.^[20] The Court ruled in conclusion that a Missouri statute requiring that there be clear and convincing evidence of the incompetent person's intent before authorizing the withdrawal of life-sustaining treatment struck a constitutionally permissible balance between the competing interests.^[21]

The lead opinion contends that withdrawal of life support can be distinguished from assisted suicide. I generally agree.

A rule allowing a person to have his respirator disconnected, but to take no other steps to end his life, condemns him to choke to death on his own sputum. Similarly, if the law bars a person who can only take nourishment through a feeding tube from taking steps in addition to ordering the tube removed to end his life, he is required to suffer death by starvation and dehydration. Barring such persons from taking other steps to end their lives would, I think, constitute an undue burden on the right implicitly recognized in Cruzan.^[22]Cruzan should not be read as limiting a person to a half step when that would result in greater suffering.

The legitimate concerns about involuntary euthanasia apply with at least as much force to the withdrawal of life support where the person is incompetent, yet the United States Supreme Court in Cruzan held that a state statute permitting the withdrawal of life support on proof of the incompetent's wishes by clear and convincing evidence was consistent with due process. [522]

VII

The Casey plurality resolved the conflict between the state's interest in the life of the fetus and the woman's interest in bodily integrity and self-determination by drawing a line at fetal viability.^[23] Before viability, the state may not place an "undue burden" on the woman's right to an abortion.^[24]

In Cruzan, the Court struck a balance between the state's interest in life and preventing euthanasia, and the incompetent person's interest in being free of unwelcome bodily intrusions. The Court found that a "clear and convincing" evidentiary standard provided a permissible balance of the competing interests.^[25]

In the suicide context, legitimate state interests generally outweigh a person's interest in ending his life. The vast majority of suicides are "irrational" efforts by the depressed or mentally disturbed. Society can reasonably assume that a person's mental problems have clouded his perception. Where an otherwise healthy person is depressed or mentally disturbed, the personal liberty interest is weak, and the state has a strong interest in protecting the person's interests in life.

In contrast, where the person involved is competent, terminally ill, and facing imminent, agonizing death, the interest of the state in preserving life is weak, and the interest of the terminally ill person in ending suffering is strong.

[523] The state asserts two interests.^[26] First, the state's general interest in preserving life.^[27] In most situations where a person might seek to commit suicide, the person, even if handicapped or emotionally disturbed, has years of life remaining for the state to protect. That possibility has been largely foreclosed for a terminally ill person. The choice that remains is not between life and death, but over the terms of death.

The principal argument against assisted suicide is the second interest asserted by the state: assuring that persons who desire to live are not coerced into committing suicide. While this is clearly a concern of great importance, adequate procedures can and have been developed to assure that a terminally ill person's choice to end life is not coerced.^[28]

Restrictions on medical assistance to commit suicide for the terminally ill should be evaluated according to the undue burden standard enunciated in Casey.^[29] The undue burden standard permits the state to regulate the process of medically assisted suicide to assure that the person truly (a) is terminally ill, (b) is competent, (c) is suffering agonizing pain, (d) faces imminent death, (e) desires [524] to commit suicide, and (f) needs or desires help to do so.

The lead opinion contends that "[n]o clear definition of `terminal illness' is medically or legally possible, since only in hindsight is it known with certainty when someone is going to die."^[30]

There is, to be sure, difficulty in defining "terminal illness." That does not justify avoiding the issue.^[31]

With appropriate regulation and safeguards, the state may account for the differences in medical opinion in determining whether a competent, terminally ill person faces an imminent agonizing death.

MALLETT, J., concurred with LEVIN, J.

MALLETT, J. (concurring in part and dissenting in part).

Because the lead opinion would find that there is no constitutional right, in any situation, to hasten one's death through physician-prescribed medications, I dissent. I agree with part IV of the lead opinion that the assisted suicide act does not violate the Title-Object Clause of the Michigan Constitution. I also agree with part VI of the lead opinion's finding, modifying the common-law definition of murder and recognizing assisting suicide [525] as a common-law offense, and further agree that if the required elements of assisting suicide are presented to an examining magistrate under the saving clause, MCL 750.505; MSA 28.773, the defendant shall be bound over for criminal prosecution. I recognize that under part VI, the defendant in this case may possibly be prosecuted for murder. Confronted with the record presented to this Court, I would find it hard to believe that an examining magistrate could determine that the defendant here was more than merely involved in the events leading up to the commission of the final overt act and thus chargeable or prosecutable for any crime other than assisting suicide. Central to the lead opinion's position are the statements made and the legal conclusions reached in part V. The following pages contain the reasons for my dissent.

There are strong arguments based on moral principles on both sides of this issue, and this Court should be wary of accepting arguments based solely on moral principles. As the United States Supreme Court stated in Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, ___; 112 S Ct 2791, 2806; 120 L Ed 2d 674 (1992), "[o]ur obligation is to define the liberty of all, not to mandate our own moral code." Defining liberty, therefore, cannot involve a morality play by any group or by a general disapproval by the majority of this Court. The liberty to end one's suffering during a terminal illness exists as shown by the decisions in Cruzan v Director, Missouri Dep't of Health, 497 US 261; 110 S Ct 2841; 111 L Ed 2d 224 (1990), In re Quinlan, 70 NJ 10; 355 A2d 647 (1976), cert den sub nom Garger v New Jersey, 429 US 922 (1976), and Compassion in Dying v Washington, 850 F Supp 1454 (WD Wash, 1994). It exists without the approval of a significant constituency [526] and is no less deserving of recognition than is abortion. Furthermore, I agree with the court in Compassion in Dying, that, in some respects, the right to physician-assisted suicide may be easier to recognize because there is no competing life interest assertable by the state.

I. THE FOURTEENTH AMENDMENT

The rights conferred under the substantive portion of the Due Process Clause have been developing for over one hundred years. Mugler v Kansas, 123 US 623; 8 S Ct 273; 31 L Ed 205 (1887). As pointed out in Planned Parenthood v Casey, 112 S Ct 2804, the Due Process Clause contains "a substantive component as well, one `barring certain government actions regardless of the fairness of the procedures used to implement them,'" quoting Daniels v Williams, 474 US 327, 331; 106 S Ct 662; 88 L Ed 2d 662 (1986).^[1]

The constitutional claim presented here falls squarely within the Due Process Clause of the Fourteenth Amendment that maintains that no state shall "deprive any person of life, liberty, or [527] property, without due process of law...." As in the abortion cases, the governing word in this case is "liberty."

The joint opinion of Justices O'Connor, Kennedy, and Souter, in reaffirming a woman's right to receive an abortion, recognized that such cases are at "an intersection of two lines of decisions...." Casey, 112 S Ct 2810. These cases may be viewed as either "an exemplar of Griswold liberty" or examples of "personal autonomy and bodily integrity...." Id., 112 S Ct 2810, citing Cruzan, supra at 278.^[2] Whether physician-assisted suicide is characterized as a liberty right or a privacy right, the proper constitutional analysis is found in Casey and the right to die cases.

The lead opinion and the various amici curiae in this case contend that liberty interests exist only where conduct is "`deeply rooted in this Nation's history and tradition'" or "`implicit in the concept of order liberty'...." See Bowers v Hardwick, 478 US 186, 191-192; 106 S Ct 2841; 92 L Ed 2d 140 (1986), quoting Palko v Connecticut, 302 US 319, 325-326; 58 S Ct 149; 82 L Ed 288 (1937), and Moore v East Cleveland, Ohio, 431 US 494, 503; 97 [528] S Ct 1932; 52 L Ed 2d 531 (1977). They argue that because there is a common background making suicide and assisted suicide crimes, physician-assisted suicide cannot be a fundamental right. They also argue that such a right cannot be found anywhere in the constitution or its amendments. However, to recognize only fundamental rights according to such a test is unsuitable for the vast and fast-moving progressions of the modern world. Earlier laws or traditions are not the "source" of liberty or privacy interests. If this were so, our nation's Supreme Court would have been unable to recognize the rights that many of us now understand to be inherent in our very being.^[3] As Justice [529] Stevens stated in Meachum v Fano, 427 US 215, 230; 96 S Ct 2532; 49 L Ed 2d 451 (1976):

[N]either the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of the citizen. The relevant state laws either create property rights, or they curtail the freedom of the citizen who must live in an ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source. [Emphasis added.]

Following the lead opinion's logic to its conclusion, fundamental rights would only arise if [530] backed by a significant constituency. "`The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy.... [F]undamental rights may not be submitted to vote; they depend on the outcome of no elections....'" Tribe, Constitutional Law (2d ed), p 1351, quoting West Virginia Bd of Ed v Barnette, 319 US 624, 638; 63 S Ct 1178; 87 L Ed 1628 (1943). Moreover, if the historical analysis test is appropriate, then the holding in Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973), would be nothing more than an exception to the rule.^[4]

A. THE RIGHT TO DIE

This Court should not demand that plaintiffs establish an historical right to self determine the quality of life that a terminally ill person must endure.

The lead opinion suggests that because the Cruzan Court merely "assumed" for the purposes of that case that a person has a constitutional right to refuse life-sustaining treatment such a right may not exist. Yet if this Court was squarely presented with that issue, it is doubtful that it would rule contrary to established precedent of this state and others.^[5]

Even applying the "concept of ordered liberty" [531] analysis espoused by the lead opinion, the right to refuse life-sustaining treatment can be recognized. In Washington v Harper, 494 US 210; 110 S Ct 1028; 108 L Ed 2d 178 (1990), the United States Supreme Court found that a competent person, even an inmate who suffers from psychotic episodes, has a due process liberty interest to be free from the unwanted administration of antipsychotic medications.^[6] Further, in the seminal case, In re Quinlan, supra at 39, the New Jersey Supreme Court explicitly recognized such a right:

We have no doubt, in these unhappy circumstances, that if Karen were herself miraculously lucid for an interval (not altering the existing prognosis of the condition to which she would soon return) and perceptive of her irreversible condition, she could effectively decide upon discontinuance of the life-support apparatus, even if it meant the prospect of natural death.

* * *

We have no hesitancy in deciding ... that no external compelling interest of the State could compel Karen to endure the unendurable, only to vegetate a few measurable months with no realistic possibility of returning to any semblance of cognitive or sapient life.

Both Harper and Quinlan, establish that a competent person has a fundamental right to refuse unwanted medical treatment. But more importantly, Quinlan and its progeny establish that a person has a right to determine whether to continue suffering when faced with an inevitable death and that the state may not compel unwanted lifesaving treatment.

[532] Moreover, other jurisdictions have recognized that the state's interest in preserving life includes the duty to protect the right of a person not to die in a demeaning or degrading manner.^[7] To recognize the right asserted here is simply a logical extension of the law.^[8] As Justice O'Connor stated [533] in Cruzan, supra at 289: "Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment."

B. PLANNED PARENTHOOD v CASEY

In Planned Parenthood v Casey, the United States Supreme Court reviewed the constitutionality of the Pennsylvania Abortion Control Act and whether its provisions constituted an undue burden on a woman's right to receive an abortion. For our purposes, the most instructive aspect of Casey was its reaffirmance of the basic tenets of Roe v Wade and a woman's fundamental right to receive an abortion.^[9]

The opinion in Casey recognized that not all the substantive due process rights were identifiable at the time of the drafting of either the Bill of Rights or the Fourteenth Amendment. The framers of the constitution were also aware of this fact and understood that liberty could not be summarized in a single document, no matter how extensive. Justice [534] Harlan's assertion in Poe v Ullman illustrates this principle best:

"[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, ... and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgments." [Casey, 112 S Ct 2805, quoting Poe v Ullman, 367 US 497, 543; 81 S Ct 1752; 6 L Ed 2d 989 (1961) (Harlan, J., dissenting). Emphasis added.]

Thus, determining the existence of a liberty right involves a textual examination of the constitution, an inward examination of a jurist's beliefs, and an analysis of public inclinations.

Justice O'Connor maintained:

The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple rule.... "Due process has not been reduced to any formula ...." [Casey, 112 S Ct 2806. Emphasis added.]

Even without a formulaic approach, reasoned [535] judgment coupled with guidance from the following language of Casey provides some insight regarding the existence of the right asserted here:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. [Id., 112 S Ct 2807. Emphasis added.]

In the ordinary course of existence, some decisions remain so personal in nature that society is not in a position to make judgments about their appropriateness. It is difficult to imagine a more personal or intimate choice than determining the nature or extent of one's suffering during a terminal illness. A person's conscience, coupled with the advice of an informed and personally chosen physician, is the appropriate decision-making method.

Therefore, under the Casey "undue burden" analysis, I believe that the statute is facially invalid because it prohibits all physician-assisted suicide. As established in the right to die cases, a person has the right to determine the extent of his suffering when faced with an inevitable death. A complete ban on physician-assisted suicide represents an "undue burden" on the right of the terminally ill to end their suffering through physician-prescribed medications. As in Casey, an infringement of a fundamental right by the state [536] that completely bars the exercise of that right cannot pass constitutional muster.^[10]

Dr. Kevorkian asks this Court to find that there is a constitutional right for a suffering person to commit suicide with the assistance of a physician. However, I do not believe that people can always make competent decisions regarding their fate while suffering because too often there are circumstances in which such decisions would be later regarded as mistakes.

Plaintiffs ask this Court to recognize that a terminally ill person has a fundamental right to hasten an inevitable death. To the extent that the plaintiff asks this Court to recognize that a terminally ill person has an absolute right to make a choice to hasten an inevitable death, I believe this swings the pendulum too far. Instead, I would conclude that a terminally ill person has such a right only if the person has made a competent [537] decision and is suffering from great pain.^[11] Because plaintiffs are in a position to meet such a requirement, the Court ought not allow the prospect of reversal by the United States Supreme Court to inhibit the analysis of the very real constitutional claims presented by the plaintiffs. Beyond this criteria, I would hold that the state may assert its interest to preserve life as well as other established interests. Therefore, because the statute completely prohibits physician-assisted suicide, I believe that it is facially invalid.

This, of course, is not to say that the state does not have a readily identifiable interest in this area. The state has a legitimate interest in the preservation of the lives of its citizenry. However, the interests are not all-encompassing interests that would allow a blanket ban on physician-assisted suicide. "The Constitution imposes on this Court the obligation to `examine carefully ... the extent to which [the legitimate government interests advanced] are served by the challenged regulation.'" Cruzan at 303 (Brennan, J., dissenting, quoting Moore v East Cleveland, supra at 499). The interest in the preservation of life that is advanced by the state in the present case is not served by preserving the life of a person who will inevitably die and is suffering intolerable pain.

II. THE STATE'S INTEREST

While it is arguable that each of us possesses the right to commit suicide because suicide is no longer criminally punishable, such a right, if it exists, is not absolute when a third party is involved. [538] Indeed, protecting the rights and interests of third parties underpins both our constitutional doctrine and criminal laws. Accordingly, I do not embrace the suggestion that because a person may have the right to commit suicide, he also has an unconditional constitutional right to physician-assisted suicide. Rather, the right to physician-assisted suicide must be balanced against the countervailing interests of the state and society.

There are four main interests in this area that may be asserted by the state: (1) the preservation of life, (2) the protection of innocent third parties, (3) the prevention of suicide, and (4) the maintenance of the ethical integrity of the medical profession. In re Rosebush, 195 Mich App 675, 681; 491 NW2d 633 (1992); In re Conroy, 98 NJ 321; 486 A2d 1209 (1985); Donaldson v Lundgren, 2 Cal App 4th 1614, 1620; 4 Cal Rptr 2d 59 (1992); Cruzan at 269-271. See also anno: Judicial power to order discontinuance of life-sustaining treatment, 48 ALR4th 67. These authorities have uniformly maintained that a "`state's interest in the preservation of life has been held to be insufficient to outweigh the individual right where the life which would be preserved would be one in a merely vegetative state or one enduring only a prolonged process of dying....'" Rosebush at 681, n 2. Similarly, there does not exist a sufficiently compelling justification for the infringement of the right of a competent, terminally ill person suffering from great pain to hasten death through physician-prescribed medications.

As a person's illness progresses to the point of facing an inevitable death while suffering great pain, the state cannot put forth a sufficient rationale to completely proscribe physician-assisted suicide. In Brophy v New England Sinai Hosp, 398 Mass 417, 433; 497 NE2d 626 (1986), the Massachusetts [539] Supreme Judicial Court balanced the state's interest in the preservation of human life against the right of self-determination and individual autonomy. The court noted that the state's interest ordinarily involves the prolongation of human life and that that interest is "very high when `human life [can] be saved where the affliction is curable.'" Quoting Superintendent of Belchertown State School v Saikewicz, 373 Mass 728, 742; 370 NE2d 417 (1977). However, the court further noted that this interest diminishes as the prognosis for recovery wanes. Brophy, 398 Mass 433. Thus, when a person is suffering from a terminal disease, the state should avoid subjective judgments concerning the quality of that person's life.^[12]

The state may also require that such decisions be made competently.^[13] Such a requirement has been fashioned by previous courts as well. In Application of President & Directors of Georgetown College, Inc, 118 US App DC 80; 331 F2d 1000 (1964), the court denied the right of patients to refuse lifesaving treatment for themselves in [540] circumstances strongly suggesting that they lack the time or the capacity for reflection on the matter, so that the course least likely to do irreversible harm was an insistence on proceeding with treatment.

Patients have been denied the right to refuse life-sustaining medical treatment where they did not have the capacity or an adequate opportunity to reflect on the finality of the decision. See, e.g., Osgood v Dist of Columbia, 567 F Supp 1026 (D DC, 1983). Additionally, the Quinlan court suggested that a person in extreme shock or pain is incapable of making a truly informed decision. 70 NJ 39, citing John F Kennedy Memorial Hosp v Heston, 58 NJ 576; 279 A2d 670 (1971).

Dr. Kevorkian's actions are within the scope of the state's protected interests. To the extent that a country sanctions the assisted suicide of the suffering, it does so at the risk of harm to its most vulnerable of citizens: e.g., the elderly and the clinically depressed.

Furthermore, extending the right to any suffering person making a rational decision almost begs the question. It has been widely acknowledged that most individuals who attempt suicide are suffering from depression, hopelessness, or lack of social interaction. Often such attempts are merely "cries for help." There are also socioeconomic pressures on individuals that make them consider suicide as a means of relief. Circumstances such as grief, prejudice, oppression, or teenage stress are often the reasons cited by people attempting suicide. Marzen, O'Dowd, Crone & Balch, Suicide: A constitutional right?, 24 Duq L R 1 (1985).

Therefore, the state has a right to legislate in this area. However, the state's interests diminish as death nears for a terminally ill person; the interests are no longer sufficient to outweigh an [541] individual's right to self-determination. Such an outcome would be consistent with Compassion in Dying, supra, in which the court recognized the right of mentally competent, terminally ill adults to knowingly and voluntarily hasten their deaths.

III. CONCLUSION

The statute at issue should be deemed facially invalid because it bans all assisted suicides. A terminally ill individual who is suffering from great pain and who has made a competent decision should have a constitutional due process right to hasten his death. Because plaintiffs are in a position to now make a choice that I believe should survive any challenge from the state, I would hold that the statute represents an undue burden on that right.

The assumption that the recognition of this right would be problematic in its administration is not an appropriate consideration when determining the existence of a fundamental right. Indeed, constitutional litigation often creates the necessity to draw abstract lines that in practice are not easily workable. Nevertheless, the recognition of fundamental rights requires choices in these areas that are not readily ascribable to any particular administrative device.

We need only look to the development of the living will as an example of guidelines in the death and dying area that work effectively and remain constitutional. Pursuant to MCL 700.496; MSA 27.5496, a competent person already has the right to document the desire to refuse lifesaving medical treatment. While such documentation provides us with the right to refuse life-sustaining treatment, our laws currently do not permit us to choose to end our suffering as we near death [542] through physician-prescribed medications. If we were allowed such an opportunity, our own reasoned judgment would prevail in each case.

There is no adequate distinction between the right of a terminally ill person to refuse unwanted medical treatment and the right to physician-assisted suicide. There is no sense in disallowing the competent choice to have a physician intervene to relieve intolerable suffering at the end of one's life. Furthermore, such a result conflicts with what many of us would desire when faced with severe pain and an inevitable death.

Many citizens of this state are disturbed by defendant Kevorkian's crusade and, at the same time, wish to see a resolution of the difficulties facing the terminally ill. Perhaps even more troubling is that, under this law, an individual is forbidden from consulting with a private, trusted physician about such matters. The recognition of a right to make such private decisions with a trusted physician would allow open and honest discussion with the patient of all options and consequences.

Substantive due process cases invariably address those rights that are considered so fundamental that they cannot be unduly burdened by the state. Here, it is fundamentally wrong not to allow a competent, terminally ill person who is suffering from great pain the opportunity to die with some dignity.

Therefore, I would hold that the plaintiffs may assert a constitutional right to physician-assisted suicide if it can be shown that they have made a competent decision and are suffering from great pain. I would further allow, consistent with Cruzan, that the state may require proof of such a competent decision by clear and convincing evidence if it chooses to so legislate.

I would reverse the judgment of the Court of [543] Appeals and allow plaintiffs to document their intent to receive physician-prescribed medications should their terminal illnesses progress to the point of great pain.

LEVIN, J., concurred with MALLETT, J.

[1] The circuit court found that the two patients, a psychiatrist, and a pharmacist had standing to challenge the statute, but that the other plaintiffs did not. The Court of Appeals did not discuss the standing question, and it has not been raised here.

[2] The standard that the trial court had announced was the following:

[T]his Court finds that when a person's quality of life is significantly impaired by a medical condition and the medical condition is extremely unlikely to improve, and that person's decision to commit suicide is a reasonable response to the condition causing the quality of life to be significantly impaired, and the decision to end one's life is freely made without undue influence, such a person has a constitutionally protected right to commit suicide.

[3] The Court of Appeals did not discuss the question of standing, and it has not been raised in this Court.

[4] As permitted by statute, the indictment did not specify the degree of murder. See MCL 750.318; MSA 28.550, MCL 767.71; MSA 28.1011.

[5] The defendant also had been indicted on one count of delivering a controlled substance for other than legitimate and professionally recognized purposes. MCL 333.7401(1); MSA 14.15(7401)(1). However, the district judge dismissed the drug count.

[6] Hobbins v Attorney General, 205 Mich App 194; 518 NW2d 487 (1994).

[7] The majority opinion was written by Judge E. THOMAS FITZGERALD. The other judges on the panel, CLIFFORD W. TAYLOR, and Washtenaw Circuit Judge DONALD E. SHELTON, sitting by assignment, wrote separate opinions. Judge SHELTON concurred with regard to the art 4, § 24 issue, but dissented with regard to the United States constitutional violation. Judge TAYLOR concurred that the statute did not violate the United States Constitution, but would have found no art 4, § 24 violation.

[8] People v Kevorkian No 1, 205 Mich App 180; 517 NW2d 293 (1994).

[9] The opinion was written by Judge FITZGERALD, and concurred in by Judge TAYLOR. Judge SHELTON dissented.

[10] The title of the bill read:

A bill to create the Michigan commission on death and dying; to prescribe its membership, powers, and duties; and to provide for the development of legislative recommendations concerning certain issues related to death and dying.

[11] Two other bills had been pending at the time of the introduction of HB 4501 that included criminal penalties for assisting suicide. HB 4038; SB 32. The language added to HB 4501 was very similar to that of SB 32.

[12] The title was amended to reflect the presence of the new provisions:

A bill to create the Michigan commission on death and dying; to prescribe its membership, powers, and duties; to provide for the development of legislative recommendations concerning certain issues related to death and dying; to prohibit certain acts pertaining to the assistance of suicide; to prescribe penalties; and to repeal certain parts of this act on a specific date. [Emphasis added.]

[13] MCL 752.1027; MSA 28.547(127). It also provided that the criminal provisions would expire six months after the commission reported to the Legislature.

[14] Under 1993 PA 3, the provision that makes it illegal to assist in a suicide reads as follows:

(1) A person who has knowledge that another person intends to commit or attempt to commit suicide and who intentionally does either of the following is guilty of criminal assistance to suicide, a felony punishable by imprisonment for not more than 4 years or by a fine of not more than $2,000.00, or both:

(a) Provides the physical means by which the other person attempts or commits suicide.

(b) Participates in a physical act by which the other person attempts or commits suicide.

(2) Subsection (1) shall not apply to withholding or withdrawing medical treatment.

(3) Subsection (1) does not apply to prescribing, dispensing, or administering medications or procedures if the intent is to relieve pain or discomfort and not to cause death, even if the medication or procedure may hasten or increase the risk of death.

(4) This section shall take effect February 25, 1993.

(5) This section is repealed effective 6 months after the date the commission makes its recommendations to the legislature pursuant to section 4. [MCL 752.1027; MSA 28.547(127).]

[15] As enacted, the title read as follows:

An act to prohibit certain acts pertaining to the assistance of suicide; to provide for the development of legislative recommendations concerning certain issues related to death and dying, including assistance of suicide; to create the Michigan commission on death and dying; to prescribe its membership, powers, and duties; to prescribe penalties; and to repeal certain parts of this act on a specific date.

[16] Similar language has been in each Michigan Constitution since 1850. Const 1850, art 4, §§ 20, 25; Const 1908, art 5, §§ 21, 22.

[17] As noted above, the circuit court in the Wayne County assisted suicide case rejected the art 4, § 24 challenge.

[18] The Court of Appeals majority said that although the statute encompasses a single "subject," it has two primary objectives. As noted earlier, the Court of Appeals reached that conclusion by artificially selecting as the object of the bill its content as originally introduced. Further, the terms "subject" and "object" are largely equivalent for the purpose of analyzing these issues, and are often used interchangeably by the courts, e.g., Livonia v Dep't of Social Services, 423 Mich 466, 499; 378 NW2d 402 (1985); Advisory Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 465-466; 208 NW2d 469 (1973). Even the Court of Appeals majority did so in the instant case:

The purpose of the one-object provision is to avoid bringing into one bill diverse subjects that have no necessary connection. Mooahesh [v Treasury Dep't, 195 Mich App 551, 564; 492 NW2d 246 (1992)]. [205 Mich App 199.]

[19] For example, in Advisory Opinion on Constitutionality of 1975 PA 227 (Question 1), 396 Mich 123; 240 NW2d 193 (1976), the statute (1) established a political ethics commission, (2) set forth requirements for candidate committees, (3) imposed filing statements with respect to contributions and expenditures, (4) placed limits on campaign expenditures, (5) established a state campaign fund, (6) regulated lobbying activities, and (7) repealed five existing laws.

In People v Carey, 382 Mich 285; 170 NW2d 145 (1969), this Court held that it was improper to include in the statute dealing with the supervision, regulation, and control of motor vehicles for hire, a provision purporting to give inspectors appointed by the Public Service Commission the same powers as police officers.

In Hildebrand v Revco Discount Drug Centers, 137 Mich App 1; 357 NW2d 778 (1984), the Court of Appeals found it unconstitutional to include in the Michigan Civil Rights Act a provision restricting the use of polygraph results in employment decisions.

[20] In Builders Square v Agriculture Dep't, 176 Mich App 494, 499; 440 NW2d 639 (1989), it was argued that the statute had two objects — regulation of pricing and regulation of deceptive advertising. However, the Court of Appeals rejected that contention and upheld the constitutionality of the act:

We do not believe the item pricing and deceptive advertising act violates the title-object clause of the Michigan Constitution. The purpose of [the] title-object clause, namely notice, was satisfied. Although dissimilar, the act's two objectives, regulation of pricing and advertising, are not so diverse in nature as to be at odds with the constitution. Further, the objects are consistent with the overall purpose, consumer protection. Since the title of the act need not be an index of its provisions, it is inconsequential that the act fails to mention consumer protection. A fair reading of the title demonstrates its purpose.

Jacobson v Carlson, 302 Mich 448; 4 NW2d 721 (1942), involved an amendment of the motor vehicle statute that dealt solely with the subject of pedestrians and sidewalks. This Court found that statute not to be in violation of the Title-Object Clause.

In Kull v State Apple Comm, 296 Mich 262; 296 NW 250 (1941), this Court upheld an act that contained provisions ranging from promoting the consumption and sale of apples to taxing apple production, creating an apple commission, and providing penalties. While the act addressed four seemingly diverse matters, it was proper to join them because all related to the regulation of the apple industry.

[21] The Public Health Code includes criminal penalties for controlled substance violations as well as many other provisions. MCL 333.1101 et seq.; MSA 14.15(1101) et seq.

[22] The Trupiano Court said:

The Supreme Court has recognized a wide degree of discretion in reviewing legislative enactments which constitute a "code." In Advisory Opinion re Constitutionality of 1972 PA 294, supra, the Court noted at 463:

"Emphasis is given to the fact that the subject matter constitutes a code and that inherently the scope of a code must be broad enough to encompass the various facets necessary to the drafting of a unified law. If we fail to permit such a design codes may not be enacted in Michigan so long as the `one-object' limitation is present in the constitution." [Trupiano at 420.]

[23] In fact, the instant statute might well be upheld even if that principle were valid. The criminal penalties section provides that it "is repealed effective 6 months after the date the commission makes its recommendations to the legislature pursuant to section 4." Thus, it could not have been separately enacted without reference to the commission provisions.

[24] As noted earlier, although the Court of Appeals majority did not address this issue, the circuit court in both the Oakland County assisted suicide case and the declaratory judgment action found a change of purpose challenge to be meritorious.

[25] See, e.g., United States Gypsum Co v Dep't of Revenue, 363 Mich 548; 110 NW2d 698 (1961); Commuter Tax Ass'n v Detroit, 109 Mich App 667; 311 NW2d 449 (1981); People v Clopton, 117 Mich App 673; 324 NW2d 128 (1982).

[26] See, e.g., People v De Blaay, 137 Mich 402, 404-405; 100 NW 598 (1904), Briggs v Campbell, Wyant & Cannon Foundry Co, 2 Mich App 204, 218-219; 139 NW2d 336 (1966), and Kriger v South Oakland Co Mutual Aid Pact, 49 Mich App 7, 13-15; 211 NW2d 228 (1973) (amendment cured title-object defect), rev'd on other grounds 399 Mich 835 (1977).

[27] The Hobbins plaintiffs object to the term "assisted suicide." They concede that there is no right under the Due Process Clause to commit "ordinary" suicide, with or without assistance. They assert only the right of mentally competent, terminally ill persons "to make the choice to hasten inevitable death," particularly by the use of lethal quantities of physician-prescribed medications. However, the common definition of "suicide" is the intentional killing of oneself by any means, and the temporal proximity of death is irrelevant to the threshold inquiry into whether the constitution encompasses such a right. We thus do not believe that it would be appropriate to use euphemistic language, even in the context of a challenge that purports to be limited to the plight of the terminally ill. We agree with the Attorney General that there is a risk that such phraseology will disguise the reality of the very sober questions that we must decide.

[28] The case generally regarded as the landmark decision concerning the refusal of life-sustaining medical treatment is In re Quinlan, 70 NJ 10; 355 A2d 647 (1976), cert den sub nom Garger v New Jersey, 429 US 922 (1976). In Quinlan, the New Jersey Supreme Court reasoned that a comatose young woman had a privacy right grounded in the federal constitution to be free from bodily invasion by further treatment (a respirator), that the right was not diminished by her mental incompetency, and that her father could refuse such treatment on her behalf.

[29] In tracing the history of cases involving the right to refuse medical treatment, the Court discussed the doctrine of informed consent that embraces the common-law notion of "bodily integrity," i.e., "the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." 497 US 269, quoting Union Pacific R Co v Botsford, 141 US 250, 251; 11 S Ct 1000; 35 L Ed 734 (1891). The Cruzan Court said that the logical corollary of the doctrine of informed consent is that a patient generally has a right not to consent, i.e., a right to refuse treatment.

By footnote, the Court observed that although many state courts had found a right to refuse medical treatment in a generalized constitutional right of privacy, the Supreme Court had not. Rather, the Court had determined that the issue more properly is analyzed in terms of a Fourteenth Amendment liberty interest. See Cruzan, 497 US 279, n 7, citing Bowers v Hardwick, 478 US 186, 194-195; 106 S Ct 2841; 92 L Ed 2d 140 (1986).

[30] The Court said that the state could "properly decline to make judgments about the `quality' of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life...." Id. at 282.

[31] The Cruzan Court said that the "clear and convincing evidence" standard was appropriate not only because of the importance of the interests at issue, but also because the standard serves as a "societal judgment" about how the risk of error should be distributed between the litigants. "The more stringent the burden of proof a party must bear, the more that party bears the risk of an erroneous decision." In the case of an effort to terminate life-sustaining medical treatment for an incompetent person, an erroneous decision to continue treatment simply maintains the status quo. An erroneous decision to stop such treatment, however, is not susceptible to correction. 497 US 283.

[32] With respect to the notification provision, the Court observed:

It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother's liberty than on the father's. The effect of state regulation on a woman's protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman. [120 L Ed 2d 727.]

[33] The Attorney General contends that the Hobbins plaintiffs are presenting a facial challenge to the statute, and that their claim thus must fail if there is any set of circumstances under which the assisted suicide statute would be valid. United States v Salerno, 481 US 739, 745; 107 S Ct 2095; 95 L Ed 2d 697 (1987). The plaintiffs argue that Casey changed the analysis for a liberty interest, and that Salerno is not applicable. Both positions, however, assume too much. Before a facial challenge analysis can proceed, it first must be determined whether there is a constitutionally protected right. In light of our decision that there is no liberty interest in committing suicide, it is unnecessary for us to determine the proper analysis.

[34] No clear definition of "terminal illness" is medically or legally possible, since only in hindsight is it known with certainty when someone is going to die. One definition that has been suggested is an illness so progressed that death is likely within twelve months. Note, A failed statute, Geoffrey Feiger, and the phrenetic physician: Physician-assisted suicide in Michigan and a patient-oriented alternative, 28 Val Univ L R 1415, 1434, n 121 (1994). Another definition appears in MCL 333.21417; MSA 14.15(21417), which concerns eligibility for admission to a hospice:

An individual shall be considered to have a disease or condition with a terminal prognosis if, in the opinion of a physician, the individual's death is anticipated within 6 months after the date of admission to the hospice.

[35] An attempt to find a liberty interest in assisted suicide independent of a liberty interest in suicide itself cannot succeed. If the Due Process Clause does not encompass a fundamental right to end one's life, it cannot encompass a right to assistance in ending one's life.

[36] One commentator points out that assertion of a right of personal autonomy begs the question, "`[a]utonomy to do what?'" Tsarouhas, The case against legal assisted suicide, 20 Ohio N U L R 793, 803 (1994).

[37] While acknowledging that the state may regulate assistance in suicide, or even actively discourage one from committing suicide, in order to advance its interest in preserving life, the proponents of assisted suicide maintain that the state's legitimate interest does not extend to prolonging suffering of the terminally ill by criminalizing suicide assistance. We find it unnecessary to consider the proper reach of the state's regulatory interest because we disagree with the foundational premise that there exists a constitutionally protected liberty interest to commit suicide.

[38] Appeal pending in the United States Court of Appeals for the Ninth Circuit (Docket No. 94-35534).

[39] The federal court appears to have limited its ruling to situations in which the person who wants to die performs the final act that actually brings about death. The case concerned the right to commit suicide "by taking a lethal dose of physician-prescribed drugs." Id. at 1456.

[40] The court recognized that the Supreme Court only had "assumed" such an interest in Cruzan for purposes of analysis, but expressed confidence that if the issue was squarely presented, such a right would be found.

[41] In this regard, we observe that a right of personal autonomy cannot exist independent of a recognition of human dignity, and that it would violate the concept of human dignity to measure the value of a person's life by that person's physical and mental condition. See Cruzan, 497 US 282. Further, because all persons possess a basic right to personal autonomy, regardless of their physical or mental condition, there would be no principled basis for restricting a right to commit suicide to the terminally ill. The inevitability of death adds nothing to the constitutional analysis.

[42] Further, the Cruzan Court was careful not to extend its decision in that case even to other issues concerning medical treatment:

[I]n deciding "a question of such magnitude and importance ... it is the [better] part of wisdom not to attempt, by any general statement, to cover every possible phase of the subject." [497 US 277-278.]

[43] Professor Kamisar suggests that the distinction is based more on historical and pragmatic compromise than on logic. He reasons that what is at issue are what Dean Guido Calabresi of Yale Law School called "tragic choices," i.e., choices that confront us when fundamental beliefs clash. The goal is to find "solutions that permit us to assert that we are cleaving to both beliefs in conflict." Concerning the issue of refusing to begin or to continue life-sustaining medical treatment, the conflict is between (a) respecting a patient's wishes, relieving suffering, and putting an end to seemingly futile medical treatment, and (b) affirming the supreme value of life and maintaining the salutary principle that the law protects all human life, no matter how poor the quality. The professor concludes that the distinction between assisted suicide and "letting die" is not perfectly neat and logical, then asks, "But what line is?" Kamisar, After assisted suicide, what next?, Texas Lawyer (June 13, 1994), pp 1-2.

[44] A close examination of the medical-treatment cases suggests that they do not establish a right to choose "nonlife" at all, but rather a right to choose life's natural progression — a progression that, without fail, includes for everyone the process of dying.

[45] One dissenting justice, for instance, accused the court of deciding "to play God." 411 Mass 525. He complained that the court had involved itself in the matter ostensibly to protect the interests of the vulnerable, but then had taken advantage of the patient's vulnerability "to fashion an argument that she is a social, medical and familial burden and that her simple, fundamental needs should no longer be met." 411 Mass 529. Two other dissenters said that the majority, in effect, had approved the notion of suicide. They wrote:

Society's respect for the value of every human life without reference to its condition, the cornerstone of American law, is inconsistent with a State's recognition of a legal right to commit suicide, assist suicide, or engage in voluntary euthanasia (mercy killing in accordance with the wishes of the suffering person). "The life of those to whom life has become a burden — of those who are hopelessly diseased or fatally wounded — nay, even the lives of criminals condemned to death, are under the protection of the law, equally as the lives of those who are in the full tide of life's enjoyment, and anxious to continue to live." Recognition of the dignity of human life demands resistance, rather than concession, to the real or imaginary death wishes of those who are afflicted with pain, depression, a sense of personal worthlessness, or a sense of burdensomeness to others. A humane society provides support of every kind, including moral support, to those who are burdened in order that they may live. .. .

Can it reasonably be doubted that legal acceptance of suicide, assisted suicide, and voluntary euthanasia presents a serious risk that acceptance of involuntary euthanasia (mercy killing not chosen by the affected individual) is soon to follow? [411 Mass 531-532. Citation omitted.]

[46] See also Michael H v Gerald D, 491 US 110, 121-122; 109 S Ct 2333; 105 L Ed 2d 91 (1989).

[47] As suggested by various amici curiae, it is important to the analysis of substantive due process that the asserted right be framed in a precise and neutral manner. This is critical in cases involving end-of-life questions, which are particularly susceptible to emotion-laden terminology and flawed syllogisms. The approach of the United States Supreme Court in assessing whether a proposed right is "fundamental" has been to narrow the threshold inquiry by applying three principles: (1) the focus should be on the specific activity that proponents argue is protected by the constitution, taking into account all relevant facts, (2) the formulation should not be so broad as to encompass activities that are logically distinct and involve separate considerations, and (3) the formulation should reasonably accommodate all of the interest at stake. Bopp & Coleson, Webster and the future of substantive due process, 28 Duq L R 271, 281-291 (1990). See Webster v Reproductive Health Services, 492 US 490; 109 S Ct 3040; 106 L Ed 2d 410 (1989).

The question presented in this case thus is not whether a person has a constitutional right of self-determination, or a right to define personal existence, or a right to make intimate and personal choices, or a right not to suffer. Rather, the question that we must decide is whether the constitution encompasses a right to commit suicide and, if so, whether it includes a right to assistance.

[48] Poe v Ullman, 367 US 497, 542; 81 S Ct 1752; 6 L Ed 2d 989 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds).

[49] At common law, suicide sometimes was referred to as "self murder." Consequences included the forfeiture of property and an ignominious burial. Tsarouhas, n 36 supra at 795, citing Glanville, The Sanctity of Life and the Criminal Law, 261-262 (1957), and 4 Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1769), pp 189, 190.

[50] There is no historical exception for physician-assisted suicide. To the contrary, such involvement traditionally has been regarded as contrary to the Hippocratic oath, which includes the following sentence: "`To please no one will I prescribe a deadly drug, nor give advice which may cause his death.'" Steadman's Medical Dictionary (5th Unabridged Lawyers' Ed), p 650.

[51] Alaska, Alas Stat 11.41.120(a)(2); Arizona, Ariz Rev Stat Ann 13-1103(A)(3); Arkansas, Ark Code Ann 5-10-104(a)(2); California, Cal Penal Code 401; Colorado, Colo Rev Stat 18-3-104(1)(b); Connecticut, Conn Gen Stat Ann 53a-56(a)(2); Delaware, Del Code Ann, tit 11, § 645; Florida, Fla Stat Ann 782.08; Georgia, Ga Code Ann 16-5-5(b); Hawaii, Hawaii Rev Stat 707-702(1)(b); Illinois, III Comp Stat Ann, ch 720, § 5/12-31; Indiana, Ind Stat Ann XX-XX-X-X; Kansas, Kan Stat Ann 21-3406; Kentucky, Ky Rev Stat Ann 216.302; Maine, Me Rev Stat Ann, tit 17-A, § 204, Michigan, Act of December 15, 1992, 1992 PA 270 (creating Michigan commission on death and dying and prohibiting certain acts pertaining to suicide assistance); Minnesota, Minn Stat Ann 609.215; Mississippi, Miss Code Ann 97-3-49; Missouri, Mo Ann Stat 565.023; Montana, Mont Code Ann 45-5-105; Nebraska, Neb Rev Stat 28-307; New Hampshire, NH Rev Stat Ann 630:4; New Jersey, NJ Stat Ann 2C:11-6; New Mexico, NM Stat Ann 30-2-4; New York, NY Penal Law 120.30; North Dakota, ND Cent Code 12.1-16-04; Oklahoma, Okla Stat Ann, tit 21, §§ 813 to 818; Pennsylvania, 18 Pa Cons Stat Ann 2505; Puerto Rico, PR Laws Ann, tit 33, § 4009; South Dakota, SD Cod Laws Ann 22-16-37; Tennessee, Tenn Code Ann XX-XX-XXX; Texas, Tex Penal Code Ann 22.08; Virgin Island, VI Code, tit 14, § 2141; Washington, Wash Rev Code Ann 9A.36.060; and Wisconsin, Wis Stat Ann 940.12. The State of Oregon also has a statute that forbids assisted suicide. Or Rev Stat 163.125(1)(b). However, we note that Oregon voters passed a ballot initiative called the Death with Dignity Act on November 8, 1994. The act, which permits physicians, under certain circumstances, to prescribe lethal medication for terminally ill persons, was scheduled to take effect December 8, 1994. However, a federal district court has issued a temporary restraining order pending a hearing on the matter.

[52] The Model Penal Code of the American Law Institute prohibits assisted suicide and grants a privilege to those who use force to prevent a suicide. Sections 210.5, p 91, and 3.07(5), pp 104-105.

[53] See, for example, MCL 700.496; MSA 27.5496, which permits the appointment of a "patient advocate" to act on the patient's behalf if the patient is not competent to do so. Subsection 20 of the statute states that designation of a patient advocate "shall not be construed to condone, allow, permit, authorize, or approve suicide or homicide." MCL 700.496(20); MSA 27.5496(20). Other jurisdictions with similar provisions in statutes governing durable powers of attorney in health-care situations include the District of Columbia, DC Code Ann 21-2212; Illinois, Ill Comp Stat Ann, ch 755, § 40/50; Indiana, Ind Code Ann XX-X-X-XX(b); Iowa, Iowa Code Ann 144B.12.2; Massachusetts, Mass Ann Laws, ch 201D, § 12; New York, NY Pub Health 2989(3); North Dakota, ND Cent Code 23-06.5-01; and Rhode Island, RI Gen Laws 23-4.10-9(f).

[54] Jurisdictions that have such provisions in "living will" statutes include Alabama, Ala Code 22-8A-10; Alaska, Alas Stat 18.12.080(f); Arizona, Ariz Rev Stat Ann 36-3210; Arkansas, Ark Code Ann XX-XX-XXX(g); California, Cal Health & Safety Code 7191.5(g); Colorado, Colo Rev Stat 15-18-112(1); District of Columbia, DC Code Ann 6-2430; Florida, Fla Stat Ann 765.309(1); Georgia, Ga Code Ann 88-4111(b); Hawaii, Hawaii Rev Stat 327D-13; Illinois, Ill Comp Stat Ann, ch 755, § 35/9(f); Indiana, Ind Code Ann XX-XX-X-XX; Iowa, Iowa Code Ann 144A.11.6; Kansas, Kan Stat Ann 65-28, 109; Kentucky, Ky Rev Stat Ann 311.637; Louisiana, La Rev Stat Ann 40:1299.58.10.A; Maine, Me Rev Stat Ann, tit 18-A, § 5-711(g); Maryland, Md Health Gen Code Ann 5-611(c); Minnesota, Minn Stat Ann 145B.14; Mississippi, Miss Code Ann XX-XX-XXX(2); Missouri, Mo Ann Stat 459.055(5); Montana, Mont Code Ann 50-9-205(7); Nebraska, Neb Rev Stat 20-412(7); Nevada, Nev Rev Stat Ann 449.670; New Hampshire, NH Rev Stat Ann 137-H:10(II); North Carolina, NC Gen Stat 90-320(b); North Dakota, ND Cent Code 23-06.4-01; Ohio, Ohio Rev Code Ann, tit 21, § 2133.12(D); Oklahoma, Okla Stat Ann, tit 63, § 3101.12(g); Oregon, Or Rev Stat 127.645(1); Pennsylvania, 20 Pa Cons Stat Ann 5402(b); Rhode Island, RI Gen Laws 23-4.11-10(f); South Carolina, SC Cod Ann XX-XX-XXX; South Dakota, SD Cod Laws Ann 34-12D-20; Texas, Tex Health & Safety Code Ann 672.020; Utah, Utah Code Ann XX-X-XXXX; Virginia, Va Code Ann 54.1-2990; Washington, Wash Rev Code Ann 70.122.100; West Virginia, W Va Code 16-30-10; and Wisconsin, Wis Stat Ann 154.11(6).

[55] See, e.g., MCL 330.1401(a); MSA 14.800(401)(a).

[56] Alas Stat 11.81.430(a)(4); Ark Code Ann 5-10-104(a)(2); Colo Rev Stat 18-1-703(1)(d); Hawaii Rev Stat 703-308(1); Ky Rev Stat Ann 503.100(1)(a); Mo Ann Stat 563.061(5); NH Rev Stat Ann 627:6(VI); NJ Stat Ann 2C:3-7(e); NY Penal Law 35.10(4); Or Rev Stat 161.209; 18 Pa Cons Stat Ann 508(d); Wis Stat Ann 939.48(5).

[57] For reasons apparent in our analysis of the due process claims, we also reject the argument that Michigan's assisted suicide statute is invalid because it denies equal protection to terminally ill persons who want help in ending their lives, i.e., it denies them a right enjoyed by terminally ill persons who opt to forgo or discontinue life-sustaining medical treatment. As we explained, the two situations are not the same for purposes of constitutional analysis.

[58] The Supreme Court of Canada said in Rodriguez v British Columbia, 107 DLR4th 342, 401-404 (1993), that no western democracy expressly permits assisted suicide. To the contrary, the criminal codes of most countries include a blanket ban of such conduct, and such proscriptions have not been adjudged to be unconstitutional or contrary to fundamental human rights.

[59] The right to refuse medical treatment meets the "ordered liberty" and the "historical underpinnings" tests because it is rooted in the common-law doctrine of informed consent, which embodies the notion of bodily integrity. A person may refuse life-sustaining medical treatment because the treatment itself is a violation of bodily integrity. Suicide enjoys no such foundational support, however. When one acts to end one's life, it is the intrusion of the lethal agent that violates bodily integrity.

[60] We are mindful of Justice Cardozo's admonition nearly half a century ago:

"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to `the primordial necessity of order in the social life.' Wide enough in all conscience is the field of discretion that remains." [The Nature of the Judicial Process, quoted in In re President & Directors of Georgetown College, Inc, 118 US App DC 90, 97; 331 F2d 1010 (1964) (Burger, J., concurring in dissent), cert den 377 US 978 (1964).]

[61] A large enough dose can cause the recipient to stop breathing.

[62] No one who testified at the preliminary examination actually witnessed the activation of the device. The only persons in the cabin at that time were the decedents, the defendant, and the defendant's sister, who since has died. Ms. Wantz' husband was walking away from the cabin. He testified as follows:

Q. You don't know who pulled the string?

A. I have no idea. She knew that she had to pull the string when I left.

Q. You don't know if she tried to pull the string and it didn't work and Kevorkian pushed her hand at all, do you?

A. I can say this, when I left the room she was in the process of trying to pull the string.

* * *

Q. You don't know who pulled the string? That's what you're telling me?

A. I can tell you she was in the process of trying to pull the string when I left the room, but I did not see her pull the string. The only thing I can take and tell you is once I left the room, Dr. Kevorkian did — I heard Dr. Kevorkian say, "Marj, you have to hold your hand up," and that is the only thing I know.

[63] The pathologist who performed the autopsy testified that there was a lethal level of methohexital in Ms. Wantz' blood, but that because of the body's release of potassium on death, no conclusions could be drawn regarding potassium chloride.

[64] In Campbell, the decedent and the defendant had been drinking heavily at the decedent's home. The decedent had been talking about suicide, and the fact that he did not have a gun. The defendant offered to sell the decedent a gun. At first, the decedent did not accept the offer. However, defendant Campbell persisted in alternately encouraging and ridiculing him. Eventually, the defendant provided the decedent with a gun and five shells. The defendant and the decedent's girl friend left, and some time later, the decedent shot himself. The defendant was charged with open murder.

Although the defendant failed to persuade the circuit court to quash the information, the Court of Appeals reversed. Among other things, the Court said that more recent Supreme Court decisions had "cast doubt" that Roberts remained good law. The Court also noted that the trial judge in Roberts had "assumed that a murder had occurred and considered only the degree of that crime." 124 Mich App 337.

The Campbell panel further found that the defendant did not have the required "present intention to kill." He only "hoped" that the decedent would kill himself, and "hope" is not the degree of intent required to sustain a charge of murder. Id. at 339.

[65] a court of last resort intentionally takes up, discusses and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision." Chase v American Cartage Co, Inc, 176 Wis 235, 238 (186 NW 598 [1922]). [Detroit v Public Utilities Comm, 288 Mich 267, 299-300; 286 NW 368 (1939).]

[66] Citing People v Aaron, 409 Mich 672, 713; 299 NW2d 304 (1980); Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979); Serafin v Serafin, 401 Mich 629; 275 NW2d 461 (1977); Beech Grove Investment Co v Civil Rights Comm, 380 Mich 405; 157 NW2d 213 (1968); Myers v Genesee Auditor, 375 Mich 1; 133 NW2d 190 (1965).

[67] See Marzen, supra at 79-81.

[68] See also n 51. In addition, the Model Penal Code incorporates this view:

(1) Causing Suicide as Criminal Homicide. A person may be convicted of criminal homicide for causing another to commit suicide only if he purposely causes such suicide by force, duress or deception.

(2) Aiding or Soliciting Suicide as an Independent Offense. A person who purposely aids or solicits another to commit suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor. [Model Penal Code, § 210.5.]

In commentary to its provision detailing sanctions against suicide assistance, the drafters of the Model Penal Code discussed the rationale supporting its recommendations, as well as expressing concern over the severity of the penalty imposed in Roberts:

The fact that penal sanctions will prove ineffective to deter the suicide itself does not mean that the criminal law is equally powerless to influence the behavior of those who would aid or induce another to take his own life. Moreover, in principle it would seem that the interests in the sanctity of life that are represented by the criminal homicide laws are threatened by one who expresses a willingness to participate in taking the life of another, even though the act may be accomplished with the consent, or at the request, of the suicide victim. On the other hand, cases such as People v Roberts, where a husband yielded to the urging of his incurably sick wife to provide her with the means of self-destruction, sorely test the resiliency of a principle that completely fails to take account of the claim for mitigation that such a circumstance presents. [ALI, Model Penal Code, § 210.5, comment at 100.]

[69] Because Roberts involved a guilty plea, the facts were not well developed. If in fact the defendant's only act was to prepare the poison and leave it for his wife to drink, and she did so knowingly and voluntarily, we would not find that sufficient participation to constitute murder. In the suicide setting, it is not enough that the defendant merely provided the means of death to be convicted of murder, or participated in the events leading up to the act that directly caused death if the defendant did not participate in the act that did directly cause death.

[70] However, there may be circumstances where one who recklessly or negligently provides the means by which another commits suicide could be found guilty of a lesser offense, such as involuntary manslaughter. There are a number of cases in which providing a gun to a person known to the defendant to be intoxicated and despondent or agitated has constituted sufficient recklessness to support such a conviction. For example, in People v Duffy, 79 NY2d 611, 613; 595 NE2d 814 (1992), the defendant provided a gun to the intoxicated and despondent decedent, who had said he wanted to kill himself, and urged him to "blow his head off." The decedent proceeded to shoot himself. Duffy was indicted for two counts of manslaughter in the second degree. The first count alleged that he had intentionally caused or aided the deceased in committing suicide (NY Penal Law, § 125.15[3]), and the second alleged that he had recklessly caused the death (NY Penal Law, § 125.15[1]). After a jury trial, the defendant was acquitted of the first count, but convicted of the second. The New York Court of Appeals concluded:

[T]he conduct with which defendant was charged clearly fell within the scope of section 125.15(1)'s proscription against recklessly causing the death of another person. As the People aptly observe, a person who, knowing that another is contemplating immediate suicide, deliberately prods that person to go forward and furnishes the means of bringing about death may certainly be said to have "consciously disregard[ed] a substantial and unjustifiable risk" that his actions would result in the death of that person.... [79 NY2d 614.]

See also State v Bier, 181 Mont 27; 591 P2d 1115 (1979); Persampieri v Commonwealth, 343 Mass 19; 175 NE2d 387 (1961); State v Marti, 290 NW2d 570 (Iowa, 1980).

[71] Suicide is, by definition, the killing of oneself. Our analysis recognizes a distinction between killing oneself and being killed by another. Because suicide is not murder and is no longer viewed as criminal, see above at p 477, assisting suicide is its own species of crime.

Our opinion would leave undisturbed the law of aiding and abetting because aiding and abetting necessarily requires the commission of an offense by a principal. See People v Kelly, 423 Mich 261; 378 NW2d 365 (1985).

[72] See State v Carney, 69 NJL 478, 480; 55 A 44 (1903) (concluding that a failed attempt at suicide was criminal under the New Jersey saving clause, which made all "offenses of an indictable nature at common law," not otherwise provided for, misdemeanors); State v Willis, 255 NC 473; 121 SE2d 854 (1961) (finding an attempt to commit suicide to be an indictable misdemeanor under North Carolina's saving clause).

[73] A lower court's ruling on a motion to quash involving factual matters is reviewed by an appellate court for an abuse of discretion, and rulings regarding issues of law are reversed if erroneous. People v Thomas, 438 Mich 448, 452; 475 NW2d 288 (1991).

[74] Remanding to the circuit court for reconsideration of the motion to quash will not usurp the fact-finding function of the ultimate trier of fact. Bindover decisions by magistrates, and the review of those decisions by trial courts, necessarily involve preliminary factual determinations, although the standard to be employed is one of probable cause rather than guilt beyond a reasonable doubt. MCR 6.110(E).

[1] Const 1963, art 4, § 24.

[2] Poe v Ullman, 367 US 497, 542; 81 S Ct 1752; 6 L Ed 2d 989 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds).

[3] MCL 750.505; MSA 28.773.

[4] The line drawn today is a far less merciful one than recognizing that there is much that could and should be done for those who are truly suffering, or who, for a variety of reasons, have come to see themselves as irrelevant in this brave new world.

[5] In addition, the court in Joseph G was concerned with the interpretation of a statutory proscription against assisting suicide, rather than the propriety of charging common-law murder as is present in the instant case.

[6] We do not reach the question whether People v Roberts, supra, should be reconsidered insofar as it might apply to one who is absent when the means furnished is consumed by the deceased. Roberts is factually dissimilar from the instant cases. The question whether the acts in this case constituted a common-law crime not incorporated by our criminal statutes is likewise not before us. We note, however, that the Court in Roberts did not find it necessary to determine if suicide was a crime (although unpunishable) in Michigan. The Court's exclusive reliance on Blackburn v State, 23 Ohio St 146 (1872), may have obscured the fact that, unlike the Michigan statutory scheme, the Ohio statutes did not contain a saving clause. See State v Carney, 69 NJL 478, 480; 55 A 44 (1903). The Roberts definition of murder correctly states the common law embodied in our homicide statutes.

[7] The lead opinion is willing, ante at 494, n 70, to recognize that one who negligently furnishes the means by which another commits suicide could be found guilty of manslaughter. Thus, one who is only criminally careless and does not participate at all may be found guilty of a fifteen-year felony, while one who is present and participates in the events leading up to the act that directly caused death with the intent to cause death can only be charged with assisted suicide, punishable by a maximum penalty of five years. Moreover, since an act of suicide is innocent, it would follow that one who attempts and fails but kills others in the process may not be charged with any offense.

[8] Ante at 495, n 71.

[9] See, generally, id. at 735-751 (describing the common-law distinctions between principals and accessories), pp 756-757 (applying the distinctions in suicide cases).

[10] Const 1963, art 3, § 7. "The common law and the statute law now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed."

[1] MCL 752.1021 et seq.; MSA 28.547(121) et seq.

[2] A person who has knowledge that another person intends to commit or attempt to commit suicide and who intentionally does either of the following is guilty of criminal assistance to suicide, a felony punishable by imprisonment for not more than 4 years or by a fine of not more than $2,000.00, or both:

(a) Provides the physical means by which the other person attempts or commits suicide.

(b) Participates in a physical act by which the other person attempts or commits suicide.

(2) Subsection (1) shall not apply to withholding or withdrawing medical treatment.

(3) Subsection (1) does not apply to prescribing, dispensing, or administering medications or procedures if the intent is to relieve pain or discomfort and not to cause death, even if the medication or procedure may hasten or increase the risk of death.

(4) This section shall take effect February 25, 1993.

(5) This section is repealed effective 6 months after the date the commission makes its recommendations to the legislature pursuant to section 4. [MCL 752.1027; MSA 28.547(127).]

[3] The Michigan Constitution provides:

No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title. [Const 1963, art 4, § 24.]

[4] person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court. [MCL 750.505; MSA 28.773.]

[5] The Fourteenth Amendment provides in part:

[N]or shall any State deprive any person of life, liberty, or property, without due process of law....

[6] The memorandum opinion states:

2) The United States Constitution does not prohibit a state from imposing criminal penalties on one who assists another in committing suicide. (CAVANAGH, C.J., and BRICKLEY, BOYLE, RILEY, and GRIFFIN, JJ.) [Ante, p 445.]

I join in that statement insofar as such penalties are imposed on one who assists a physically healthy but mentally disturbed or incompetent person to commit suicide, but do not join insofar as such penalties are imposed for providing medical assistance to commit suicide to a competent, terminally ill person facing an imminent agonizing death.

[7] See n 4 and accompanying text, and the lead opinion, ante, pp 494-495.

[8] A person who purposely causes another to commit suicide by force, duress or deception may be prosecuted for murder. See ALI, Model Penal Code, § 210.5(1), pp 91 ff.

[9] Ante, p 494.

[10] See opinion of MALLETT, J. (concurring in part and dissenting in part).

[11] Guidelines for State Court Decision Making In Life-Sustaining Medical Treatment, National Center for State Courts (2d ed) (1992).

[12] See subsection 2 of § 7 of act 3, n 2 supra, which provides that subsection 1 of § 7 of act 3 "shall not apply to withholding or withdrawing medical treatment."

[13] Ante, p 464.

The lead opinion similarly states:

All the theories, of course, assume a fundamental liberty interest in suicide itself. [Ante, p 468.]

The lead opinion reasons in an accompanying footnote:

An attempt to find a liberty interest in assisted suicide independent of a liberty interest in suicide itself cannot succeed. If the Due Process Clause does not encompass a fundamental right to end one's life, it cannot encompass a right to assistance in ending one's life. [Ante, p 468, n 35.]

See also second paragraph of n 47 on p 476.

[14] Ante, p 470.

[15] Casey, supra, 112 S Ct 2806, opinion of O'Connor, Kennedy, and Souter.

[16] In Cruzan, the Court said:

Petitioners insist that under the general holdings of our cases, the forced administration of life-sustaining medical treatment, and even of artificially delivered food and water essential to life, would implicate a competent person's liberty interest. Although we think the logic of the cases discussed above would embrace such a liberty interest, the dramatic consequences involved in refusal of such treatment would inform the inquiry as to whether the deprivation of that interest is constitutionally permissible. But for purposes of this case, we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition. [497 US 279.]

[17] The Casey plurality reaffirmed the following view of the Due Process Clause:

"Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society.... The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing." [Id., 112 S Ct 2806 (quoting Poe v Ullman, 367 US 497, 542; 81 S Ct 1752; 6 L Ed 2d 989 [1961] [Harlan, J., dissenting from dismissal on jurisdictional grounds]).]

[18] As the lead opinion observes, the United States Supreme Court premised this right on the right to refuse medical treatment. Ante, p 465, n 29. This right was derived as a corollary to the common-law notion of informed consent. Cruzan, supra at 269-272. In addition, this right was framed in terms of a protected "liberty" interest, rather than under the right to privacy. Id. at 279, n 7.

[19] And in Quinlan.

[20] Id. at 280-281.

[21] Id. at 283.

[22] See part VII.

[23] Id., 112 S Ct 2817.

[24] Id., 112 S Ct 2820.

The plurality stated that "[a] finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Id., 112 S Ct 2820.

[25] Id. at 283.

[26] The state and amici assert other interests, such as preserving the integrity of the medical profession and protecting friends and family of the suicide from emotional harm as balancing against the liberty interest recognized here. Whether these interests weigh in favor or against permitting a terminally ill person to end his own life depends on the particular circumstances of a given case. It is by no means clear that these interests would always be in opposition to the terminally ill person's liberty interest.

[27] It has been said that it is questionable why such an interest is legitimate, "completely abstracted from the interest of the person living that life...." Cruzan, supra at 313. (Brennan, J., dissenting). But the Cruzan majority decided that government "may properly decline to make judgments about the "quality" of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life...." Id. at 282.

[28] See n 10.

[29] See Casey, 112 S Ct 2820.

[30] Ante, p 468, n 34.

[31] As stated in Casey:

Consistent with other constitutional norms, legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw. And there is no line other than viability which is more workable. To be sure, as we have said, there may be some medical developments that affect the precise point of viability, ... but this is an imprecision within tolerable limits given that the medical community and all those who must apply its discoveries will continue to explore the matter. [Id., 112 S Ct 2817.]

[1] In Griswold v Connecticut, 381 US 479, 500-501; 85 S Ct 1678; 14 L Ed 2d 510 (1965), in concurrence, Justice Harlan outlined the criteria for reviewing constitutional claims brought pursuant to the Due Process Clause stating that

the proper constitutional inquiry in this case is whether [the] statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values "implicit in the concept of ordered liberty,"....

While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. [Citations omitted.]

* * *

"Specific" provisions of the Constitution, no less than "due process," lend themselves as readily to "personal" interpretations by judges whose constitutional outlook is simply to keep the Constitution in supposed "tune with the times"....

[2] The right that should be recognized here is a privacy right as well as a liberty right. In Griswold, supra, the United States Supreme Court recognized that decisions of married couples concerning procreation are private in character. In Thornburgh v American College of Obstetricians & Gynecologists, 476 US 747, 777, n 5; 106 S Ct 2169; 90 L Ed 2d 779 (1986), Justice Stevens observed that "the concept of privacy embodies the `moral fact that a person belongs to himself and not others nor to society as a whole.'"

The present case is also analogous to the family or bodily integrity cases to the extent these cases extended liberty interests to matters of public social concern. In Washington v Harper, 494 US 210; 110 S Ct 1028; 108 L Ed 2d 178 (1990), the Court found that an inmate has a significant liberty interest under the Due Process Clause in avoiding the unwanted administration of drugs. However, the Court found that the state's compelling interest outweighed the inmate's personal liberty interest. In Loving v Virginia, 388 US 1; 87 S Ct 1817; 18 L Ed 2d 1010 (1967), the Court held that couples have a liberty interest to marry outside of their own race.

[3] The United States Constitution does not, nor could it, specifically spell out each right a person maintains as an individual. The application of the express constitutional principles embodied in the Bill of Rights resolves only the easiest cases. Emanating from these principles, however, are implied rights and interests that are no less important to individual liberties than those specifically provided in the Bill of Rights. Griswold v Connecticut, n 1 supra. These rights lie within the parameters of the Bill of Rights, applicable to the states through the Fourteenth Amendment.

Under the First Amendment, these unarticulated rights include the freedom to associate and privacy in one's associations, NAACP v Alabama ex rel Patterson, 357 US 449, 462; 78 S Ct 1163; 2 L Ed 2d 1488 (1958); the right to educate a child in a school of the parent's choice, Pierce v Society of Sisters, 268 US 510; 45 S Ct 571; 69 L Ed 1070 (1925); and the right to study the German language in a private school, Meyer v Nebraska, 262 US 390; 43 S Ct 625; 67 L Ed 1042 (1923). Tangential to the Fourth Amendment right to be free from unlawful search and seizure is a limited right to be free from the unlawful withdrawal of blood. Schmerber v California, 384 US 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966). Attached to the Ninth Amendment is the historical recognition that additional rights exist outside the constitution's plain wording.

The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. [Griswold, supra at 488 (Goldberg, J., concurring).]

The concept that courts may construct new liberty rights pursuant to the Fourteenth Amendment is well established. Pursuant to the Fourteenth Amendment, there is a fundamental right to marry a person of another race. Loving v Virginia, supra. Married persons have the right to receive medical advice regarding contraception. Griswold v Connecticut, supra; Eisenstadt v Baird, 405 US 438; 92 S Ct 1029; 31 L Ed 2d 349 (1972) (extending the right to unmarried persons); Carey v Population Services Int'l, 431 US 678; 97 S Ct 2010; 52 L Ed 2d 675 (1977) (recognizing the right to sell and distribute contraceptives).

Also pursuant to the Fourteenth Amendment is the line of cases protecting a person's right of personal autonomy and self-determination. Part of the right to personal autonomy is the right to refuse unwanted medical treatment, Washington v Harper, supra, and of course the right to receive an abortion, Roe v Wade, 410 US 113; 93 S Ct 705; 35 L Ed 2d 147 (1973); Casey, supra.

This is not an exhaustive list of the rights that lie within the penumbras of the Bill of Rights, both in terms of the cases already decided as well as those to be decided in the future. As Justice Harlan declared in dissent in Poe v Ullman, 367 US 497, 543; 81 S Ct 1752; 6 L Ed 2d 989 (1961), these matters fall all along the "rational continuum" of rights. It is a mistake to focus on whether physician-assisted suicide is a right textually demonstrable within the body of the constitution.

The individual liberty interest in ending one's suffering during terminal illness lies within the penumbras of the Ninth and Fourteenth Amendments. Furthermore, there is a privacy right emanating from the Fourteenth Amendment to seek guidance from a physician of choice so that an informed and knowledgeable decision can be made. As with the right to abortion, the right in the present case may be identified either as a privacy or liberty right.

[4] Indeed there is a great deal of historical antecedence for the proposition that abortion is a criminal offense. See Roe at 129-141 (tracing the criminal history of abortion).

[5] See In re Rosebush, 195 Mich App 675; 491 NW2d 633 (1992) (allowing the parents of a minor the right to determine whether life-sustaining treatment should be withheld or withdrawn from the minor). See also In re Conroy, 98 NJ 321; 486 A2d 1209 (1985); Donaldson v Lundgren, 2 Cal App 4th 1614, 1620; 4 Cal Rptr 2d 59 (1992); In re Quinlan, supra; Cruzan, supra at 270-274. See also anno: Judicial power to order discontinuance of life-sustaining treatment, 48 ALR4th 67.

[6] However, the Court ultimately held that the state's interest in preserving the orderly administration of its prisons and mental institutions outweighed the inmate's right of personal autonomy. Id.

[7] See Brophy v New England Sinai Hosp, 398 Mass 417, 434; 497 NE2d 626 (1986). "The duty of the State to preserve life must encompass a recognition of an individual's right to avoid circumstances in which the individual himself would feel that efforts to sustain life demean or degrade his humanity." See also Cruzan at 310-311.

This state also protects the rights of the terminally ill to refuse life-sustaining treatment as evidenced by the statutory allowance of a patient advocate to make a decision to withhold or withdraw treatment.

A patient advocate may make a decision to withhold or withdraw treatment which would allow a patient to die only if the patient has expressed in a clear and convincing manner that the patient advocate is authorized to make such a decision, and that the patient acknowledges that such a decision could or would allow the patient's death. [MCL 700.496(7)(d); MSA 27.5496(7)(d).]

[8] Recent polls show increasing support for physician-assisted suicide under certain circumstances. In August, 1993, the Journal of Family Practice reported on a survey conducted by the Harvard School of Public Health that 61 percent of all Americans would vote for an initiative legalizing physician-assisted suicide. Furthermore, 52 percent of Americans would consider such an option if it was legal and they were terminally ill and suffering from great pain.

This sentiment also has support among the medical communities of the United States and other westernized nations. A survey of 156 internists and surgeons revealed that 61 percent agreed that doctors were currently practicing euthanasia by either accelerating death or withholding treatment. See Messinger, A gentle and easy death: From ancient Greece to beyond Cruzan toward a reasoned legal response to the societal dilemma of euthanasia, 71 Den U L R 175, 201 (1993). Out of 354 physicians responding to a survey conducted by the Medical Journal of Australia, 107 had provided the means by which patients could hasten their deaths. However, the number was twice as high for physicians who thought the law should be changed to allow it in some circumstances. In Britain, 273 physicians responded to a similar survey, and over half would consider physician-assisted suicide in some circumstances if it were legal.

Most recently, voters in the State of Oregon approved a referendum (the Death with Dignity Act) that would allow physician-assisted suicide under carefully regulated circumstances. Physicians may prescribe suicide pills to patients with less than six months to live, but only after a second medical opinion and three requests from the patient are received. The patient must also be mentally competent and free from clinical depression.

[9] In Casey, 112 S Ct 2804, the Court reaffirmed Roe's essential three-part holding:

First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

[10] In the only other case directly addressing the constitutionality of an assisted suicide law, Compassion in Dying v Washington, supra, the court was asked to rule on the constitutionality of the State of Washington's assisted suicide law.

The court stated that abortion raises even more difficult questions about competing interests than does suicide by the terminally ill. "In reproductive rights cases, there is not only the interest of the pregnant woman seeking an abortion, but also the potential life interest which cannot speak for itself. By contrast, in the case of assisted suicide involving a competent person, only one life is involved and that individual can voice his or her wishes." Id. at 1460. Significantly, the court found that the "concept of existence" language from Casey was "almost prescriptive" of recognizing the right of an individual to commit suicide. Id. at 1459, citing Casey, supra, 112 S Ct 2807.

The court concluded:

"[T]he suffering of a terminally ill person cannot be deemed any less intimate or personal, or any less deserving of protection from unwarranted governmental interference, than that of a pregnant woman. Thus, consonant with the reasoning in Casey, such an intimate personal decision falls within the realm of the liberties constitutionally protected under the Fourteenth Amendment." [Id. at 1460. Emphasis added.]

[11] I have signed my colleague's opinion (LEVIN, J., concurring in part and dissenting in part), and recognize that a person who is terminally ill and suffering from great pain and is facing an imminent death falls within the confines of the due process right I would recognize here.

[12] See also Quinlan, supra at 41.

We think that the State's interest ... weakens and the individual's right to privacy grows as the degree of bodily invasion increases and the prognosis dims. Ultimately there comes a point at which the individual's rights overcome the State interest.

Moreover, in the abortion context, "Roe v Wade was less a judgment about the relative importance of maternal liberty and fetal life, than it was a decision about who should make judgments of that sort." Tribe, Constitutional Law, supra, p 1352 (contending that the decision is personal to the mother, not the state). Here, it is the individual who, in the appropriate circumstances, should make the decision to hasten death through physician-prescribed medications.

[13] common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment. [Cruzan, supra at 277.]

246 N.Y. 334, 158 N.E. 888, 55 A.L.R. 711

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

CHARLES Rlzzo, Appellant, Impleaded with Others.

Court of Appeals of New York.

Argued October 17, 1927.

Decided November 22, 1927.

Crimes -- attempt to commit robbery -- construction of section 2 of Penal Law defining attempt to commit crime defendants who planned intended robbery and started to look for victim but never reached him improperly convicted of attempt to commit robbery.

1. In construing section 2 of the Penal Law, providing that an act done with intent to commit a. crime, and tending but failing to effect its commission, is an attempt to commit that crime, the law has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference.

2. Defendants, therefore, who had planned and started in an automobile to commit a robbery but were arrested before they had found or reached the presence of the person they intended to rob, were not guilty of the crime of attempt to commit robbery in the first degree, and their conviction for that crime was improper. It cannot be said that their acts came so near the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference.

People v. Rizzo, 221 App. Div. 353, reversed.

(Argued October 17, 1927; decided November 22, 1927.)

APPEAL, by permission, from a, judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1927, which affirmed a judgment of the Bronx County Court entered upon a verdict convicting the defendant of the crime of attempted robbery in the first degree.

James F. Donnelly, Mark Eisner and Merwin Lewis for appellant. The evidence failed to establish the crime. John E. McGeehan, District Attorney (George B. De Luca, I. J. P. Adlerman and Herman J. Fleiderblum of counsel), for respondent. The evidence was sufficient to establish an attempted robbery. (People v. Gardner, 144 N. Y. 119; People v. Spolasco, 33 Misc. Rep.22; People v. Moran, 123 N. Y. 254; People v. Sullivan, 173 N. Y. 122; Commonwealth v. Peaslee, 177 Mass. 267; State v. Hurley, 64 Atl. Rep. 78; People v. Stiles, 75 Cal. 570; U. S. v. Stephens, 12 Fed. Rep. 52; People V. Bush, 4 Hill, 133; McDermott v. People, 5 Park. Cr. Rep. 102; People v. Lawton, 56 Barb. 126; People v. O’C0nnell, 60 Hun, 109.)

CRANE, J.

The police of the city of New York did excellent work in this case by preventing the commission of a serious crime. It is a great satisfaction to realize that we have such wide­-awake guardians of our peace. Whether or not the steps which the defendant had taken up to the time of his arrest amounted to the commission of at crime, as defined by our law, is, however, another matter. He has been convicted of an attempt to commit the crime of robbery in the first degree and sentenced to State’s prison. There is no. doubt that he had the intention to commit robbery if he got the chance. An examination, however, of the facts is necessary to determine whether his acts were in preparation to commit the crime if the opportunity offered, or constituted a crime in itself, known to our law as an attempt to commit robbery in the first degree. Charles Rizzo, the defendant, appellant, with three others, Anthony Dorio, Thomas Milo and John Thomasello, on January 14th planned to rob one Charles Rao of a, payroll valued at about $31,200 which he was to carry from the bank for the United Lathing Company. These defendants, two of whom had firearms, started out in an automobile, looking for Rao or the had the payroll on that day. Rizzo claimed to be able to identify the man and was to point him out to the others who were to do the actual holding up. . The four rode about in their car looking for Rao. They went to the bank from which he was supposed to get the money and to various buildings being constructed by the United Lathing Company. At last they came to One Hundred and Eightieth street and Morris Park avenue. By this time they were watched and followed by two police officers. As Rizzo jumped out of the car and ran into the building all- four were arrested. The defendant was taken out from the building in which he was hiding. Neither Rao nor a man named Previti, who was also supposed to carry a payroll, were at the place at the time of the arrest. The defendants had not found or seen the man they intended to rob; no person with a payroll was at any of the places where they had stopped no one had been pointed out or identified by Rizzo. The four `men intended to rob the payroll man, whoever he was; they were looking for him, but they had not seen or discovered him up to the time they were arrested.

Does this constitute the crime of an attempt to commit robbery in the first degree? The Penal Law, section 2, prescribes, An act, done with intent to commit a crime, and tending but failing to effect its commission, is "an attempt to commit that crime". The word tending is very indefinite. It is perfectly evident that there will arise differences of opinion as to whether an act in a, given case is one tending. to commit a crime. Tending means to exert activity in a particular direction. Any act in preparation to commit a crime may be said to have a tendency towards its accomplishment. The procuring of the automobile, searching the streets looking for the desired victim, were in reality acts tending toward the commission of the proposed crime. The law, however, has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law must be practical, and, therefore, considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would, have been committed but for timely interference." The cases which have been before the courts express this idea in different language, but the idea remains the same. The act or acts must come or advance very near to the accomplishment of the intended crime. In People Mills (178 N. Y. 274,284) it was said: “Felonious intent alone is not enough, but there must be an overt: act shown in order to establish even an attempt. An overt act is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause.” In Hyde V. U. S. (225 U. S. 347) it was stated that the act amounts to an attempt when it is so near to the result that the danger, of success is very great. There must be dangerous proximity to success.” Halsbury in his Laws of England” (Vol. IX, p. 259) says: “An act, in order to be a criminal attempt, must be immediately, and not remotely, connected with and directly tending to the commission of an offence.” Commonwealth V. Peaslee (177 Mass. 267) refers to the acts constituting an attempt as coming very near to the accomplishment of the crime.

The method of committing or attempting crime varies in each case so that the difficulty, if any, is not with this rule of law regarding an attempt, which is well understood, but with its application to the facts. As I have said before, minds differ over proximity and the nearness of the approach. (People V. Collins, 234 N. Y. 355; People V. Sobieskoda, 235 N. Y. 411; People V. Werblow, 241 N.Y. 55.)

How shall we apply this rule of immediate nearness to this case? The defendants were looking fort the payroll man to rob him of his money. This is the charge -in the indictment. Robbery is defined in section 2120 of the Penal Law as the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to his person; and it is made robbery in the first degree by section 2124 when committed by a person aided by accomplices actually present. To constitute the crime of- robbery the money must have been taken from Rao by means of force or violence, or through fear. The crime of attempt to commit robbery was committed if these defendants did any act tending to the commission of this robbery. Did the acts above describe come dangerously near to the taking of Rao’s property? Did the acts come so near the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference? Rao was not found the defendants were still looking for him; no attempt to rob him could be made, at least until he came in sight; he was not in the building at One Hundred and Eightieth street and Morris Park avenue. There was no man there with the payroll for the United Lathing Company whom these defendants could rob. Apparently no money had been drawn from the bank for the payroll by anybody at the time of the arrest. In a word, these defendants had planned to commit a crime and were looking around the city for an opportunity to commit it, but the opportunity fortunately never came. Men would not be guilty of an attempt at burglary if they had planned to break into a building and were arrested while they were hunting about the streets for the building not knowing where it was. Neither would a man be guilty of an attempt to commit murder if he armed himself and started out to find the person whom he had planned to kill but could not him. So here these defendants were not guilty of an attempt to commit robbery in the first degree when they had not found or reached the presence of the person they intended to rob. (People v. Sullivan, 173 N. Y. 122, 135.)

For these reasons, the judgment of conviction of this defendant, appellant, must be reversed and a new trial granted.
A very strange situation has arisen in this case.. I called attention to the four defendants who were convicted of this crime of an attempt to commit robbery in the first degree. They were all tried together upon the same, evidence, and jointly convicted, and all sentenced to State’s prison for varying terms. Rizzo was the only` one of the four to appeal to the Appellate Division and to this court. His conviction was affirmed by the Appellate Division by a divided court, two of the justices dissenting, and we have now he1d that he was not guilty of the crime charged. If he were not guilty, neither were the other three. As the others, however, did not appeal, there is no remedy for them through the court; their judgments stand, and they must serve their sentences. This of course is a situation which must in all fairness be met in some way. Two of these men were guilty of the crime of carrying weapons, pistols, contrary to law, for which they could be convicted. Two of them, John Thomasello and Thomas Milo, had also been previously convicted, which may have had something to do with their neglect to appeal. However, the law would fail in its function and its purpose if it permitted these three men whoever or whatever they are to serve a sentence for a crime which the courts subsequently found and declared had not been committed. We, therefore, suggest to the district attorney of Bronx county that he bring the cases of these three men to the attention of the Governor to be dealt with as to him seems proper in the light of this opinion.

The judgment of the Appellate Division and that of the County Court should be reversed and a new trial ordered.

KELLOGG and O’BR1EN, JJ., concur.

Judgment accordingly.

319 Mo 1222
6 S.W. (2d) 609

THE STATE
v.
CARL B DAVIS, Appellant

Court en Banc
May 18, 1928.

[1226] The jury returned a verdict fixing his punishment at imprisonment in the penitentiary for a term of eight years, which the trial court reduced to five years, sentencing him to that term. Defendant duly appealed from the judgment entered accordingly.

On the hearing before us defendant accepted the facts as outlined by the Attorney-General in his brief, as a true recital of the evidence adduced. The evidence submitted on the part of the State warrants the finding that defendant and Alberdina Lourie resided in Kansas City. They were seemingly infatuated with each other, planning and arranging to have Edmon Lourie, the husband of AIberdina, killed, so that they could obtain the insurance on his life; aggregating sixty thousand dollars, as well as cohabit. Edmon Lourie was absent from home the greater part of the time, returning at intervals of two or: three weeks In furtherance of their plan defendant, acting for himself and Alberdina, arranged to have one Earl Leverton obtain for them the services of an ex-convict to murder Edmon Lourie for hire. Leverton, instead of procuring the services of an ex-convict for that purpose, disclosed the plot to Joel L. Dill, a member of the Kansas City police force, who agreed to pose as an ex-convict to that end. Several meetings were had between defendant, Leverton and Dill, defendant stating that he and Alberdina were in love and desired Edmon Lourie killed. He agreed to pay for the execution of the plot. Defendant outlined, his plan, offering Dill the sum of six hundred dollars, with the further agreement that AIberdina, who was to be with her husband at the time of the contemplated, assault; would wear diamonds of the value of three thousand dollars. He further arranged for Alberdina and Dill to see each other, that each might recognize the other on sight. Defendant, Dill and Leverton during January and the early part of February, 1926, held prearranged conferences, on the subject. Prior to February 11, 1926, defendant arranged for Dill to go to Chicago to kill Edmon Lourie there, defendant making and giving Dill a map or drawing showing where Lourie, could be found, as well as two photographs of him. The arrangements contemplated that if Dill was unable to locate Lourie, Alberdina would go to Chicago to aid him. The trip to Chicago was to be made about February twelfth. However, Edmon Lourie telegraphed Alberdina  that he would return to Kansas City on February 13, 1926, defendant thereupon notifying Leverton, who in turn communicated the fact to Dill. Defendant paid Dill six hundred dollars, advising him that Alberdina would persuade Edmon to accompany her to a place of amusement and that she planned to leave their home at eight o'clock P. M. on February 13, 1926. It was further planned that Alberdina was to carry the diamonds on her person, and that Dill was to shoot Lourie either as they left their home or as they returned, and that Alber[1227] dina was to be mussed up and the diamonds taken from her so that it might appear the result of a robbery. Alberdina was to appear to faint, giving Dill time to bake his escape. However, on the night of February 13, 1926, Dill, accompanied by three other police officers, proceeded about eight o 'clock P. M. to the home of Edmon Lourie as arranged. Edmon and Alberdina Lourie were there found dressed and ready to leave, with the diamonds on her person.  As Dill and the officers entered the room; she turned her face to the wall as planned.  Two officers took charge of Edmon and Alberdina,  Dill and the other officer going to the home of defendant, where they arrested him. The defendant had previously informed Dill that he would remain at home in order to have an alibi.

Upon his arrest defendant made and signed a confession in which he stated that he and Alberdina planned to have Edmon Lourie killed. In pursuance to the plan he met Dill, to whom he assumed to be an ex-convict and the subject of hire for the purpose intended. The day before the contemplated murder he gave Dill two hundred dollars, and four hundred dollars the day the murder was to be consummated, together with a picture of Edmon Lourie.  It was arranged that Dill was to go to Chicago to kill Lourie. Lourie, however, unexepectedly arranged to go home, notifying Alberdina of his intention by telegram. Thereupon Alberdina informed defendant of the fact, whereupon he notified Dill, resulting that the scene of the contemplated murder was changed to Lourie's home in Kansas City. The arrangements contemplated that Alberdina was to accompany Lourie that night to a picture show, and Dill was to stage a hold-up and kill Lourie. Alberdina agreed to remove the diamond rings from her fingers, giving them to Dill, and he was to retain them as part payment for the murder of Lourie. Lourie masqueraded under different names, among them Lourie, Frank, Payne, and Edmonds, Alberdina telling defendant that she thought  he was a master mind among criminals. The confession was made o the night of February 13, 1926. The evidence establishes that all of the acts complained of occurred in Kansas City, Jackson County, Missouri, during January and February, 1923.

The evidence on the part of defendant tends to establish that defendant was urged to agree to the arrangement by Dill and Leverton, but that after paying the money he abandoned the crime before ' an overt act was committed. There was also testimony that Alberdina, the co-conspirator, abandoned the plot, which abandonment was communicated to Dill and defendant. Defendant was addicted to; drink and had been an inmate of a sanatorium. It was asserted that all these facts were known to Dill and Leverton, who purchased and gave him liquor while persuading him to continue the plot. Such other facts as we find pertinent, if any, will later be noted.

[1228] Section 3683, Revised Statutes 1919, upon; which the indictment and prosecution are based, reads: "Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented, or intercepted in executing the same, upon conviction thereof, shall, in cases where no, provision is made by law for the punishment of such attempt, be punished as follows." The remaining portion of the section sets forth the punishment prescribed, which it is unnecessary to recite.

The sufficiency of the evidence to sustain the conviction is raised. The defining of an attempt to commit a crime and the ascertaining of its essential elements is necessary in the consideration of its essential elements is necessary in the consideration of the question. 16 Corpus Juris, page 112, in defining an attempt, says: “An attempt to commit a crime 'may be defined as an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to  consummate, all the elements of the substantive crime, so that, if not prevented, it would have resulted in the full consummation of the intended crime.” The elements of an attempt are stated in 16 Corpus Juris, page 113, thus: “An attempt to commit a crime consists of three elements: (1) The intention to commit, the crime; (2) performance of some  act  toward  the commission  of the crime; and (3) the failure to consummate its commission."

The proof adduced advises us that the only debatable question is the presence of sufficient facts to demonstrate the second element. The record develops the presence of the intent to commit  the crime and the failure to consummate its commission. We therefore dismiss the first and third elements of an attempt from further consideration. However, as there must be coincidence as to every element of the offense, the lack of one essential element demonstrates a failure to commit the crime of attempted murder. Our sole inquiry then relates to the performance of some act upon the part of defendant toward the commission of the crime.

The physical overt act, which, with intent and failure to consummate, brings the crime of attempt into existence, is distinguishable from solicitation and preparation. An attempt to commit a crime involves an act on the part of the defendant moving directly toward the commission of the offense. With these concepts in mind we proceed to review the solicitations and preparations by defendant to murder Lourie as constituting an overt act.

In State v. Hayes, 78 Mo. 307, this court through PHILIPS, C., said: “It is the recognized law of this country that the solicitation of another to commit a crime is an act toward the commission." How [1229] ever, the proof in the above case developed in addition to solicitations an act on the part of the accused extending beyond solicitation or preparation, that of saturating  a portion of  the floor with coal oil as well as, the furnishing of plans and an oil can. Conceding that the court reached the proper result in, that case, concerning which it is unnecessary to express an opinion, the basic facts there shown extend far beyond the facts here developed. While a few of the courts have treated solicitation to commit a crime as an attempt, the great weight of authority warrants the assertion that mere solicitation, unaccompanied by, an act moving directly toward the commission  of the intended crime, is not an overt act constituting an element of the crime of attempt. Solicitation of itself is a distinct offense when declared so by law. [16 C. J. 118; 8 R. C. L. 277.] Therefore, in conformity with the weight of authority, we hold that, merely soliciting one to commit a crime does not constitute an attempt.

The State contends that the arrangement of a plan for the accomplishment of the murder of Lourie and the selecting and hiring of the means or instrumentality by which the murder was to be consummated were demonstrated. We take it that the State means by the foregoing declarations that overt acts were shown. To that we do not agree. The evidence goes no further than developing a verbal arrangement with Dill, the selection of Dill as the one to kill Lourie, the delivery of a certain drawing and two photographs of Lourie to Dill and the payment of a portion of the agreed consideration. These things were mere acts of preparation failing to lead directly or proximately to the consummation of the intended crime. In this regard we have found no authority which holds that preparations constitute an overt act.

The distinguishment between the overt act and preparation is stated by FIELDs, C. J., in People v. Murray, 14 Cal. 159, reading "Between preparation for, the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.”

In Reg. v. Taylor, 1 Fost. &. F. 512, the court say: "The act to constitute a criminal attempt must be one immediately and directly tending to the execution of the principal crime, and committed by the prisoner in such, circumstances that he has the power of carrying ,his intent  into execution.”

The plans or arrangements amounted to nothing more than mere preparation. The contract of hiring entered into between defendant and Dill also fails to extend beyond mere preparation. In regard to the hiring the trial court instructed the jury that the payment of [1230] money by defendant to Dill to commit the intended crime did not constitute such an overt act as was tantamount to an attempt. The ruling of the court we think was right, for the payment of money was not an act moving directly toward the consummation of the intended crime. The only case we have found involving the actual payment of money to another as the consideration for the proposed crime is Reg. v Williams 1 Car. & K. 589, 1 Den. C. C. 39. In that case the facts develop the actual delivery of money to the agent who straight-way went with the poison given him for that purpose to the home of the intended victims. However, on his arrival he disclosed to them the plan to kill, handing over the poison. The fifteen judges who considered the case on appeal held the conviction erroneous.

The employment of Dill as agent to murder Lourie was not tantamount to an attempt. Dill not only had no intention of carrying out the expressed purpose of defendant, but was guilty of no act directly or indirectly moving toward the consummation of the intended crime. He did nothing more than listen to the plans and solicitations of defendant without intending to act upon them. It was not shown that Dill committed an act that could be construed as an attempt. The arrest of Lourie, his wife and defendant as detailed in the evidence could not be said to be an act involving the consummation of the crime. [Ex: parte Floyd, 95 Pac. 175; Hicks v. Commonwealth, 86 Va. 223, 9 S.E. 1024, 19 Am. St. 891, Stabler v. Commonwealth, 95 Pa. St. 318, 40 Am. Rep. 653; State v. Rider,  90 Mo. 54; State v. Baller, 26 W. Va. 90; People v. Youngs, 122 Mich. 292; McDade v. People, 29 Mich. 50; State v. Fraker, 148 Mo. 143, 49 S.W. 1017; State v. Harney, 101 Mo. 470, 14 S. W. 657.]

Whether it is necessary to make an actual assault before the crime of attempt can be said to come into existence, we need not decide, for the solicitations and preparations upon the part of defendant were not equivalent to an overt act which must take place before the crime of attempt comes into existence. In addition to the case of State v. Hayes, 78 Mo. 307, we have considered the case of State v. Mitchell, 170 Mo. 633; 71 S. W. 175, but do not think it is apposite to the facts here developed, for in that case the intended victim was absent from the bed where he usually slept when defendant, with intent to harm him, fired through the window into the pillow of the bed. In that case the proof shows an overt act which develops the crime.

Our statute, Section 3683, Revised Statutes 1919, in proscribing an attempt to commit an offense prohibited by law, is to be interpreted as providing that the doing of any act toward the commission of such offense shall constitute an attempt.  The statute we think follows and coincides with common law in that respect. There must be an overt act before an attempt exists and the overt act, must move direct [1231] ly in consummation of the crime, in other words, toward the commission of the offense. People v. Youngs, 122 Mich. 292, supports this ruling.

It follows from what we have said that the judgment must be reversed and the defendant discharged. It is so ordered. Higbee and Henwood, CC., concur.

PER CURIUM:—This cause coming into Court en Banc, the foregoing opinion of DAVIS, C., in Division Two, is adopted as the decision of court en Banc. Graves, Atwood and Ragland, JJ., concur; White, J., concurs in a separate opinion, in which Blair and Gantt, J.J., concur; Walker, C. J. dissents in separate opinion.

WHITE, J., (concurring).— I concur the conclusion reached in  the opinion, of DAVIS,C., and in the reasoning by which he reaches it. However, a principle of law, not referred to in the argument or the briefs, I think is the decisive of the case.

Defendant was charged with an attempt to commit murder as accessory before the fact, under Section 3687, Revised Statues 1919.He did not attempt to commit the crime himself, but hired Dill to do it. He might have been charged directly, but the proof would have been the same.

I. 

The principle of the law is this: Where one hires or incites another person to do a criminal act, he is responsible only for what the other person does. The principle thus applicable is thus stated in 16 Corpus Juris, at page 134:

“There are several things that must concur in order to justify the conviction of one as an accessory before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them, to commit the offense; (2) that he was not present when the offense was committed (3) that the principle committed the crime."

And again (pp. 134-5):  

"To constitute one an accessory before the fact, it is of course essential that the felony shall have been in fact committed by the person whom the accused is alleged to have incited or counseled, etc., and under such circumstances as to render him guilty. In other words, although the offense of the accessory is distinct from that of the principal, yet it is in judgment of law connected with it and cannot subsist without someone being guilty as principal. This principle, which is embodied in the maxim, Accessorius sequitur naturam sui principalis, appears at every point in the common-law rules regulating the indictment and trial of accessories."

A few cases illustrative of that doctrine would show the extent to which it is applied. Ray v. State, 102 Ark. 594, is where the defendant [1232] was charged as accessory before the fact in commission of murder. The court said, at page 596:

“The accessory cannot be guilty if the principal is not guilty; and he can be guilty of no other or higher grade of crime than that of which the principal is also guilty. . . .

"The guilt of the accessory before the fact is based and dependent upon the guilt of the principal; and if the principal has committed no crime, then the accessory is free from guilt. To charge an offense against the accessory, it is necessary to also charge an offense against the principal" (citing Wharton on Criminal Law, and other authorities).

In Harper v. State of Mississippi, 83 Miss. 402, defendant was charged with aiding and abetting a crime of murder. An instruction authorized the finding of defendant guilty if he was present at the time of the aiding and abetting the principal in killing the deceased. The court said:

"The error in this instruction is glaring and manifest.  . . . It omits all mention of the intention, malice or premeditation of McCormick [the principal] in killing deceased.”

The court goes on to reason that the person who actually did the killing might have acted in self-defense or killed by accident, or been guilty of manslaughter; that although the defendant, accomplice, aided and abetted the act, he could not be guilty unless the principal was guilty to the same extent.

In the case of Stoops v. Commonwealth, 10 Am. Dec. (Pa.) 482, the plaintiffs in error were indicted as accessories before the fact for the crime of burglary. The court said, at page 483:

"The offense of the accessory, though different from that of the principal, though different from that of the principal, is yet, in judgment of law, connected with it, and cannot subsist without it.”

In Gene Hall v. State, 52 Tex. Crim. 250, defendant was charged as being an accomplice in the crime of burglary. The court said (l. c. 253):

"It is not a violation of the law with reference to the conviction of an accomplice in that he simply furnished the means, advised or aided; there would be no offense  unless  the offense in contemplation was subsequently committed.”

In Brooks v. State, 103 Ga. 50, one was charged as accessory before the fact with murder. The court said: (l. c. 52):

“It is therefore necessary, before one can be found guilty as accessory before the fact, that someone must not only be charged with having perpetrated the crime, but the guilt of that person must be established.”

In State v. Hickam, 95 Mo. 322, four defendants were jointly charged with an attempt to kill, and were convicted, Hickam as [1233] principal, and the other three as aiders and abettors. The judgment was reversed. The court said (l. c. 332):

"Neither of these defendants (other than Hickam), however, could properly be convicted of the offense charged in the indictment, unless the jury found, either that there was a common purpose in the minds of Sam Hickam and such defendant to kill Davenport, and the shooting was done in the attempted accomplishment of such common purpose, or that such shooting was done by Sam Hickam in the attempted accomplishment of a purpose in his mind to kill Davenport of which such defendant had knowledge, and that she did some act in furtherance of the attempted accomplishment of such purpose, and a proper instruction on this branch of the case ought to have been given.”

The part I put in italics states the principle applicable. One cannot be convicted as aider and abettor without a guilty principal. In State v. Baker, 297 Mo. 249, the defendant was charged with secretly burying a child to conceal the birth thereof, contrary to statute. The court said (l. c. 252):

“If appellant be punished under the facts in this case, it must be because her offense is within the scope of Section 3687, Revised Statutes 1919, as accessory before the fact. . . . To convict one as an accessory, you must have a principal; conversely, without principal there is no accessory.

That was concurred in by all of the judges of Division Two.

The case of State v. Hayes, 105 Mo. 76, is where the defendant proposed to one Hill the burglary of a store house. Hill consented, but notified the authorities. The two went together to the building, defendant raised the window and assisted Hill in getting into the building. Hill handed out a piece of bacon. This court said (l. c. 80):

“The trial court told the jury in this instruction that defendant was guilty of burglary; if he, with a felonious intent, assisted and aided Hill to enter the building, notwithstanding Hill himself may have had no such intent. In this we think the court erred. One cannot read this record without being convinced beyond a reasonable doubt that Hill did not enter the warehouse with intent to steal.”

And at page 81:

“The act of Hill, however, was by the instruction of the court imputed to defendant. This act, according to the theory of the instructions, so far as Hill was concerned, was not a criminal act, but when it was imputed to defendant it became criminal, because of the latter’s felonious intent. This would probably be true if Hill had acted under the control and compulsion of defendant, and as his passive and submissive agent.  But he was not a passive agent in this transaction. He was an active one.  He acted of his own volition.  He [319 Mo. Sup.78] [1234] did not raise the window and enter the building with intent to commit crime, but simply to entrap defendant in the commission of crime, and have him captured.

Quoting from a Kansas case, the court added:

“’The act of a detective may, perhaps, be not imputable to the defendant, as there is want of community of motive. The one has a criminal intent, while the other is seeking the discovery and punishment of crime.’”

The court then cites authorities and reasons at length upon the principle, too long to quote here.

The effect of the above authorities is that, in order to convict one  as accessory before the fact of any crime, the criminal intent must be in the minds of both the accessory and the principal, and followed' by the overt act in the commission or attempted commission of the crime.

II.

But it is argued that the acts done by the defendant Davis, in this case, were of themselves an attempt to commit murder, independent of any act or intent on the part of Dill, his supposed agent.

Counsel for the State in his argument suggests that it is an indictable offense at common law to counsel and solicit another to commit a felony, and that, under the statute, becomes an attempt to commit the felony. True enough that is an, offense, at common law. [16 C. J. 117.] It is also an offense at common law to attempt to commit a crime. [16 C. J. 111-113.] Likewise it is an offense at common law to become accessory before the fact to the commission of a crime. [16 C. J. 119.] The common law recognizes these three distinct offenses.  The Attorney-General cites the case of Commonwealth v. Randolph, 146 Pa. St. 83, in support of his position. The defendant in that case was convicted of soliciting another to commit a crime at all.  That was charged as a distinct offense in itself. The court cites numerous cases in support of the position that soliciting another to commit a crime at all. The opinion cites, among others, the case of Stabler v. Commonwealth, 95 Pa. St. 318, reported in 40 Am. Rep. 653. The indictment there was in six counts, on two of which defendant was tried, the first and the sixth. The first charged a felonious attempt to poison one Waring with intent to commit the crime of murder.  The sixth charged that the defendant wickedly solicited one Neyer to administer the poison to Waring. The evidence shows that the defendant solicited Neyer to put poison in Waring's spring, so that the latter and his family would be poisoned, and offered him a reward for so doing.  He handed Neyer the poison and directed him how to place it. Neyer, however, refused to carry out the scheme.  The defendant was convicted on [1235] both counts. On appeal it was held that he was not guilty on the first count of attempt to murder, but he was rightly convicted on the sixth count for soliciting another to commit the murder. The court says, in speaking of the statute on the subject (l. c. 654):

“The act recognized and distinguished between intent and attempt. The former indicates the purpose existing in the mind, and the latter an act to be committed.”

And further:

“In the present case it 'is contended that putting the poison into the pocket of the witness was an act sufficient to constitute the attempt, if Stabler expected and believed it would be used as he had requested.”

And further commenting on the facts, the court said (l. c. 655):

"If, however, it was actually delivered with that intent, we do not think it constituted an attempt to murder under the eighty-second section of the Act of March 31, 1860.”

That section, similar to ours, defined an attempt to commit a crime. The court then cites cases showing the distinction between an attempt to commit a crime and soliciting another to do it. Thus, the Pennsylvania courts, upon which the State relies, destroy the State’s position.

Hicks v. Commonwealth, 86 Va. 223, 19 Am. St. 891, is where the accused, charged with attempt to murder, purchased poison and solicited one L to put it in the “Old Man’s coffee," the old man being the intended victim. L had no intention to administer the poison.  It was held that it was not an attempt to murder; that mere preparation did not constitute an attempt. The court said (1. c. 896):

"'Merely soliciting someone to do an act is an attempt to do that act’ (citing an old case).

“‘In that case the agent was actually given money for his services, and immediately proceeded with the poison to the house of the intended victim; but upon his arrival there, he gave up the poison to them, and told them all about it. The prisoners were convicted but at the ensuing term the case was considered by the fifteen judges who held the conviction wrong.’” 

And further.

“Here, undoubtedly, there was an intent to commit murder, but the acts done do not amount to anything more than the mere arrangement of the proposed measures for its commission."

That case and this are as like as two peas.

In the case of Hall v. State, 52 Tex. Crim. l. c. 253, the appellant was charged as an accomplice in a burglary, and the court said:

“It is not a violation of the law with reference to the conviction of an accomplice that he simply furnish the means, advised and aided; it would be no offense unless the offense in contemplation was subsequently committed."

[1236] Not a case has been cited, nor can one be found, I think, which would support the conviction in this case.

State v. Mitchell, 170 Mo. 633, is cited as one in point. There the defendant actually fired the shot with intent to kill, at the spot where he thought the victim lay. That was an overt act in pursuance of the attempt by the defendant himself.

In the argument we were directed to the heinous nature of the crime, where one, who is too cowardly to commit the act himself, employs someone else to do it. That is a serious offense, and no doubt many a crime is committed by a hired agent, but the master minds in the criminal world from whom that danger comes never make mistakes such as Davis made. They know their men and they employ real killers. Davis was not only a coward, but a fool. The entire plan and preparation showed the want of judgment and discretion. He has no criminal record, and he is not a dangerous criminal. If every person who, at some time in his or her life, entertained a criminal impulse, was put in jail, a small minority of us would be at large.

It is said further that the defendant in this case did all he could do in furtherance of the plan to have this murder committed. This is incorrect. He failed of many things he might have done—things, absolutely necessary for the commission of the crime or its attempt. He might have used the weapon himself. He might have used sense enough to solicit a real criminal to commit the deed. He might have taken precaution to find out who the man was that he employed for the purpose. But blindly he picked up the! first man who offered his services.

The upshot of the matter is this: The defendant had no intention to kill; that is, to commit the murder himself. Dill had no intention to kill. There can be no crime without a criminal intent, and neither the defendant nor his agent entertained an intent to do the deed. The defendant intended that Dill should do it, but that intent cannot be connected with an act of another which was neither done nor contemplated by the other. The intent to commit the crime must be in the mind of the man who is to commit the crime.

Of course, the defendant was guilty of soliciting another to commit the murder; a serious crime, but he was not charged with that nor convicted of that offense. We must determine eases upon the law, as it is written, and as it has been adjudged for generations.

The judgment is properly reversed.

WALKER, C. J., (dissenting).—The charge against the defendant was based upon the following statute,  so far as the same is definitory of the offense: “Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any [1237] act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall in cases where no provision is made by law for the punishment of such  attempt, be punished as follows:” (this is followed by the punishment prescribed, part of Section 3683, Revised Statutes 1919).

"An attempt,” as this court said in construing this statute, "is a deliberate crime which is begun, but through circumstances independent of the will the action is left unfinished. It is such an intentional, preliminary guilty act as will apparently result, in the usual course of natural events, if hot hindered by causes outside of the actor's will, in a deliberate crime. If the means are adapted to the end and there is an apparent physical ability to complete the attempt on the part of the attempter,  then the case may be fairly made out." [State v. Bobbitt, 228 Mo. l. c. 264; State v. Mitchell, 170 Mo. 633; State v. Montgomery, 63 Mo. l. c. 298.] The presence of the essentials necessary to constitute the crime are, threefold: (1) the intent; (2) the doing of acts toward the commission of the crime; and (3) the failure of their consummation. [State v. Fraker, 148 Mo. l. c. 162.] An intent may be inferred from all of the facts and circumstances in a given case. This rule finds its genesis in the fact that intent involves the purpose with which an act is done and requires an exercise of the will. [State v. Santino, 186 S. W. (Mo.) 976.] Intent, therefore, may be inferred from all of the facts and circumstances in evidence; and a sane man may be held to intend the usual and necessary consequences of his acts; and when he acts in a mariner so as to produce a result prohibited by law, his thus acting may be regarded as proof of his unlawful intent in the absence of evidence to the contrary. Thus the first essential may be said to be established.

In determining whether there is proof of the crime we are authorized in considering the defendant's conduct throughout, from his first proven effort to the moment of his failure—due to no cause of his.

Proof of preparations alone to commit the crime will not, of course, constitute a violation of our statute. Its language renders the distinction clear between mere preparations and acts in attempts to commit crime. The first are out introductory and do not form a part of the offense; the second are constitutive and when shown to have been committed render the accused amenable to the statute. The language of the latter, after prohibiting attempts to commit a crime generally, adds: “or to do any act toward the commission of an offense prohibited by law but shall fail in the perpetration thereof, and shall be prevented in the execution of the same upon conviction, shall be punished,: etc.

[1238] Without limitation it may be said that the defendant did everything within the contemplation of malicious human ingenuity to enable the putative murderer to commit the crime, short of actual participation therein.  He solicited the detective, Dill, to do the killing. In so doing he was guilty of a constitutive act within the terms of the statute. Thus defined the act became overt. [People v. Mills, 178 N.Y. 274, 67, L. R. A. 131.] Despite the contrariety of rulings elsewhere it is the recognized law in this State that the solicitation of another to commit a felony is an act toward its commission, without any other act being done, to warrant a conviction. [State v. Hayes, 78 Mo. l. c. 316.] The evil intent in the mind of the defendant—the existence of which is shown by all of his acts, imparts to the solicitations their criminality. Incidentally it may be said in this connection, that the party solicited may not have acquiesced or intended to share in the crime will not exonerate the defendant. [State v. Hayes, supra.]

I find that our statute was copied from that of New York, where it was held in People v. Bush, 4 Hill, 133, where an accused solicited another to commit the crime of arson and gave him some material for the purpose, that this was sufficient to sustain a conviction, although the person solicited did not intend to commit the offense. A like ruling was made by the Supreme Court of Georgia, whose statute was also modeled upon that of New York, in the case of Griffin v. State, 26 Ga. 493, in which it was said, citing with approval the New York case of People v. Bush, supra, that the fact that the person hired had no. intention to commit the crime made no difference with the criminality of the accused. The intent of the hired could not lessen the crime of the hirer.

In Commonwealth v. Jacobs, 9 Allen (Mass.), 274, Judge GRAY said: "Whenever the law makes one step toward the accomplishment of an unlawful object, with the intent or purpose of accomplishing it, criminal, a person taking the step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that, by reason of some act unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance.”  In the Jacobs case the defendant was charged with soliciting another to leave the state and enlist elsewhere in military service when the person solicited was not fit to become a soldier.

Recurring to rulings in this jurisdiction construing this statute (Sec. 3683), we find in State v. Sullivan, 110, Mo. App. l. c. 87, a very terse discussion by ELLISON, J., of the construction to be given to solicitations in a case as at bar.  It there said:

“It has been at times suggested that to merely: solicit the unlawful offense was not doing an act, and that the law could not notice a mere [1239] desire unaccompanied by an act. But, manifestly, soliciting is an act. It is a step in the direction of an offense. [State v. Hayes, 78 Mo. l. c. 316; King v. Higgins, 2 East. 5; State v. Avery, 7 Conn. 267; 1 Bishop's Crim. Law, sec. 767.] And so it may, also be said that some of the foregoing cases are for attempts to commit an offense and that they therefore do not apply to a case where there has only been a solicitation; it being contended that a solicitation, is not an attempt to have the offense committed. But it is. For the act of soliciting is an attempt to have the offense committed. Indeed, the case of King v. Higgins, supra, and several others, were cases of solicitation.

“Text-writers have laid down the law that to solicit the commission of an offense was indictable, without noticing any distinction whether the offense solicited was a felony or misdemeanor.  [Bishop on Crim. Law, supra; Wharton on Crim. Law, secs. 179, 1857, 1858; 1 Russell on Crim. Law, 193, 194.] These writers look only to the character of the offense in its evil tendency and not to its technical designation. And so in a case from the Supreme Court of Illinois, much like the present, . . . it was held that, though there was no statute on the subject in that State, yet it was an indictable misdemeanor for an officer to propose to receive a bribe. The court said: ‘According to the well-established principles of the common law, the proposal, to receive the bribe was an act which tended to the prejudice of the community; greatly outraged public decency; was in the highest degree injurious to the public morals; was a gross breach of official duty, and must therefore be regarded as a misdemeanor, for which the party is liable to indictment. It is an offense more serious and corrupting in its tendencies than an ineffectual attempt to bribe. In the one case, the officer spurns the temptation, and maintains his purity and integrity; in the other, he manifests a depravity and dishonesty existing in himself, which, when developed by the proposal take a bribe, if done with a corrupt intent, should be punished; and it would be a slander upon the law to suppose that such conduct cannot be checked by appropriate punishment. [Walsh v. The People, 65 Ill. 58]’”

The proof of defendant’s guilt in the instant case is not limited to solicitations. He and his paramour, the wife of the intended, victim planned and directed with particularity, the time, manner and place of the proposed taking off of her husband. A trip to Chicago was even in contemplation to effect that end when the husband returned home unexpectedly and the scene of the proposed tragedy was shifted to Kansas City. When it was to occur, the defendant had it understood that he was to remain at his home so as to afford a basis for a plea of alibi. There he waited expectantly for, news of the murder. His paramour—but she is not on trial and the vocabulary of scorn and contempt need not be wasted on her connection with the contemplated murder of her husband.

[1240] The chain of proven facts and properly deducible circumstances cannot be otherwise construed than as conclusive of the defendant's guilt. Of what more avail would it have been as proof of his intent or purpose, to have shown that he furnished the detective with the weapon he was to use or the poison or other instrumentality he might employ in committing the murder. The limits of human fancy know no  horizon; but it is difficult to conceive what more the defendant could have done, than he did do, towards the attempt to commit the proposed murder without actually  participating in its commission.

Ample proof of the presence of those essentials required by our rulings, having been adduced to sustain a conviction, the judgment of the trial court should be affirmed.

29 M.J. 679

UNITED STATES

v.

Senior Airman William M. CHURCH, FR United States Air Force.

ACM 27324.

U.S. Air Force Court of Military Review.

Sentence Adjudged 16 Sept. 1988.

Decided 26 Oct. 1989.

Accused, a senior airman in the United States Air Force, Was convicted by general court-martial convened at Grand Forks Air Force Base, North Dakota, Stephen R. Bloss, J., of attempted premeditated murder of his wife, and he appealed. The United States Air Force Court of Military Review, Blommers, J., held that evidence supported conviction, although person whom accused attempted to hire to kill wife was undercover agent and accused argued that his conduct never passed threshold from mere preparation or solicitation to attempt to commit offense because there was no dangerous proximity to success of planned murder.

Affirmed.

1. Military Justice

There can be no conspiracy when supposed participant merely feigns acquiescence in criminal venture to secure another’s detection and apprehension by proper authorities.

2. Military Justice

Evidence supported accused’s conviction for attempted premeditated murder of his Wife, although person he attempted to hire to kill Wife was undercover agent and it was claimed accused’s conduct never passed threshold from mere preparation or solicitation to attempt to commit offense because there was no dangerous proximity to success of planned murder; accused obtained services of purported hit man to murder his wife, participated in detailed planning of intended crime, and paid agreed-upon consideration before crime and after he was apprised that crime had occurred. UCMJ, Art. 80, 10 U.S.C.A. § 880; MCM 1984, Pt. IV, H4, subd. c.

3. Military Justice

Variances between attempted murder specification, which alleged that crime occurred at particular Air Force base and alleged dates on or about 25-26 April, and proof of meeting between accused and undercover agent posing as hit man 78 miles from where -base was located and on 22 April, were not fatal variances; companion attempted conspiracy charge that was dismissed alleged offense occurring between 19-22 April at both air base and town in which meeting took place, so accused was not misled so as to affect his ability to adequately prepare for trial and would be fully protected against another prosecution for the same offense.

Appellate Counsel for the Appellant: Colonel Richard F. O'Hair and Major Lynne H. Wetzell.

Appellate Counsel for the United States: Colonel Joe R. Lamport, Lieutenant Colonel Robert E. Giovagnoni and Captain Morris D. Davis.

Before LEWIS, BLOMMERS and KASTL, Appellate Military Judges.

Decision

BLOMMERS, Judge:

[1] Before a general court-martial with members, the appellant, contrary to his pleas, was found guilty of the attempted premeditated murder of his wife in violation of Article 80, UCMJ, 10 U.S.C. 880.^[1] His sentence, as adjudged and approved, extends to a dishonorable discharge, confinement for ten years, forfeiture of all pay and allowances; and reduction to airman basic (E-1). The principal issue raised before us is framed by appellate counsel as follows:

WHETHER THE MILITARY JUDGE ERRED IN DENYING TRIAL DEFENSE COUNSEL’S MOTION FOR A FINDING OF NOT GUILTY OF THE CHARGE AND SPECIFICATION OF ATTEMPTED PREMEDITATED MURDER, AS THE EVIDENCE FAILED TO SHOW ANY ACTS ON THE PART OF THE APPELLANT BEYOND MERE PREPARATION, NOR THAT ANY ACT OF THE APPELLANT TENDED TO EFFECT THE COMMISSION OF THE INTENDED OFFENSE.

Simply stated, it is asserted that the evidence is not sufficient to support findings of guilty of attempted murder. We disagree and affirm. Article 66(c), UCMJ, 10 U.S.C. 866(c); United States v. Turner, 25 M.J. 324 (C.M.A.1987).

This case involves contracting out for the commission of a crime. As appellate counsel note, the facts of this case present an issue of first impression for the military appellate courts in applying principles of law relating to “attempt" crimes. The specification in question alleges that the appellant “did, at Grand Forks Air Force Base, North Dakota, from on or about 25 April 1988 to on or about 26 April 1988, attempt to, with premeditation, murder [his wife] by procuring, assisting, and counseling Nicholas J. Karnezis to commit, for payment in United States currency, the premeditated murder of the said [wife]." In order to be found guilty of an attempt, the evidence must establish “a specific intent to commit the offense accompanied by an overt act which directly tends to accomplish the unlawful purpose.” MCM, Part IV, para. 4c(1) (1984). The act in question must amount to more than mere preparation to commit the offense.^[2] A solicitation to commit an offense in violation of Article 134, UCMJ, 10 U.S.C. 934, on the other hand, is committed if one counsels or advises another to commit an offense with the specific intent that the offense solicited be committed. No overt act directly tending to accomplish the unlawful purpose is required. During oral argument, appellate defense counsel conceded that the appellant is guilty of soliciting another to commit murder, but argued forcefully that he was not guilty of attempted murder because no act beyond mere preparation was proven.^[3] To resolve this matter, it will be necessary to review the evidence of record in some detail.

Facts

The appellant and his wife were married in 1985, and a son was born of this union about a year later. In 1987, they experienced marital difficulties which eventually led to their separation. By an order dated 5 October 1987, the local district court awarded custody of the child to the appellant’s wife, and shortly thereafter she returned with the child to her home in Michigan. The appellant loved his son and desired to regain custody of him, but began to realize it was unlikely he would be able to do so through the courts.

Sometime between Thanksgiving and Christmas of 1987, the appellant, a security policeman, asked Senior Airman Mohon, a former co-worker, if he knew anyone the appellant could hire to kill his wife. Mohon did not take the appellant seriously. Sometime January 1988, Senior Airman Kowalkowski, a co-worker, and the appellant were talking about the appellants, marital difficulties, and the appellant commented that he would be better off if was dead. Shortly thereafter, during another conversation, the appellant asked Kowalkowski if he had any friends from a big city. Kowalkowski did not take the appellant seriously either.

On about 31 March 1988, Airman Meyer, another co-worker, was talking with the appellant in the hallway of their dormitory. The appellant said that since. Meyer was from a big city, he wondered if Meyer knew anybody who could do a job for him. Knowing the appellant’s family situation, Meyer believed the appellant was talking about getting someone to kill his wife so he could regain custody of his son. Meyer replied that he would check around and make some calls, but really did not take the appellant seriously. A couple of days later, he made one call to a friend back in New York in the appellant’s presence. He asked his friend, “Do you know anybody that you could find to eliminate this guy’s wife so he can get custody of his kid?” The appellant gave no indication he had just been kidding around or joking when Meyer asked this question. On another occasion when Meyer was present, the appellant made a rough drawing of the residence where his wife was living and explained how easily someone could gain access to it. On about 6 April, Meyer went with the appellant to the city of Grand Forks to pick up tax returns. During the trip, the appellant said he was expecting an $800.00 refund and implied it could be used to pay for his wife’s killing.

On 7 April 1988, Sergeant Skyberg, a co-worker and friend, received a message that the appellant wanted to talk to him. Skyberg phoned the appellant and asked him what he wanted to talk about. The appellant indicated that the matter was too private to discuss over the phone, and Skyberg arranged to meet the appellant at his dormitory room. After Skyberg arrived, the appellant asked him if he knew anyone “who could . . . [the appellant gestured with his hand, his fingers arranged as if to simulate a gun] his wife.” The appellant indicated that he felt that was the only way he could get custody of his son. He said he was getting out of the service in about a month, and wanted “it” done before he left so he would have a good alibi as to where he was at the time. Skyberg believed the appellant was serious. A few other airmen, including Airman Meyer, entered the room and they changed the subject of conversation. After all had left except Skyberg and Meyer, the conversation about the appellant’s wife was resumed. The appellant talked in more detail about the location of his wife’s home in Michigan, and a hotel close by where someone doing the job could stay. He indicated her house was up for sale, so someone could easily get inside by posing as a prospective buyer. He said he could provide a detailed map of the area, and would be able to raise “a few grand” for the job. The appellant said this was not a spur of the moment thing, but some» thing he had been thinking about for the last few months. Meyer indicated that he had tried to contact someone on the appellant’s behalf. After leaving the appellant’s room, Skyberg and Meyer discussed the matter further and decided to contact the Office of Special Investigations (OSI).

After talking with Skyberg and Meyer the following day, OSI decided to open up an investigation and attempt to place an undercover agent in the role of a hit man. Meyer agreed to assist them by introducing the appellant to the undercover agent. On 15 April 1988, Meyer was instructed to contact the appellant and tell him that his [Meyer’s] friend in New York had found someone to do the job if the appellant was still interested. The appellant indicated he was, and Meyer told him an individual by the name of “Nick” (in reality, Special Agent Nicholas J. Karnezis) would call him on the evening of 19 April. The appellant subsequently borrowed $400.00 from Meyer (money provided by OSI) to help pay the hit man.

Nick called the appellant as planned, and indicated they had some business to discuss. Nick related that he would need a picture of the appellant’s wife, a sketch of the house, and maps of the local area in Michigan. The appellant said he already had the picture and a detailed diagram of the residence, and that he could get the maps. Nick indicated he would need $500.00 up front for expenses. It Was agreed they would meet at the Holiday Inn in Fargo, North Dakota on 22 April 1988 and that the appellant would wear an Ohio State football jacket and carry a Time magazine so Nick could recognize him.

The meeting occurred as planned. After some discussion about his family situation the appellant indicated he wanted his Wife killed. The appellant said he had brought the things Nick had asked for and had $1,100.00 with him, $500.00 for the job, plus $600.00 for air fare. After discussing the location of the appellant’s residence, Nick simulated a phone call to an airline ticket agent, booking a flight to Marquette, Michigan. The appellant provided Nick„With pictures of his Wife and son; a spiral notebook containing a list of people who lived in the house and hours they were away from home, two detailed diagrams of the house and surrounding area, and directions on how to get to the house from the Marquette airport; a Rand-McNally road atlas with two different routes from the airport to the house highlighted; and, a local Marquette area phone book, which included the phone number at his Wife’s home. They discussed the schedules of the residents, the vehicles they drove, Where the dogs were located, closets in the house where guns were kept, and other details of the planned murder. They settled on a total price of $2,100.00 if the job went as easily as the appellant indicated it should. The appellant gave Nick the $1,100.00 he had brought with him. Nick asked for ideas on how the killing should be done, and the appellant said it seemed to him the easiest way was to make it look like a robbery and that his wife got in the way. As to the weapon, he indicated a knife or gun could be used. Nick showed the appellant a .22 caliber semi-automatic pistol, equipped with a silencer, that he had in his brief case. Nick asked the appellant if he had any “special requests” as to how he wanted it done. The appellant replied “one in her head and one in her (using a slang term for a private part of the female anatomy). Nick expressed concern about the appellant’s wife’s grandfather, who also lived in the house and did not work. The appellant indicated there should be no witnesses, and that if the grandfather got in the way Nick should take care of him too. The appellant indicated he wanted the job done while he was at work S0 he would be very visible. He provided Nick with his work and dormitory phone numbers, and Nick said he would be in touch, and for the appellant to expect a call around 8:00 to 8:30

Nick called the appellant from K.I. Sawyer Air Force Base, Michigan (a base located close to Marquette) on 24 April. He told the appellant that his wife had moved, and that the job would cost more, another $500.00, since he would have to locate where she was living. The appellant agreed to pay the additional amount. That evening the appellant asked Airman Meyer to call directory assistance in Michigan for him to find out his wife’s new phone number. Meyer did, and gave the new number to the appellant. (A fair inference is that the appellant obtained the number so he could provide it to Nick if Nick was unable to locate the appellant’s wife on his own.) Nick called again the following day, indicating he had located the appellant’s wife and that the job would be done between then and the following morning. The appellant said that was fine. He indicated he had the other $1,000.00, but that it would take a little longer to come up with the additional $500.00.

On the morning of 26 April, the appellant was notified of his wife’s death by his unit commander. According to Airman Meyer, the appellant told him that everyone was sympathetic and that the appellant put on “a Class A act,” including crying and laying down on the first sergeant’s couch. Later that day, the appellant received a message to meet Nick down in Fargo. He proceeded to the Holiday Inn in Fargo. He told Nick he had received notification of his wife’s death. Nick said: “You mean you got the word already!” And the appellant replied: “You do good work.” Nick showed the appellant a picture of his wife laying on the floor with what appeared to be two bullet wounds, one in her head and another in her neck. The appellant confirmed that it was his Wife. After some further discussion, he gave Nick $1,000.00. At that point Nick identified himself as a government agent and apprehended the appellant. The two meetings between- the appellant and Nick at the Holiday Inn were both video and audio tape recorded (the tapes were admitted in evidence at trial). 

An Attempt or Only a Solicitation?

[2] On the appellant’s behalf, it is forcefully argued that his conduct never passed the threshold from mere preparation (i.e., a solicitation) to an attempt to commit the offense because there was no “dangerous proximity” to success of the planned murder. See Hyde v. United States, 225 U.S. 347, 388, 32 S.Ct. 793, 810, 56 L.Ed. 1114, 1134 (1911) (Justice Holmes dissenting); Perkins, Criminal Law 572 (2d Ed.1969). Since there is little military authority on point, appellate counsel rely principally on state court approaches to this dilemma.^[4] See, e.g., State v. Otto, 102 Idaho 250, 629 P.2d 646 (1981); Hobbs v. State, 548 S.W.2d 884 (Tex.Ct.App.1977); Johnson v. Sheriff Clark County, 91 Nev. 161, 532 P.2d 1037 (1975); Hutchinson v. State, 315 So.2d 546 (Fla.App.1975); People v. Adami, 36 Cal. App.3d 452, 111 Cal.Rptr. 544 (1973); Smith v. State, 279 So.2d 652 (Miss.1973); State v. Miller, 252 A.2d 321 (Me.1969); State v. Laurie, 12 S.W.2d 43 (Mo.1928); State v. Davis, 319 Mo. 1222, 6 S.W.2d 609 (1928). In various factual situations involving “contracting out” for crimes, these courts held that the evidence only established mere acts of preparation not leading directly or proximately to consummation of the intended crime.^[5] For example, in Adami the Court concluded that “the contemplated murder would not have resulted in the usual course of natural events since neither the ‘agent’ nor the solicitor [defendant] did any unequivocal overt act which can be said to be a commencement of the commission of the intended crime.” People v. Adami, 111 Ca1.Rptr. at 548.

Typical, and perhaps closest factually to the present appellant’s case, are the companion cases of Davis and Lourie. They involved a plan hatched by two lovers to murder the woman’s husband (Edmon Lourie) so that they could get his life insurance amounting to $66,000.00. The parties resided in Kansas City, Missouri. In furtherance of their plan, Davis engaged a man named Leverton to find an ex­convict who would commit the murder for hire. However, Leverton disclosed the plot to the police. Thereafter, several meetings were held between Davis, Leverton and an undercover police officer, Dill. It was agreed that Dill would kill Mr. Lourie for $600.00 and diamonds valued at about $3,000.00 owned by the Lourie’s. Also, arrangements were made for Dill to meet Mrs. Lourie so they would be able to recognize each other. It was decided that the contemplated assault would occur in Chicago, where Mr. Lourie had gone on business. Davis provided Dill a map showing where Mr. Lourie could be located and two photos of him. If Dill could not locate him, Mrs. Lourie would also travel to Chicago to assist. However, this part of the plan was interrupted when Mr. Lourie returned early from his trip. It was then decided that Mrs. Lourie would persuade her husband to go out for a night on the town, and that they would leave their home at 8:00 p.m. on a certain date. Mrs. Lourie was to have the diamonds on her person so it would appear that robbery was the motive for the crime. She would be “mussed up”, and then faint, permitting Dill time to escape~ On the evening in question, Dill, accompanied by three other police officers, proceeded to the Lourie residence as planned. The Lourie’s were dressed and ready to leave; Mrs. Lourie had the diamonds on her person. Davis, also as planned, was at home in another part of the city in order to have an alibi. Two of the officers entered the residence and took charge of the Lourie S, while Dill and the other officer proceeded to Davis’ residence and arrested him. The Supreme Court of Missouri concluded:

The employment of Dill as agent to murder Lourie was not tantamount to an attempt. Dill not only had no intention of carrying out the expressed purpose of defendant, but was guilty of no act directly or indirectly moving toward the consummation of the intended crime.  He did nothing more than listen to the plans and solicitations of defendant without intending to act upon them. It was not shown that Dill committed an act that could be construed as an attempt. The arrest of Lourie, his wife, and defendant as detailed in the evidence could not be said to be an act involving the consummation of the crime. (Citations omitted.)

State v. Davis, 6 S.W.2d at 612. The Court adopted the same rationale in its decision in State.v Laurie. The Court acknowledged that the defendants were guilty of soliciting another to commit murder, a crime not charged. (Apparently under Missouri law that offense is not a lesser included offense to murder or attempted murder.)

Not all authority favors the defense position. A few state courts have upheld attempt convictions in cases involving crimes for hire. See, e.g., Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978); State v. Gay, 4 Wash.App. 834, 486 P.2d 341 (1971); State v. Mandel, 78 Ariz. 226, 278 P.2d 413 (1954); Stokes v. State, 92 Miss. 415, 46 So. 627 (1908). These cases stand for the proposition that once the intent that a crime be committed is clearly proved, “slight acts” on the part of the solicitor will Support an attempt conviction. For example in Gay, payment by the solicitor was considered a sufficient overt act directed toward commission of the intended crime.

Appellate defense counsel urge that it would be inappropriate to adopt this minority view under military law. Doing so, it is argued, would violate “the very essence of the requirement that a sufficient actus reus be proven before criminal liability will attach.” Perhaps so, because our law requires “a direct movement toward the commission of the offense," and provides that “[s]oliciting another to commit an offense does not constitute an attempt” (though solicitation can be a lesser included offense). MCM, Part IV, para. 4c (1984).^[6]

We are not convinced, however, that military law should extend so far as to hold that a factual situation such as that present in the Davis and Laurie cases will not constitute an attempt to commit a crime. In this regard, we find solace in the reasoning of some of the dissenters in the foregoing cases. In Davis, Chief Justice Walker wrote: “Without limitation it may be said that the defendant did everything within the contemplation of malicious human ingenuity to enable the putative murderer to commit the crime, short of actual participation therein.” State v. Davis, 6 S.W.2d at 616. In State v. Otto (defendant soliciting undercover agent to commit murder, paying him $250.00 up front with promise of larger sum after crime was committed, not sufficient to support conviction of attempted murder), Chief Justice Bakes observed:

[T]he acts here went far beyond an offer of “employment” [a solicitation]. . .. [T]he type of weapon to be utilized and the manner in which the hit was to be made were discussed, an agreement was reached, payment was made, and the defendant completed all necessary steps preliminary to the “hit” being made.

The real question is whether acts of preparation when coupled with intent have reached a point at which they pose a danger to the public so as to be worthy of law’s notice.

Whether a person takes on for himself the task of trying to kill another person, or tries to bring about that killing through hiring another to perform the deed, is in actuality nothing but a matter of personal choice. While the principal is guilty of murder when the contract is performed, an attempt has been made when the bargain is struck…If criminals are going to contract out their services, and if there are persons who will retain those services, there is no reason why the criminal courts should decline to respect those contracts.

State v. Otto, P.2d at 653-654.

To a great extent, resolution of the issue we face is dependent upon the facts of the case. United States v. Stallworth, 543 F.2d 1038, 1039 (2d Cir.1976); 40 Am.Jur.2d 830. We hold that under the circumstances present in the case now before us, the appellant’s conviction of attempted murder can be sustained. We have found no military or federal precedent which we believe would require us to reach the opposite conclusion.

As this Court has recently stated, “a criminal attempt attaches culpability to a state of mind consisting of an accused’s criminal intent and the belief that he is acting in such a manner as to achieve that intent.” United States v. Guevara, 26 M.J. 779, 781 (A.F.C.M.R.1988). In United States v. Byrd, 24 M.J. 286, 290 (C.M.A. 1987), the United States Court of Military Appeals relied upon a test adopted by the United States Court of Appeals for the Second Circuit:

[T]o be guilty of an attempt, a ‘defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime’ and that substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent. United States v. Jackson, 560 F.2d 112, 116 (2d Cir.), cert. denied, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977); see also United States v. Mandujano, 499 F.2d 370, 376 (5th Cir.1974), cert. denied 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975); ALI Model Penal Code, Sec. 5.01 (1962).

See also United States v. Stallworth, 543 F.2d 1038 (2d Cir.1976); United States v. Thomas, 13 U.S.C.M.A. 278, 32 C.M.R. 278, 285-286 (1962). The Court of Military Appeals most recently affirmed reliance upon this test in United States v. Hyska, 29 MJ. 122 (C.M.A.1989)~but the Court did not apply the test to the facts of the case as it was decided on other grounds. See also United States v. Presto, 24 M.J. 350 (C.M.A.1987).

In Mandujano, an informant introduced an undercover narcotics agent to the defendant. After some general conversation, the subject turned to drugs. The agent said he was from out of town, and was looking for an ounce sample of heroin to determine the quality of the material in the local area. Mandujano replied that he could get good brown Mexican heroin for $650.00 an ounce. He indicated he had a good contact, but would need the money up front. The agent gave Mandujano $650.00, and he departed. He returned about an hour later, explained that he was unable to locate his contact, and gave the money back to the agent. The Court found that the request for and receipt of the $650.00 from the agent constituted a substantial step toward distribution of heroin.” United States v. Mandujano, 499 F.2d at 379. Thus, the jury’s verdict of guilty of an attempt to distribute heroin in violation of 21 U.S.C. § 846 was upheld. The Court, noting that the statute did not define an “attempt" assessed the case law and concluded that in order to constitute a criminal attempt, the defendant must have (1) acted “with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting,” and, (2) “engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent.” at 376~377. This test was derived in large part from the Model Penal Code standard.^[7]

United States v. Jackson, supra, involved an attempted bank robbery. The Court examined various approaches taken in an effort to distinguish preparation from attempt, and then affirmed the trial court’s use of the Mandujano test. The Court noted that once criminal intent is established, the key question remaining is “the substantiality of the steps taken and how strongly this corroborates the firmness of [the] obvious criminal intent.” 560 F.2d at 120. This determination is a matter of degree, and a mixed question of law and fact.

As noted above, the Court of Military Appeals applied the Mandujano/Jackson test in United States v. Byrd, supra. Byrd met SP4 Calloway (who was a drug suppression team member, though Byrd did not know this at the time) at the Community Center on Fort Gordon, Georgia. After some general conversation, Byrd mentioned Something about marijuana. Calloway asked Byrd if he could get some marijuana for him. Byrd said he knew someone who could get him a five dollar bag for ten dollars. Byrd attempted to contact a certain taxi cab driver for this purpose, but found out he was not working that day. He told Calloway to meet him at the Community Center the following day. When they met, Calloway was accompanied by an undercover military police investigator who was posing as an individual interested in obtaining drugs. Byrd took them to another location on post and introduced them to the cab driver Byrd knew. The Cab driver told them he could get marijuana for them for ten dollars. The investigator then gave Byrd ten dollars. It was agreed that Byrd would meet the investigator at the Community Center in half an hour with the marijuana. The cab driver then took Byrd to an off­post liquor store where marijuana was sold. The stipulation of fact in this guilty plea case provided: “The accused purchased a bottle of liquor with the money . . . [the investigator] gave him because he was afraid he’d be caught lf he tried bringing marijuana back on post.” During the providence inquiry, Bryd explained that on the way to the liquor store he decided not to purchase any marijuana. He did not want to get a reputation as a drug peddler.

Based upon these facts, the Court of Military Appeals found that Byrd’s guilty plea to attempted distribution of marijuana was improvident. Receipt of $10.00 from the undercover agent and traveling to a liquor store where marijuana could be purchased did not constitute conduct going beyond preparation. The Court concluded:

Riding to the liquor store with the other occupants` of the taxi-cab was not ‘strongly corroborative of the firmness of’ Byrd’s intent to distribute marijuana. The act is simply too ambiguous; and too many other steps remained before the distribution could be consummated.

United States v. Byrd, 24 MJ. at 290. We believe that Byrd’s renunciation of his criminal purpose was an important factor to the outcome in his case. Chief Judge Everett, writing for the Court, discussed the principle of renunciation and the defense of Voluntary abandonment in some detail. Id. at 290-293.

In United States v. Presto, supra, the accused, pursuant to his pleas, was found guilty of the attempted sale of three kilograms of marijuana. He had previously sold over 500 grams of marijuana to two acquaintances, one a confidential source, the other an undercover agent. They asked if he could get them an additional ten kilograms. He agreed to try to do so, but told them he doubted he could get more than two or three kilograms. He contacted the people he had dealt with, indicated they would try to get the ten kilograms. A couple days later he contacted them again, but they did not have it yet. Later that day he was arrested. The Court stated: “Although placing a call to a potential source in order to determine the availability of drugs tends to corroborate appellant’s criminal intent, we are unconvinced that the statutory requirement of ‘more than mere preparation’ has been met.” United States v. Presto, 24 M.J. at 352. The Court relied upon the test adopted in Byrd in reaching this conclusion. In the case now before us, the appellant’s acts far exceed those of the accused in Byrd and Presto.

Conclusion

Applying the test adopted in Byrd and the principles set forth in the Manual (MCM, Part IV, para. 4 (1984)), we are convinced that the trial court’s findings of guilty of the offense of attempted murder should be upheld. See also Article 66(c), UCMJ. The appellant’s conduct in obtaining the services of Nicholas Karnezis to murder his wife, his detailed participation in planning the intended crime, up to advising the agent exactly how he wanted his wife shot, and his payment of the agreed upon consideration, both before the crime was to occur and after he was apprised that it had, constitutes “a substantial step toward commission of the crime,” and establishes the requisite overt act amounting to more than mere preparation. We can envision nothing else the appellant could possibly have done to effect what he believed would be his wife's murder, short of committing the act himself (which is precisely what he did not want to do). As characterized by appellate government counsel during oral argument, the appellant armed a missile (Nick) and fired it off, fully believing it was aimed directly at his intended victim. See United States v. Keenan, 18 U.S.C.M.A. 108, 39 C.M.R. 108, 113 (1969). Or, using an example contained in the Manual: “if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger, A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire.” MCM, Part IV, para. 4c(3) (1984). If we were to accept the reasoning of appellate defense counsel neither appellant nor SA Karnezis ever took any steps or perpetration in dangerous proximity to the commission of the offense planned” because the agent never intended to commit the offense»-no contract for hire criminal scheme could ever be prosecuted as an attempt if the person hired turned out to be a government agent or informant. Cf. United States v. Johnson, 7 U.S.C.M.A. 488, 22 C.M.R. 278, 283 (1957). To place our criminal justice system in this posture defies logic. It is the accused’s criminal intent we are concerned with, not that of the person hired to commit the crime. United States v. Guevara, supra.

Turning to that intent, we find the record replete with evidence establishing “conduct strongly corroborative of the firmness of the defendant’s criminal intent.” The appellant retained whom he believed to be a big city hit man for the purpose of murdering his wife; he paid an agreed upon amount of money up front; he provided photographs, documents and diagrams to facilitate commission of the crime; he helped plan precisely how it would be committed; he indicated the need for an alibi for himself; after being advised that his wife had moved, he agreed to an increase in the contract price and obtained her new telephone number; when notified of her murder through unit channels, he “put on a Class A act;” upon being shown a staged picture of his wife with gun shot wounds, he commended Nick for his “good work,” and paid a further installment on the contract price. The firmness of his intent is clearly established.^[8]

We are convinced beyond a reasonable doubt that the appellant is guilty of attempted murder. We further find the sentence to be appropriate for commission of this crime. Our attention has also been invited to issues raised at trial which centered around the composition of the court panel. We find them to be without merit.  Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); United States v. Smith, 27 M.J. 242, 250 (C.M.A.1988); United States v. Cunningham, 21 M.J. 585 (A.C.M.R.1985), pet. denied, 22 M.J. 275 (C.M.A.1986); United States v. Townsend, 12 M.J. 861 (A.F.C.M.R.1981); Article 25, UCMJ, 10 U.S.C. 825; R.C.M. 502(a)(1), 503(a)(v.

[3] One other matter warrants brief comment. As noted early on in this opinion, the attempted murder specification alleged that the crime occurred “at Grand Forks Air Force Base,” yet the evidence established that the two meetings between the appellant and Nick took place in a motel room in Fargo, North Dakota, a distance of some 78 miles from Grand Forks, North Dakota, where the base is located. Additionally, the dates alleged in the specification were on or about 25-26 April 1988, but the key meeting between Nick and the appellant where plans for this crime were made occurred on 22 April. We do not find these to be fatal variances between pleadings and proof. The companion attempted conspiracy charge dismissed by the military Judge alleged that the offense occurred between 19-22 April 1988 at both Grand Forks Air Force Base and Fargo. Clearly, the appellant was in no Way misled so as to affect his ability to adequately prepare for trial, and he will be fully protected against another prosecution for the same offense. Therefore, there is no prejudice. United States v. Lee, 1 M.J. 15 (C.M.A.1975); United States v. Rath, 27 M.J. 600 (A.C.M. R.1988); United States v. Mendoza, 18 M.J. 576 (A.F.C.M.R.1984).

The findings and sentence are correct in law and fact, and no error prejudicial to the substantial rights of the appellant was committed. Accordingly, the findings of guilty and the sentence are

AFFIRMED.

Senior Judges LEWIS and KASTL concur.

Senior Judge LEWIS took final action on this case prior to his retirement.

[1] He was also charged with attempted conspiracy to commit premeditated murder, but the military judge granted a defense motion to dismiss that offense as being multiplicious with the offense of attempted premeditated murder. We also note that there can be no conspiracy when a supposed participant merely feigns acquiescence in the criminal venture to secure another's detection and apprehension by proper authorities. United States v. LaBossiere, 13 MA. 337, 32 C.M.R. 337 (1962).

[2] Other parts of paragraph 4c, Part IV of the Manual provide the following guidance:

(2) More than preparation. Preparation consists of devising or arranging the means or measures necessary for the commission of the offense. The overt act required goes beyond preparatory steps and is a direct movement toward the commission of the offense. For example, a purchase of matches with the intent to burn a haystack is not an attempt to commit arson, but it is an attempt to commit arson lo applying [sic] a burning match to a haystack, even if no fire results. The overt act need not be the last act essential to the consummation of the offense. For example, an accused could commit an overt act, and then voluntarily decide not to go through with the intended offense. An attempt would nevertheless have been committed, for the Combination of a specific intent to commit an offense, plus the commission of an overt act directly tending to accomplish it, constitutes the offense of attempt. Failure to complete the offense, whatever the cause, is not a defense.

(3) Factual impossibility. A person who purposely engages in conduct which would constitute the offense if the attendant circumstances were as that person believed them to be is guilty of an attempt. For example, if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger. A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire. Similarly, a person who reaches into the pocket of another with the intent to steal that person's billfold is guilty of an attempt to commit larceny, even though the pocket is empty.

(4) Solicitation. Soliciting another to commit an offense does not constitute an attempt

The Analysis to the 1984 Manual indicates that these provisions are based on paragraph 159 of the 1969 Manual. MCM, App. 21, para. 4 at (1984). Paragraph 159 provided in part:

An accused may be guilty of an attempt even though the commission of the intended offense was impossible because of unexpected intervening circumstances or even though the consummation of the intended offense was prevented by a mistake on the part of the accused. The physical impossibility of committing the intended crime does not constitute a defense.

MCM. 1969 (Rev.), para. 159 at 28-7.

[3] Among other punishments, confinement for 20 years is authorized for attempted murder, whereas the period of confinement authorized for soliciting another to commit murder is 5 years. At trial, the parties agreed that solicitation to commit murder was a lesser included offense to the attempt as charged, and the court members were appropriately so instructed.

[4] Our research has revealed only two reported military cases involving a factual situation (contract murder) similar to the one present in this case. United States v. Vanderlip, 28 MJ. 1070 (N.M.C.M.R.l989); United States v. Jones, 14 M.J. 740 (A.F.C.M.R.l982). In both those cases the accused was charged with soliciting another to commit murder, not attempted murder. They are not dispositive of the issue we face. See also United States v. Thomas, 13 U.S.C.M.A. 278. 32 C.M.R. 278 (1962) for an excellent and extensive discussion of the various principles developed by courts and legal scholars in an effort to deal with attempt crimes where impossibility of completion of the substantive crime is involved.

[5] It should be recognized that many of these decisions rest, at least in part, upon interpretation of state statutes.

[6] See Annotation, What Constitutes Attempted Murder. 54 ALR 3d 612 (1974) for an extensive discussion of this subject.

[7] Section 5.01 of the ALI Model Penal Code addresses criminal attempt. It provides in part:

(3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another t0 commit a crime which would establish his complicity under Section 2.06 if the crime were committed by such other person is guilty of an attempt to commit the crime, although the crime is not Committed or attempted by such other person.

Section 2.06 deals with liability for conduit of another.

[8] The defense theory at trial was that Senior Airman Church was a peaceful, happy-go-lucky individual, hurting from a difficult divorce, who fell victim to an OSI machine. His counsel forcefully argued this position on his behalf. “This machine was used lo scare, intimidate, and overwhelm Airman Church lo go along with the plan that was designed and created by the OSI. The situation was induced. They create an offense where there never was one." The military judge provided the members instructions on the defense of entrapment.  By their findings, the jury determined this defense did not exist. We agree.