*403Roberts, C. J.

These are two indictments, one (No. 70-573) charging the defendant, Henry Rose, with leaving the scene of an accident, death resulting, in violation of *404G. L. 1956 (1968 Reenactment) §31-26-l1 and the other (No. 70-572) charging the defendant with manslaughter. The defendant was tried on both indictments to a jury in the Superior Court, and a verdict of guilty was returned in each case. Thereafter the defendant’s motions for a new trial were denied, and he is now prosecuting a bill of exceptions in each case in this court.

These indictments followed the death of David J. Mc-Enery, who was struck by defendant’s motor vehicle at the intersection of Broad and Summer Streets in Providence at about 6:30 p.m. on April 1, 1970. According to the testimony of a bus driver, he had been operating his vehicle north on Broad Street and had stopped at a traffic light at the intersection of Summer Street. While the bus was standing there, he observed a pedestrian starting to cross Broad Street, and as the pedestrian reached the middle of the southbound lane he was struck by a “dirty, white station wagon” that was proceeding southerly on Broad Street. The pedestrian’s body was thrown up on the hood of the car. The bus driver further testified that the station wagon stopped momentarily, the body of the pedestrian rolled off the hood, and the car immediately drove off along Broad Street in a southerly direction. The bus operator testified that he had alighted from his bus, intending to attempt to assist the victim, but was unable to locate the body.

Subsequently, it appears from the testimony of a police *405■officer, about 6:40 p.m. the police located a white station wagon on Haskins Street, a distance of some 610 feet from the scene of the accident. The police further testified that a body later identified as that of David J. McEnery was wedged beneath the vehicle when it was found and that the vehicle had been registered to defendant.

Testifying on behalf of the state was a Robert Buckley, who stated that he had worked with defendant and that about 5 p.m. on the day of the accident he had gone to a place located in Central Falls that he identified as The Palms where he met defendant about 5:15 p.m. Buckley further testified that about 7 p.m. that evening defendant phoned him, told him that he had been involved in an accident, and asked Buckley to help him look for his car. According to Buckley, he picked up defendant’s girl friend, identified as Pat, and went to the vicinity of the accident and drove around for some time but was unable to locate the car.

Buckley testified that later he picked up defendant, who asked him to take him to a cafe in Central Falls known as The Well, where he would attempt to establish an alibi. After arriving at The Well, defendant asked Buckley to take him to the Central Falls police station, where defendant reported that his car had been stolen from in front of The Well sometime between 5:30 p.m. and 9 p.m. on that day. Buckley later drove defendant to Pat’s home, and while there defendant answered a telephone call. After the telephone call had been completed, defendant told Buckley that “a guy had been killed.” According to Buckley, defendant “was denying it on the ’phone” during the conversation.

We turn, first, to defendant’s contention that the trial court erred in denying his motion for a directed verdict of acquittal in each case. It is settled that such a motion challenges the sufficiency of the evidence adduced by the *406state to support a verdict of guilty beyond a reasonable doubt. Where the evidence so adduced is insufficient to meet such burden of proof, it is error to submit the case to a jury. State v. Lisi, 105 R.I. 516, 253 A.2d 239 (1969). In a criminal case the trial justice, in passing on such a motion, is required to give full credibility to the state’s evidence, view it in a light most favorable to the state, and draw therefrom every reasonable inference consistent with guilt. However, where the evidence adduced by the state and the reasonable inferences to be drawn therefrom, even when viewed in a light most favorable to the state, are insufficient to establish guilt beyond a reasonable doubt, the court must grant the defendant’s motion for a directed verdict. State v. Saulnier, 109 R.I. 11, 280 A.2d 85 (1971).

The defendant, contending that the evidence adduced in these cases is entirely circumstantial, urges that to warrant a jury in finding the accused guilty beyond a reasonable doubt, it is necessary not only that the evidence be consistent with a conclusion of guilt but must also at the same time be inconsistent with any reasonable hypothesis of innocence. This, the circumstantial evidence rule, so called, is followed in this state. State v. Franklin, 103 R.I. 715, 241 A.2d 219 (1968); State v. Montella, 88 R.I. 469, 149 A.2d 919 (1959).

While we do not agree as to the character of the evidence, we are unable to perceive that the test of the sufficiency of a combination of direct and circumstantial evidence to determine its adequacy to warrant a conclusion of guilt beyond a reasonable doubt would differ materially from that set out in the circumstantial evidence rule. That rule obviously derives from the fundamental rule applied in all criminal cases to test the sufficiency of evidence to support a finding of guilt beyond a reasonable doubt. It is resorted to, in our opinion, to overcome *407a misconception of the probative thrust of circumstantial evidence, particularly with reference to cases where the findings must rest either entirely or in major part on circumstantial evidence.

It is well settled that there is no valid distinction between the probative force of direct and of circumstantial evidence. Any fact may be established by circumstantial evidence as sufficiently and completely as by positive, direct evidence. State v. Davis, 108 N.H. 45, 226 A.2d 873 (1967); State v. Dancyger, 29 N.J. 76, 148 A.2d 155 (1959); State v. Goodhart, 112 Vt. 154, 22 A.2d 151 (1941); 3 Wharton, Criminal Evidence (12th ed. 1955) §980 at 472-73.

Testing the sufficiency of mixed evidence to support a finding of guilt beyond a reasonable doubt requires the making of no distinction between direct evidence of a fact and evidence of circumstances from which the exist-1 ence of a fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct. In either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused. Nichols v. State, 5 Md. App. 340, 247 A.2d 722 (1968). “ ‘A conclusion of guilt requires proof beyond a reasonable doubt, and proof to that extent is proof which precludes every reasonable hypothesis except that which it tends to support, and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion.’ ” State v. Reid, 154 Conn. 37, 40, 221 A.2d 258, 259 (1966), quoting State v. Foord, 142 Conn. 285, 295, 113 A.2d 591, 596 (1955).

We are persuaded, then, that to test the sufficiency of evidence to support a finding of proof of guilt beyond a reasonable doubt requires that such evidence be consistent only with a reasonable theory of guilt. Where that evidence is consistent with any other reasonable conclusion, *408the guilt of the accused cannot be considered as having been established beyond a reasonable doubt.

The defendant here argues that in neither ease did the evidence exclude any reasonable hypothesis or theory of the innocence of defendant. In so arguing in case No. 70-572, charging defendant with manslaughter, defendant directs our attention to the fact that the court charged the jury that there was no evidence in the case of culpable negligence on the part of defendant up to and including the time at which Mr. McEnery was struck by the station wagon. He further charged the jury that, in order to find defendant guilty of manslaughter, it would be necessary to find that McEnery was alive immediately after the impact and that the conduct of defendant following the impact constituted culpable negligence.

The defendant is contending that if the evidence is susceptible of a finding that McEnery was killed upon impact, he was not alive at the time he was being dragged under defendant’s vehicle and defendant could not be found guilty of manslaughter. An examination of the testimony of the only medical witness makes it clear that, in his opinion, death could have resulted immediately upon impact by reason of a massive fracture of the skull. The medical witness also testified that death could have resulted a few minutes after the impact but conceded that he was not sure when it did occur.

We are inclined to agree with defendant’s contention in this respect. Obviously, the evidence is such that death could have occurred after defendant had driven away with McEnery’s body lodged under his car and, therefore, be consistent with guilt. On the other hand, the medical testimony is equally consistent with a finding that McEnery could have died instantly upon impact and, therefore, be consistent with a reasonable conclusion other than the guilt of defendant. It is clear, then, that, the testimony *409of the medical examiner lacking any reasonable medical certainty as to the time of the death of McEnery, we are unable to conclude that on such evidence defendant was guilty of manslaughter beyond a reasonable doubt. Therefore, we conclude, with respect to Indictment No. 70-572, that it was error to deny defendant’s motion for a directed verdict of acquittal. See State v. Dancyger, supra.

We are unable, however, to reach the same conclusion concerning the denial of the motion for a directed verdict of acquittal with respect to Indictment No. 70-573, in which defendant was charged with leaving the scene of an accident. The testimony adduced through the bus driver clearly establishes that at the time McEnery was struck his body was thrown up on the hood of the car and that while the car was standing still the body rolled off the hood and thereupon defendant drove off in a southerly direction. Later, the police found defendant’s station wagon on a side street some 610 feet from the point of impact with McEnery’s body wedged under the front of the car. The circumstances here are clearly consistent with a hypothesis of guilt, but it is clear that they are not consistent with any other reasonable hypothesis. We conclude, therefore, with respect to Indictment No. 70-573, that the trial court did not err in denying the motion for a directed verdict.

Because we conclude that the trial court erred in denying defendant’s motion for a directed verdict of acquittal in the case charging him with manslaughter, it is unnecessary for us to consider his contentions of error concerning his motion for a new trial in that case.

Therefore, we turn to consider his contention that it was error to deny his motion for a new trial in the case charging him with knowingly leaving the scene of an accident. One seeking to set aside a decision of a trial justice on a motion for a new trial has the burden of showing that *410the trial justice was either clearly wrong or that, in reviewing the evidence and the credibility and weight thereof, he misconceived or overlooked some relevant or material evidence on a controlling issue. State v. Correia, 106 R.I. 655, 262 A.2d 619 (1970); State v. Contreras, 105 R.I. 523, 253 A.2d 612 (1969).

In this case we have closely scrutinized the trial justice’s decision on the motion and are persuaded that he exhaustively examined the evidence and, in an exercise of his own independent judgment, passed upon the credibility of the witnesses and the weight to be given to their testimony. He makes it clear in his decision that he found the bus operator, who witnessed the impact, to be entirely credible and that the witness Buckley, who testified as to assisting the defendant to look for his car after the accident, was equally credible. He concluded that their testimony was sufficient to establish beyond a reasonable doubt that the defendant had knowledge that he had struck McEnery and that McEnery had sustained injuries and that the defendant had, with such knowledge, left the scene. In such circumstances we conclude that it was not error to deny the defendant’s motion for a new trial in this case.

The exception of the defendant to the denial of his motion for a directed verdict in the manslaughter case, Indictment No. 70-572, is sustained, and the judgment of conviction is reversed; all of the defendant’s exceptions to rulings in the case charging him with leaving the scene of an accident, Indictment No. 70-573, are overruled; and both cases are remitted to the Superior Court for further proceedings.

*411Richard J. Israel, Attorney General, Donald P. Ryan, Asst. Attorney General, R. Raymond Greco, Special Asst. Attorney General, for plaintiff.

Bevilacqua & Cicilline, Anthony S. DelGiudice, for defendant. '

OPINION OF THE COURT

Ciparick, J.

The issue to be considered in this appeal is under what circumstances a fleeing felon’s actions cause another’s death for purposes of Penal Law § 125.25 (3), the felony murder statute.

There was evidence at trial that, in the early morning hours of October 17, 1989, defendant, Eddie Matos, and two accomplices broke into a McDonald’s restaurant on Seventh Avenue and 40th Street in Manhattan by shattering the glass door with a sledgehammer. Once inside, Matos and his accomplices rounded up the employees at gunpoint. A maintenance worker, however, managed to escape and then returned to the restaurant with three police officers. As they approached the restaurant, they saw Matos run toward the back of the *511restaurant. The officers ran into the restaurant in time to see Matos climb up a ladder that led to the roof. Police Officer Dwyer hurriedly climbed up the ladder right behind Matos. About 10 seconds later, another officer, Sergeant Flanagan, proceeded up the ladder to the roof and later discovered Dwyer lying on his back about 25 feet down an airshaft. It took emergency services personnel about 45 minutes to rescue Dwyer from the airshaft, but he was later pronounced dead at Bellevue Hospital.

The Appellate Division affirmed the conviction of murder in the second degree, burglary in the second degree and attempted robbery. The Court concluded that the elements of felony murder were established. A Judge of this Court granted leave to appeal and we now affirm.

It is well established that in order for criminal responsibility to attach, a defendant’s actions must have been an actual contributory cause of death (People v Stewart, 40 NY2d 692, 697). It must be shown that the defendant sets in motion the events which ultimately result in the victim’s death (People v Kibbe, 35 NY2d 407). However, the defendant’s acts need not be the sole cause of death (Matter of Anthony M., 63 NY2d 270, 280).

Here, defendant’s conduct set in motion and legally caused the death of Police Officer Dwyer. Had defendant not first committed an armed violent felony and then attempted to escape by way of the roof, the officer would not have pursued him onto the roof, thereafter plunging to his death in the airshaft.

The trial court stressed to the jury that "but for” causation was only one step in determining cause in the criminal context, an aspect defendant-appellant does not dispute. Additionally, the jury was told that it must also find that defendant’s conduct was a sufficiently direct cause of the ensuing death before it could impose criminal responsibility. The defendant’s conduct qualifies as a sufficiently direct cause when the ultimate harm should have been reasonably foreseen (People v Kibbe, 35 NY2d, at 412, supra).

The accused need not commit the final, fatal act to be culpable for causing death. In Kibbe, the fatal act was inflicted by a passing truck driver who struck and killed the victim. The defendants were held to have caused his death, for the event was a directly foreseeable consequence of their own earlier act of abandoning the victim on the shoulder of a *512highway. In People v Kern (75 NY2d 638), the "Howard Beach” defendants were held to have caused their victim’s death even though he was actually killed by the intervening act of a passing motorist.

In People v Hernandez (82 NY2d 309), this Court held that the defendants initiated or participated in the chain of events that led to an officer’s death by attempting to rob an undercover officer in a failed drug transaction. Since, in initiating a gun battle, they should have foreseen that someone’s bullet might go astray, their conduct was a sufficiently direct cause of a backup officer’s death even though the shot which killed him was fired by another officer. The Court held (supra, at 319) that "[ijmmediate flight and attempts to thwart apprehension are patently within the furtherance of the cofelons’ criminal objective,” citing People v Gladman (41 NY2d 123). The Court further noted that foreseeability does not mean that the result must be the most likely event.

In the instant case, the jury was correctly given the issue as to whether it was foreseeable that upon defendant’s attempt to escape by way of the roof, he would be pursued by an officer. In those circumstances it should also be foreseeable that someone might fall while in hot pursuit across urban roofs in the middle of the night.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith and Levine concur; Judge Titone taking no part.

Order affirmed.

SAWYER, P.J.

Defendant was convicted, following a jury trial, of operating a motor vehicle while intoxicated (OWI) or while visibly impaired (OWVD and thereby causing death.1 He was sentenced to serve 3 to 15 years in prison. He now appeals and we reverse and remand.

At 2:00 a.m. on November 23, 2003, defendant was driving his sport utility vehicle (SUV) east on 17 Mile Road in northern Kent County. He attempted to turn north onto Edgerton Avenue and drove into the path of an oncoming car driven by Jason Reichelt. Reichelt’s car hit defendant’s SUV and spun 180 degrees, coming to rest on the centerline of 17 Mile Road. The SUV came *604to rest on the side of the road. It was later determined that defendant had a blood alcohol concentration of 0.16, which is twice the legal limit.2

Reichelt and his passenger, Jonathan Keiser, were not seriously injured, but Reichelt’s car was severely damaged and the headlights stopped working. Both men left the car and walked to the SUV to determine if anyone was injured. After speaking briefly with defendant, the two men walked back to Reichelt’s car. Reichelt indicated that he was aware that oncoming cars could hit his darkened car and that he wanted to determine if he could turn on the flashers. As Reichelt and Keiser stood by the car, an oncoming car driven by Tonya Welch hit Keiser, killing him.

At the center of this appeal is the issue of causation. Defendant argues that not only did the trial court improperly instruct the jury on causation, there was also insufficient evidence of causation to establish defendant’s guilt. Because the two issues are intertwined with the question of what must be proven to establish causation in such a case, we shall analyze both issues together beginning with a determination of what the prosecutor must show to establish causation.

As the Supreme Court discussed in People v Schaefer,3 causation consists of two components:

In criminal jurisprudence, the causation element of an offense is generally comprised of two components: factual cause and proximate cause. The concept of factual causation is relatively straightforward. In determining whether a defendant’s conduct is a factual cause of the result, one must ask, “but for” the defendant’s conduct, would the result have occurred? If the result would not have occurred absent the defendant’s conduct, then factual causation exists.

*605The existence of factual causation alone, however, will not support the imposition of criminal liability. Proximate causation must also be established. As we noted in [People v] Tims[, 449 Mich 83, 96; 534 NW2d 675 (1995)], proximate causation is a “legal colloquialism.” It is a legal construct designed to prevent criminal liability from attaching when the result of the defendant’s conduct is viewed as too remote or unnatural. Thus, a proximate cause is simply a factual cause “of which the law will take cognizance.”[4]

We initially note that there is no dispute at this point that defendant was intoxicated and that his driving was the cause of the initial accident.4 5 Furthermore, there is no argument that defendant’s driving was the factual or “but-for” cause of the second accident. This analysis is relatively straightforward: but for defendant causing the initial accident, the subsequent accident would not have occurred.

Of course, factual causation is relatively easy to establish. As the court in Welch v State observed, “[m]ankind might still be in Eden, but for Adam’s biting an apple.”6 But the question whether defendant is the proximate cause of the subsequent accident, and thus of the victim’s death, is not so easily resolved. Schaefer discussed this requirement in further detail:

For a defendant’s conduct to be regarded as a proximate cause, the victim’s injury must be a “direct and natural result” of the defendant’s actions. In making this determination, it is necessary to examine whether there was an *606intervening cause that superseded the defendant’s conduct such that the causal link between the defendant’s conduct and the victim’s injury was broken. If an intervening cause did indeed supersede the defendant’s act as a legally significant causal factor, then the defendant’s conduct will not be deemed a proximate cause of the victim’s injury.

The standard by which to gauge whether an intervening cause supersedes, and thus severs the causal link, is generally one of reasonable foreseeability. For example, suppose that a defendant stabs a victim and the victim is then taken to a nearby hospital for treatment. If the physician is negligent in providing medical care to the victim and the victim later dies, the defendant is still considered to have proximately caused the victim’s death because it is reasonably foreseeable that negligent medical care might be provided. At the same time, gross negligence or intentional misconduct by a treating physician is not reasonably foreseeable, and would thus break the causal chain between the defendant and the victim.

The linchpin in the superseding cause analysis, therefore, is whether the intervening cause was foreseeable based on an objective standard of reasonableness. If it was reasonably foreseeable, then the defendant’s conduct will be considered a proximate cause. If, however, the intervening act by the victim or a third party was not reasonably foreseeable — e.g., gross negligence or intentional misconduct — then generally the causal link is severed and the defendant’s conduct is not regarded as a proximate cause of the victim’s injury or death.[7]

With these basic principles in mind, we conclude that the trial court improperly instructed the jury on the issue of proximate cause. We review claims of instructional error de novo.8 The trial court is required to instruct jurors on “all elements of the crime charged and must not exclude consideration of material issues, *607defenses, and theories for which there is supporting evidence.”9 Instructions are to be read as a whole and not piecemeal to determine if error requiring reversal occurred.10 “It is error for the trial court to give an erroneous or misleading jury instruction on an essential element of the offense.”11

The trial court gave detailed and extensive instructions on factual causation, including reinforcement of the concept that defendant had to he “a” cause of the accident, but not necessarily “the” cause of the accident. But the trial court’s instructions on proximate cause and superseding intervening causes were virtually nonexistent. The trial court did implicitly touch on the issue of proximate cause when it instructed the jury that one of several causes “is a substantial factor in causing a death if, but for that cause’s contribution, the death would not have occurred, unless the death was an utterly unnatural result of whatever happened.” But the instructions also told the jury that another cause could be a superseding cause only if it was the sole cause:

Now it also necessarily follows that somebody else’s conduct, for example, by Mr. Keiser, or by some third party, even if that other conduct was wrong or itself negligent, does not cut off criminal liability unless the other cause was the only cause. Obviously, if somebody else’s conduct was the only reason Mr. Keiser died, then it can’t possibly be something to which Mr. Rideout contributed.

This is not a correct statement of the law. A superseding intervening cause does not need to be the only cause. Indeed, as the Court noted in Schaefer, while the defendant’s conduct in that cause was a factual cause of *608the accident, the victim’s conduct may also have been a cause and, more to the point, potentially a superseding cause.12 The effect of the trial court’s instructions was that the jury could convict defendant if they found him to be a factual cause of the accident and that the jury could find the existence of a superseding intervening cause only if that superseding intervening cause was the only cause of the second accident. The jury was not adequately instructed on the issues of proximate and intervening causes.13

This conclusion is enough to set aside defendant’s conviction, with directions to the trial court to properly instruct the jury on the causation issue. But we agree with defendant that the problem in this case goes even deeper, because there was insufficient evidence to establish proximate cause at all. We review a claim of insufficient evidence in a criminal trial de novo.14 We view the evidence in a light most favorable to the prosecution to determine if a rational trier of fact could find beyond a reasonable doubt that the essential elements of the crime were established.15

The troubling aspect of this case is that the second accident only occurred after Keiser had reached a position of safety (the side of the road) and then chose to reenter the roadway with Reichelt to check on the car. While foreseeability is the “linchpin” of the superseding causation analysis,16 and it is at least arguably foreseeable that a person involved in an accident would *609check on his or her vehicle even if it remains on the road, the analysis does not end there. As Professor Dressier discusses in Understanding Criminal Law (3d ed),17 there is no universal test for determining if an intervening cause is also a superseding cause:

One early twentieth century scholar observed that all efforts to set down universal tests that explain the law of causation are “demonstrably erroneous.” [Jeremiah Smith, Legal Cause in Actions of Tort, 25 Harv L R 223, 317 (1912).] There are no hard-and-fast rules for determining when an intervening cause supersedes the defendant’s conduct. However, there are various factors that assist the factfinder in the evaluative process.

Indeed, Dressier18 points out that to say that foreseeability is the “linchpin” is “a slight overstatement,” though it is of great significance. Rather, Dressier19 discusses six factors to be considered in determining if an intervening cause is a superseding cause.

Of the six factors discussed by Dressier, three are not relevant here. They are the (1) de minimis contribution to social harm factor, (2) the intended-consequences doctrine, and (3) the omissions factor.20 The foreseeability factor is relevant here, but its application is less than clear. As Dressier points out, a responsive intervening cause will establish proximate cause, while a coincidental intervening cause will not unless it was foreseeable.21 In discussing responsive intervening causes, Dressier points to the examples of a passenger in a capsized boat drowning while attempting to swim to shore and a wounded victim being negligently treated *610and dying. That is, the harm results from actions taken in response to the defendant’s conduct. A coincidental intervening cause would exist, for example, where the defendant’s conduct put the victim in the “wrong place at the wrong time,” such as an assault victim who is attacked by a “knife-wielding maniac” while waiting in the emergency room for treatment of the initial wounds.22

Whether the intervening cause is responsive or coincidental in the case at bar is arguable at best. On the one hand, the victim reentering the roadway to check on the vehicle was in direct response to the accident, though not in direct response to defendant’s having driven. On the other hand, Welch’s driving down the road when she did was entirely coincidental.

In our view, Reiser’s decision to reenter the roadway renders the foreseeability factor of little value to the analysis. Rather, that decision directly involves the two remaining factors identified by Dressier that are present here. Those two factors, we believe, compel the conclusion that the intervening cause of the second accident was also a superseding cause.

First, there is the apparent-safety doctrine, which Dressier describes as follows:

One scholar has observed that when a “defendant’s active force has come to rest in a position of apparent safety, the court will follow it no longer.” [Joseph H. Beale, The Proximate Consequences of an Act, 33 Harv L R 633, 651 (1920).] For example, consider a somewhat simplified version of the facts in State v Preslar [48 NC 421 (1856)]: D threatened the life of V, his spouse. As a consequence, V was forced to leave the house on a freezing night in order to protect herself. V walked to within 200 yards of her father’s home, where she would have been welcome, but she chose *611to spend the night in the extreme cold, rather than bother her father by entering the house. V froze to death during the night. Clearly, D was an actual cause of V’s death: but for D’s threatening conduct, V would not have gone out into the cold. But, V’s decision to sleep outside was also a but-for cause of her own death. Is D the proximate cause of V’s death? The court in Preslar answered this question in the negative.

The result may be explained in terms of the apparent-safety doctrine. D did not follow V from their home. When V reached the vicinity of her father’s house, she knew that she could enter and be free from immediate harm. Therefore, her decision to sleep outside constituted a superseding intervening cause.[23]

Similarly, in the case at bar, Reiser had reached a position of apparent safety: he had gotten out of the vehicle and was alongside the road, off the pavement. Had the second accident occurred before Reiser could extricate himself from the Reichelt vehicle and get to the side of the road, then the causal chain would have been intact. But he was able to get out of harm’s way and to a relatively safe position at the side of the road. He then made the choice to return to the roadway and place himself in a more dangerous position. Like the victim in Preslar, Reiser made a decision regarding his actions after the immediate danger was over. And that decision, like the decision in Preslar, ended the initial causal chain and started a new one, one for which defendant was not responsible.

The point of a person making a decision brings us to the remaining factor discussed in Dressier, that of voluntary human intervention:

A defendant is far more apt to be relieved of criminal responsibility in the case of a “free, deliberate, and informed” [Hart & Honoré, Causation in the Law (2d ed *6121985), p 326] — a voluntary, knowing, and intelligent— human agent than in the case of an intervention of a natural force or the actions of a person whose conduct is not fully free. The result in the Preslar case, described [above], can be explained in terms of this factor. V chose to sleep in the cold rather than to enter her father’s home. Her decision was free, deliberate, and with full knowledge of the fact that it was exceedingly cold outside. Under these circumstances, the responsibility for her death is shifted from D to V. This outcome is consistent with the retributive principle that accords special significance to the freewill actions of human agents.[24]

Similarly, in the case at bar, Reiser made the voluntary decision to return to the vehicle on the roadway, despite the danger that it posed. He could have chosen to remain on the side of the road. He chose instead to reenter the roadway, with the danger of standing in the roadway next to an unlit vehicle in the middle of the night being readily apparent.

In sum, we conclude that the prosecution failed to present sufficient evidence to establish that defendant’s actions were a proximate cause of Reiser’s death. Therefore, we vacate defendant’s conviction for OWI/OWVT causing death.

There remains the problem of the remedy. Under People v Randolph,25 while defendant cannot be retried on the charge for which we found insufficient evidence, we can direct the entry of a conviction for a necessarily included lesser offense on which the jury was instructed. In this case, the jury was instructed on two lesser offenses: operating a motor vehicle while under the influence of intoxicating liquor26 and operating a *613motor vehicle while visibly impaired (OWVI).27 A charge of OWI/OWVI causing death may be based on the commission of either of those offenses. MCL 257.625(4). Therefore, in convicting defendant of OWI/OWVI causing death, the jury of necessity had to find that defendant was either operating while intoxicated or operating while visibly impaired. But the nature of the verdict form renders it impossible to determine which of the two the jury found to be the case. Accordingly, we believe that the appropriate remedy is to direct the trial court to enter a conviction for the lesser offense, OWVI, and to sentence defendant for that offense. If the prosecutor believes that a conviction on the greater offense of OWI28 would better serve the interests of justice, he may, at any time before sentencing, inform the trial court that he wishes to try defendant on a charge of OWI instead of a conviction being entered under MCL 257.625(3).

In light of our resolution of the above issues, we need not decide defendant’s remaining issue.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

HUBBART, Judge.

This is an appeal by the defendant Isaac Alejandro Velazquez from a final judgment of conviction and sentence for vehicular homicide which was entered below upon a nolo contendere plea. The defendant, upon entry of such plea, specifically reserved for appeal the denial of his pretrial motion to dismiss the information herein under Fla.R.Crim.P. 3.190(c)(4). The sole issue presented for review is whether a defendant driver of a motor vehicle who participates in a reckless and illegal “drag race” on a public road may be properly convicted of vehicular homicide [§ 782.071, Fla.Stat. (1987)] for the death of one of the co-participant drivers suffered in the course of the “drag race” — when the sole basis for imposing liability is the defendant’s participation in said race. We hold that the defendant may not be held criminally liable under the above statute in such case because the co-participant driver, in effect, killed himself by his voluntary and reckless driving in the subject “drag race” and thus the defendant’s actions in engaging in the said race was not a proximate cause of the co-participant’s death.

I

The defendant Velazquez was charged by information with the crime of vehicular homicide. Specifically, the information alleged that on April 23, 1988, the defendant

“did unlawfully and feloniously operate a motor vehicle in a reckless manner, to wit: Participated in a DRAG RACE, RAN A STOP SIGN and EXCEEDED the SPEED LIMIT with his VEHICLE, and thereby cause the death of ADAL-BERTO ALVAREZ, in violation of 782.-071 Florida Statutes.”

The defendant filed a motion to dismiss this information under Fla.R.Crim.P. 3.190(c)(4) on the ground that the undisputed material facts in the case demonstrated that the state did not, as a matter of law, have a prima facie case of vehicular homicide against the defendant. The defendant set forth in the motion to dismiss certain facts which he swore to be true in open court at the hearing on the subject motion.1 The *349state filed a traverse in which it altered one non-material fact stated in the motion to dismiss and added an additional set of facts based on sworn depositions taken in the case. Accepting the sworn facts stated in the motion to dismiss, as supplemented and altered by the traverse, the material undisputed facts in the case are as follows.

On April 23, 1988, at approximately 2:30 A.M., the defendant Velazquez met the deceased Adalberto Alvarez at a Hardee’s restaurant in Hialeah, Florida. The two had never previously met, but in the course of their conversation agreed to race each other in a “drag race” with their respective automobiles. They, accordingly, left the restaurant and proceeded to set up a quarter-mile “drag race” course on a nearby public road which ran perpendicular to a canal alongside the Palmetto Expressway in Hialeah; a guardrail and a visible stop sign2 stood between the end of this road and the canal. The two men began their “drag race” at the end of this road and proceeded away from the canal in a westerly direction for one-quarter mile. Upon completing the course without incident, the deceased Alvarez suddenly turned his automobile 180 degrees around and proceeded east toward the starting line and the canal; the defendant Velazquez did the same and followed behind Alvarez. Alvarez proceeded in the lead and attained an estimated speed of 123 m.p.h.; he was not wearing a seat belt and subsequent investigation revealed that he had a blood alcohol level between .11 and .12. The defendant Velazquez, who had not been drinking, trailed Alvarez the entire distance back to the starting line and attained an estimated speed of 98 m.p.h. As both drivers approached the end of the road, they applied their brakes, but neither could stop. Alvarez, who was about a car length ahead of the defendant Velazquez, crashed through the guardrail first and was propelled over the entire canal, landing on its far bank; he was thrown from his car upon impact, was pinned under his vehicle when it landed on him, and died instantly from the resulting injuries. The defendant also crashed through the guardrail, but landed in the canal where he was able to escape from his vehicle and swim to safety uninjured.

Based on these facts, the trial court denied the motion to dismiss, finding that it was a question of fact for the jury as to whether the defendant’s participation in the “drag race” was a sufficient legal cause of the deceased’s death so as to support a conviction for vehicular homicide. The defendant subsequently entered a plea of nolo contendere and reserved for appeal the denial of his motion to dismiss; the trial court then placed the defendant on four years probation. This appeal follows.

II

The vehicular homicide statute, under which the defendant was charged and convicted, provides as follows:

“ ‘Vehicular homicide’ is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is a felony of the third degree, punishable as provided in s. 775.082, s. 775.-083, or s. 775.084.”

§ 782.071(1), Fla.Stat. (1987). There are two statutory elements to vehicular homi-cide: (1) the defendant must operate a motor vehicle in a reckless manner likely to cause the death of, or great bodily harm to, another, and (2) this reckless operation of a *350motor vehicle must be the proximate cause of the death of a human being. Byrd v. State, 531 So.2d 1004, 1006 (Fla. 5th DCA 1988); M.C.J. v. State, 444 So.2d 1001, 1004-05 (Fla. 1st DCA), rev. denied, 451 So.2d 849 (Fla.1984); J.A.C. v. State, 374 So.2d 606, 607 (Fla. 3d DCA 1979), rev. denied, 383 So.2d 1203 (Fla.1980); compare Fla.Std. Jury Instr. (Crim.) 72 (1989) (vehicular homicide).

Contrary to the defendant’s argument, we have no trouble in concluding that the first element of this offense is clearly established on this record. Plainly, the defendant operated a motor vehicle in a reckless manner, likely to cause death or great bodily harm to another, in that (a) he participated in a highly dangerous “drag race” with the deceased on a public road in which both lanes were used as a speedway, and (b) he drove his vehicle at the excessive speed of 98 m.p.h. during the “drag race.” Without question, the defendant’s motor vehicle operation endangered the lives of all persons in the vicinity of the “drag race,” namely, people in other motor vehicles and nearby pedestrians. See McCreary v. State, 371 So.2d 1024 (Fla.1979).

The second element of this offense, however, has given us considerable pause, as no doubt it did the trial court, because no endangered third party in the vicinity of the “drag race” was killed in this case; moreover, it is here that the parties to this appeal marshal their primary authorities and argument. It is therefore necessary that we consult the Florida law on this subject, and survey as well the relevant law thereon throughout the country. Nonetheless, we approach this subject with a certain degree of caution, mindful that the problems raised by the element of “proximate cause” in cases of this nature “present enormous difficulty (especially in homicide [cases]) because of the obscurity of that concept,” an obscurity which has resulted in the announcement of “varying and sometimes inconsistent rules in the numerous areas in which the problem has arisen.” Model Penal Code and Commentaries § 2.03 comment 1, at 255-56 (1985).

A

At the outset, it seems clear that the proximate cause element of vehicular homicide in Florida embraces, at the very least, a causation-in-fact test; that is, the defendant’s reckless operation of a motor vehicle must be a cause-in-fact of the death of a human being. In this respect, vehicular homicide is no different than any other criminal offense in which the occurrence of a specified result, caused by a defendant’s conduct, is an essential element of the offense — such as murder, [§ 782.04, Fla.Stat. (1989)], manslaughter [§ 782.07, Fla.Stat. (1989)], aggravated battery [§ 784.045, Fla.Stat. (1989) ], and arson [§ 806.01, Fla. Stat. (1989) ]. Clearly there can be no criminal liability for such result-type offenses unless it can be shown that the defendant’s conduct was a cause-in-fact of the prohibited result, whether the result be the death of a human being, personal injury to another, or injury to another’s property. To be sure, this cause-in-fact showing is insufficient in itself to establish the aforesaid “proximate cause” element in a vehicular homicide case, but it is clearly a sine qua non ingredient thereof. 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.12(a),(b), at 390-96 (1986); Model Penal Code and Commentaries § 2.03 explanatory note, at 254 (1985).

Courts throughout the country have uniformly followed the traditional “but for” test in determining whether the defendant’s conduct was a cause-in-fact of a prohibited consequence in result-type offenses such as vehicular homicide. Under this test, a defendant’s conduct is a cause-in-fact of the prohibited result if the said result would not have occurred “but for” the defendant’s conduct; stated differently, the defendant’s conduct is a cause-in-fact of a particular result if the result would not have happened in the absence of the defendant’s conduct. Thus, a defendant’s reckless operation of a motor vehicle is a cause-in-fact of the death of a human being under Florida’s vehicular homicide statute [§ 782.071(1), Fla.Stat. (1987)] if the subject death would not have occurred “but for” the defendant’s reckless driving or *351would not have happened in the absence of such driving. 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.12(b), at 393-94 (1986); Model Penal Code and Commentaries § 2.03 and comment 2, at 257-58 (1985); compare Stahl v. Metropolitan Dade County, 438 So.2d 14, 17-18 (Fla. 3d DCA 1983).

In relatively rare cases, however, the “but for” test for causation-in-fact fails and has been abandoned in favor of the “substantial factor” test. This anomaly occurs when two defendants, acting independently and not in concert with one another, commit two separate acts, each of which alone is sufficient to bring about the prohibited result — as when two defendants concurrently inflict mortal wounds upon a human being, each of which is sufficient to cause death. In such case, each defendant’s action was not a “but for” cause of death because the deceased would have died even in the absence of each defendant’s conduct — although obviously not in the absence of both defendants’ conduct considered together. In these rare cases, the courts have followed a “substantial factor” test, namely, the defendant’s conduct is a cause-in-fact of a prohibited result if the subject conduct was a “substantial factor” in bringing about the said result. Thus, each defendant’s conduct in independently and concurrently inflicting mortal wounds on a deceased clearly constitutes a “substantial factor” in bringing about the deceased’s death, and, consequently, is a cause-in-fact of the deceased’s death. 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.12(b), at 394-95 (1986); compare Stahl v. Metropolitan Dade County, 438 So.2d 14, 18 (Fla. 3d DCA 1983).

B

The “proximate cause” element of vehicular homicide in Florida embraces more, however, than the aforesaid “but for” causation-in-fact test as modified by the “substantial factor” exception. Even where a defendant’s conduct is a cause-in-fact of a prohibited result, as where a defendant’s reckless operation of a motor vehicle is a cause-in-fact of the death of a human being, Florida and other courts throughout the country have for good reason declined to impose criminal liability (1) where the prohibited result of the defendant’s conduct is beyond the scope of any fair assessment of the danger created by the defendant’s conduct, or (b) where it would otherwise be unjust, based on fairness and policy considerations, to hold the defendant criminally responsible for the prohibited result. See 1 W. LaFave & A. Scott, Substantive Criminal Law § 3.12(c)-(h), at 396-421 (1986), and cases collected; compare M.C.J. v. State, 444 So.2d 1001, 1004-05 (Fla. 1st DCA), rev. denied, 451 So.2d 849 (Fla.1984); Stahl v. Metropolitan Dade County, 438 So.2d 14, 19 (Fla. 3d DCA 1983).

In deaths resulting from illegal “drag racing” on a public road, as here, it has been held in Florida that the driver of one of the racing vehicles was properly convicted of manslaughter when the driver of another vehicle in the race collided head on with a non-participant motor vehicle which was lawfully using the subject highway, killing the driver of same. Jacobs v. State, 184 So.2d 711 (Fla. 1st DCA 1966). The court reasoned that the defendant, by participating in the “drag race,” was aiding and abetting each of the other participant drivers in the race in committing reckless driving — so that when one of the participants committed a manslaughter in the course of the race against a third party, the defendant was also guilty of manslaughter. In reaching this result, the court relied on the following rules of law stated by Wharton and Clark & Marshall:

“ ‘ * * * If each of two persons jointly engage in the commission of acts which amount to criminal negligence, and as a result of which a third person is killed, each may be found guilty of manslaughter even though it may be impossible to say whose act actually caused the death.’

‘There may be principals in the second degree and accessories before the fact to involuntary manslaughter. Thus, if two men drive separate vehicles at a furious and dangerous speed along the *352highway, each inciting and abetting the other, and one of them drives over and kills a person, the one thus causing the death is guilty of manslaughter as principal in the first degree, and the other is guilty as principal in the second degree. * * *

Jacobs v. State, 184 So.2d at 716 (quoting 1 Wharton, Criminal Law and Procedure § 290 (Anderson 1957) and Clark & Marshall, Crimes, 3d ed. § 164) (emphasis added).

Where, however, a participant passenger in such an illegal “drag race,” accidently grabs the steering wheel of a vehicle involved in the race, instead of the gear shift he was assigned to operate, causing the vehicle to go out of control, crash, and kill the passenger — this court has held that the defendant driver of the subject motor vehicle was improperly convicted of vehicular homicide. J.A.C. v. State, 374 So.2d 606 (Fla. 3d DCA 1979), rev. denied, 383 So.2d 1203 (Fla.1980). The court reasoned that the passenger’s reckless act of grabbing the steering wheel was an independent intervening act which superseded the respondent’s wrongful conduct in participating in the “drag race.” Id. at 607. Although, obviously, the respondent’s participation in the subject race was a “but for” cause-in-fact of the passenger’s death and such death was plainly within the scope of the danger created by the defendant’s conduct in participating in the race — this court nonetheless implicitly concluded that it would be unjust to hold the defendant criminally responsible for the passenger’s death because the passenger, in effect, killed himself by his own reckless conduct.

The result reached in J.A.C. is in accord with the weight of better-reasoned decisions on this subject throughout the country. These courts have uniformly concluded that a driver-participant in an illegal “drag race” on a public road cannot be held criminally responsible for the death of another driver participant when (a) the deceased, in effect, kills himself by his own reckless driving during the race, and (b) the sole basis for attaching criminal liability for his death is the defendant’s participation in the “drag race.” 3 The policy reasons for reaching this result are best expressed in State v. Petersen, 17 Or.App. 478, 495, 522 P.2d 912, 920 (1974) (Schwab, C.J., dissenting) (dissent adopted by the Oregon Supreme Court in State v. Petersen, 270 Or. 166, 526 P.2d 1008 (1974)):

“[T]he question is whether defendant’s reckless conduct ‘caused’ the death of the victim. The problem here is not ‘causation in fact,’ it is ‘legal causation.’ In unusual cases like this one, whether certain conduct is deemed to be the legal cause of a certain result is ultimately a policy question. The question of legal causation thus blends into the question of whether we are willing to hold a defendant responsible for a prohibited result. Or, stated differently, the issue is not causation, it is responsibility. In my opinion, policy considerations are against imposing responsibility for the death of a participant in a race on the surviving racer when his sole contribution to the death is the participation in the activity mutually agreed upon.

It is not unheard of for people to engage in hazardous vocations and avocations. It could be said, for example, that professional racetrack drivers earn their living by consciously disregarding a substantial risk that death will occur on the racetrack. Yet, it would probably strike most people as strange if the surviving drivers were prosecuted for manslaughter following a fatal racetrack acci-' dent....

My point is that people frequently join together in reckless conduct. As long as all participants do so knowingly and voluntarily, I see no point in holding the survivor(s) guilty of manslaughter if the reckless conduct results in death.... ”

*353522 P.2d at 920-21 (citations and footnote omitted). LaFave and Scott also summarize the legal basis for these decisions:

“It is submitted that the true reason for the holding [in these cases] is the court’s feeling ... that A should not, in all justice, be held for the death of B who was an equally willing and foolhardy participant in the bad conduct which caused his death.”

1 W. LaFave and A. Scott, Substantive Criminal Law § 3.12, at 418 (1986).

Ill

Turning now to the instant case, it is clear that the defendant’s reckless operation of a motor vehicle in participating in the “drag race” with the deceased was, technically speaking, a cause-in-fact of the deceased’s death under the “but for” test. But for the defendant’s participation in the subject race, the deceased would not have recklessly raced his vehicle at all and thus would not have been killed. However, under the authority of J.A.C. and the better reasoned decisions throughout the country, the defendant’s participation in the subject “drag race” was not a proximate cause of the deceased’s death because, simply put, the deceased, in effect, killed himself by his own volitional reckless driving—and, consequently, it would be unjust to hold the defendant criminally responsible for this death.

The undisputed facts in this case demonstrate that the “drag race” was, in effect, over when the defendant and the deceased had completed the agreed-upon one-quarter mile course and had crossed the finish line. Unexpectedly, however, the deceased suddenly whirled his vehicle around and headed back toward the starting line and the canal which ran perpendicular to the road on which he was travelling; although the defendant then followed, it is plain that it was the deceased's sole decision to return to the starting line, as apparently this had not previously been agreed upon. At any rate, the deceased, who had consumed a considerable amount of alcohol and was wearing no seat belt, attained an estimated speed of 123 m.p.h. on his return trip; applied the brakes as he approached the end of the road but was unable to stop; crashed through a protective guard rail; and incredibly vaulted the entire canal, landing on the far bank. He was thrown from his vehicle upon impact, was pinned under the vehicle when it landed on him, and died instantly from the resulting injuries. Although the defendant was about one-car length in back of the deceased during the deceased’s fatal return to the starting line, the defendant at no time struck the deceased's vehicle and did not physically propel it in any way across the canal. Clearly, the deceased was on a near-suicide mission when, on his own hook, he returned to the starting line of the race after the race was apparently over, attaining a murderous speed of 123 m.p.h., vaulted a canal, and killed himself. This being so, it would be unjust to hold the defendant criminally responsible for the deceased’s unexpected and near-suicidal conduct.

We agree that if the deceased had collided with an oncoming motorist who happened to be in the vicinity lawfully using the subject road resulting in the said motorist’s death, the defendant would be criminally liable for this death on an aiding- and-abetting theory; clearly, the deceased would be guilty of vehicular homicide in killing the oncoming motorist, and the defendant, in participating in the illegal “drag race,” would be aiding and abetting the deceased in the latter’s reckless driving and ultimate negligent homicide. Jacobs v. State, 184 So.2d 711 (Fla. 1st DCA 1966). In such a case, however, the oncoming motorist could in no way be said to be responsible for his own death and, consequently, no policy or fairness reason would exist for finding no proximate cause. Clearly, this cannot be said in the instant case.

The state nonetheless relies on cases from other jurisdictions which have reached a contrary result to the one we reach herein.4 We have reviewed these cases, but are not persuaded by their rea-*354soiling because we think they lead to an unjust result. In our judgment, it is simply unfair, unjust, and just plain wrong to say that the defendant in the instant case is criminally responsible for the death of the deceased when it is undisputed that the deceased, in effect, killed himself. No one forced this young man to participate in the subject “drag race”; no one forced him to whirl around and proceed back toward the canal after the race was apparently over; no one forced him to travel 123 m.p.h., vault a canal, and kill himself upon impact. He did all these things himself, and was, accordingly, the major cause of his own death. We are constrained by law to construe criminal statutes strictly in favor of the accused, § 775.021(1), Fla.Stat. (1989), and, given this salutary principle of statutory construction, we are unwilling to construe our vehicular homicide statute to impose criminal liability on the defendant under the circumstances of this case.

The final judgment of conviction and sentence under review is reversed, and the cause is remanded to the trial court with directions to grant the defendant’s motion to dismiss.

Reversed and remanded.

Opinion by

Mb. Chief Justice Jones,

•The appellant was found guilty of involuntary manslaughter for the death of his competitor in the course of an automobile race between them on a highway. The trial court overruled the defendant’s demurrer to the Commonwealth’s evidence and, after verdict, denied his motion in arrest of judgment. On appeal from the judgment of sentence entered on the jury’s verdict, the Superior Court affirmed. We granted allocatur because of the important question present as to whether the defendant’s unlawful and reckless conduct was a sufficiently direct cause of the death to warrant his being charged with criminal homicide.

The testimony, which is uncontradicted in material part, discloses that, on the night of the fatal accident, the defendant accepted the deceased’s challenge to engage in an automobile race; that the racing took place on a rural 3-lane highway; that the night was clear and dry, and traffic light; that the speed limit on the highway was 50 miles per hour; that, immediately pri- or to the accident, the two automobiles were being operated at varying speeds of from 70 to 90 miles per hour; that the accident occurred in a no-passing zone on the approach to a bridge where the highway narrowed to two directionally-opposite lanes; that, at the time of the accident, the defendant was in the lead and was proceeding in his right-hand lane of travel; that the deceased, in an attempt to pass the defendant’s automobile, when a truck was closely approaching from the opposite direction, swerved his car to the left, crossed the highway’s white dividing line and drove his automobile on the wrong side of the highway head-on into the oncoming truck with resultant fatal effect to himself.

This evidence would of course amply support a conviction of the defendant for speeding, reckless driving *574and, perhaps, other violations of The Vehicle Code of May 1, 1929, P. L. 905, as amended. In fact, it may be noted, in passing, that the Act of January 8, 1960, P. L. (1959) 2118, §3, 75 PS §1041, amending The Vehicle Code of April 29, 1959, P. L. 58, 75 PS §101 et seq., makes automobile racing on a highway an independent crime punishable by fine or imprisonment or both up to $500 and three years in jail. As the highway racing in the instant case occurred prior to the enactment of the Act of 1960, cit. supra, that statute is, of course, not presently applicable. In any event, unlawful or reckless conduct is only one ingredient of the crime of involuntary manslaughter. Another essential and distinctly separate element of the crime is that the unlawful or reckless conduct charged to the defendant was the direct cause of the death in issue. The first ingredient is obviously present in this case but, just as plainly, the second is not.

While precedent is to be found for application of the tort law concept of “proximate cause” in fixing responsibility for criminal homicide, the want of any rational basis for its use in determining criminal liability can no longer be properly disregarded. When proximate cause was first borrowed from the field of tort law and applied to homicide prosecutions in Pennsylvania, the concept connoted a much more direct causal relation in producing the alleged culpable result than it does today. Proximate cause, as an essential element of a tort founded in negligence, has undergone in recent times, and is still undergoing, a marked extension. More specifically, this area of civil law has been progressively liberalized in favor of claims for damages for personal injuries to which careless conduct of others can in some way be associated. To persist in applying the tort liability concept of proximate cause to prosecutions for criminal homicide after the marked expansion of civil liability of defendants in tort actions *575for negligence would be to extend possible criminal liability to persons chargeable with unlawful or reckless conduct in circumstances not generally considered to present the likelihood of a resultant death.

In this very case (Commonwealth v. Root, 191 Pa. Superior Ct. 238, 245, 156 A. 2d 895) the Superior Court mistakenly opined that “The concept of proximate cause as applied in tort eases is applicable to similar problems of causation in criminal cases. Commonwealth v. Almeida, 362 Pa. 596, 603, 611, 68 A. 2d 595 (1949).” It is indeed strange that the Almeida case should have been cited as authority for the above quoted statement; the rationale of the Almeida case was flatly rejected by this Court in Commonwealth v. Redline, 391 Pa. 486, 504-505, 137 A. 2d 472 (1958), where we held that the tort liability concept of proximate cause is not a proper criterion of causation in a criminal homicide case. True enough, Commonwealth v. Redline was a murder case, but the distinction between murder and involuntary manslaughter does not rest upon a differentiation in causation; it lies in the state of mind of the offender. If one kills with malice aforethought, he is chargeable with murder; and if death, though unintentional, results directly from his unlawful or reckless conduct, he is chargeable with involuntary manslaughter. In either event, the accused is not guilty unless his conduct was a cause of death sufficiently direct as to meet the requirements of the criminal, and not the tort, law.

The instant case is one of first impression in this State; and our research has not disclosed a single instance where a district attorney has ever before attempted to prosecute for involuntary manslaughter on facts similar ¡to those established by the record now before us. The closest case, factually, would seem to be Commonwealth v. Levin, 184 Pa. Superior Ct. 436, 135 A. 2d 764 (1957), which affirmed the defendant’s *576conviction of involuntary manslaughter. In the Levin case two cars were racing on the streets of Philadelphia at speeds estimated at from 85 to 95 miles per hour. The defendant’s car, in the left-hand lane, was racing alongside of the car in which the deceased was a passenger when the defendant turned his automobile sharply to the right in front of the other car, thereby causing the driver of the latter car to lose control and smash into a tree, the passenger being thrown to the road and killed as a result of the impact. It is readily apparent that the elements of causation in the Levin case were fundamentally different from those in the present case. Levin’s act of cutting his automobile sharply in front of the car in which the deceased was riding directly forced that car off of the road and into the tree. The defendant’s reckless and unlawful maneuver was the direct cause of the crucial fatality. In the instant case, the defendant’s conduct was not even remotely comparable. Here, the action of the deceased driver in recklessly and suicidally swerving his car to the left lane of a 2-lane highway into the path of an oncoming truck was not forced upon him by any act of the defendant; it was done by the deceased and by him alone, who thus directly brought about his own demise. The Levin case was properly decided but it cannot, by any ratiocination, be utilized to justify a conviction in the present case.

Legal theory which makes guilt or innocence of criminal homicide depend upon such accidental and fortuitous circumstances as are now embraced by modern tort law’s encompassing concept of proximate cause is too harsh to be just. A few illustrations should suffice to so demonstrate.

In Mautino v. Piercedale Supply Co., 338 Pa. 435, 13 A. 2d 51 (1940), — a civil action for damages — we held that where a man sold a cartridge to a person under 16 years of age in violation of a State statute and *577the recipient subsequently procured a gun from which he fired the-cartridge injuring someone, the-injury was proximately caused by the act of the man who sold the cartridge to the underage person. If proximate cause were the test for criminal liability and the injury to the plaintiff in the Mcmtino case had been fatal, the man who sold the bullet to the underage person (even though the boy had the appearance of an adult) would have been guilty of involuntary manslaughter, for Ms unlawful act would, according to the tort law standard, have been the proximate cause of the death.

In Schelin v. Goldberg, 188 Pa. Superior Ct. 341, 146 A. 2d 648 (1958), it was held that the plaintiff, who was injux*ed in a fight, could recover in tort against the defendants, the owners of a taproom who prior to the fight had unlawfully served the plaintiff drinks wMle he was in a visibly intoxicated condition, the unlawful action of the defendants -being held to be the proximate cause of the plaintiffs injuries. Here,-again, if proximate cause were the test for criminal liability and the plaintiff had been fatally injured in the fight, the taproom owners would have been guilty of involuntary manslaughter, for their unlawful act would have been no less the proximate cause of death.

In Marchl v. Dowling & Company, 157 Pa. Superior Ct. 91, 41 A. 2d 427 (1945), it was held that where a truck driver had double parked his truck and the minor plaintiff was struck by a passing car when she walked around the double parked truck, the truck driver’s employer was held liable in tort for the plaintiff’s injuries on the ground that the truck driver’s act of double parking, which violated both a State statute and a city ordinance, was the proximate cause of the plaintiff’s injuries. Here, also, if proximate cause were the test for criminal liability and the plaintiff’s injuries had been fatal, the truck driver would have been guilty of involuntary manslaughter since -his unlawful act *578would have been the proximate cause of the death for which his employer was held liable in damages under respondeat superior. To be guilty of involuntary manslaughter for double parking would, of course, be unthinkable, yet if proximate cause were to determine criminal liability, such a result would indeed be a possibility.

Even if the tort liability concept of proximate cause were to be deemed applicable, the defendant’s conviction of involuntary manslaughter in the instant case could not be sustained under the evidence. The operative effect of a supervening cause would have to be taken into consideration: Commonwealth v. Redline, supra, at p. 505. But, the trial judge refused the defendant’s point for charge to such effect and erroneously instructed the jury that “negligence or want of care on the part of . . . [the deceased] is no defense to the criminal responsibility of the defendant. . . .”

The Superior Court, in affirming the defendant’s conviction in this ease, approved the charge above mentioned, despite a number of decisions in involuntary manslaughter cases holding that the conduct of the deceased victim must be considered in order to determine whether the defendant’s reckless acts were the proximate (i.e., sufficiently direct) cause of his death. See Commonwealth v. Amecca, 160 Pa. Superior Ct. 257, 260-263, 50 A. 2d 725 (1947); Commonwealth v. Hatch, 149 Pa. Superior Ct. 289, 292, 27 A. 2d 742 (1942); Commonwealth v. Aurick, 138 Pa. Superior Ct. 180, 187, 10 A. 2d 22 (1939). The Superior Court dispensed with this decisional authority (see Commonwealth v. Root, supra, at p. 252) by expressly overruling Commonwealth v. Amecca, supra, and by impliedly overruling each of the other cases immediately above cited. It did so on the ground that there can be more than one proximate cause of death. The point is wholly irrelevant. Of course there can be more than one proxi*579mate cause of death just as there can also be more than one direct cause of death. For example, in the so-called “shield” cases where a felon interposes the person of an innocent victim between himself and a pursuing officer, if the officer should fire his gun at the felon to prevent his escape and fatally wound the person used as a shield, the different acts of the policeman and the felon would each be a direct cause of the victim’s death.

If the tort liability concept of proximate cause were to be applied in a criminal homicide prosecution, then the conduct of the person whose death is the basis of the indictment would have to be considered, not to prove that it was merely an additional proximate cause of the death, but to determine, under fundamental and long recognized law applicable to proximate cause, whether the subsequent wrongful act superseded the original conduct chargeable to the defendant. If it did in fact supervene, then the original act is so insulated from the ensuing death as not to be its proximate cause.

Under the uncontradicted evidence in this case, the conduct of the defendant was not the proximate cause of the decedent’s death as a matter of law. In Kline v. Moyer and Albert, 325 Pa. 357, 364, 191 Atl. 43 (1937), the rule is stated as follows: “Where a second actor has become aware of the existence of a potential danger created by the negligence of an original tortfeasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause.” See, in accord, DeLuca v. Manchester Laundry and Dry Cleaning Company, Inc., 380 Pa. 484, 491, 112 A. 2d 372 (1955); Jeloszewski v. Sloan, 375 Pa. 360, 365, 100 A. 2d 480 (1953); John *580 son v. Angretti, 364 Pa. 602, 606-607, 73 A. 2d 666 (1950).

In the case last above cited, while Angretti was driving his truck eastward along a highway, a bus, traveling in the same direction in front of him, stopped to take on a passenger. Angretti swerved his truck to the left into the lane of oncoming traffic in an attempt to pass the bus but collided with a tractor-trailer driven by the plaintiffs decedent, who was killed as a result of the collision. In affirming the entry of judgment n.o.v. in favor of the defendant bus company, we held that any negligence on the part of the bus driver, in suddenly bringing his bus to a halt in order to pick up a passenger, was not a proximate cause of the death of the plaintiff’s decedent since the accident “was due entirely to the intervening and superseding negligence of Angretti in allowing his truck to pass over into the pathway of the westbound tractor-trailer . . . .”

In the case now before us, the deceased was aware of the dangerous condition created by the defendant’s reckless conduct in driving his automobile at an excessive rate of speed along the highway but, despite such knowledge, he recklessly chose to swerve his car to the left and into the path of an oncoming truck, thereby bringing about the head-on collision which caused his own death.

To summarize, the tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide and more direct causal connection is required for conviction: Commonwealth v. Redline, supra, at pp. 504-505. In the instant case, the defendant’s reckless conduct was not a sufficiently direct cause of the competing driver’s death to make him criminally liable therefor.

The judgment of sentence is reversed and the defendant’s motion in arrest of judgment granted.

*581■Concurring Opinion by

Mr. Justice Bell:

I concur in the result reached by the majority opinion. I also agree that in recent years the doctrine of tort liability in civil cases has been extended and stretched to such an extent that it should no longer be applied in criminal cases. This is especially necessary because the tests for involuntary manslaughter, particularly in cases arising out of automobile accidents, have been different and varying in the Superior Court and in the lower Courts, with no clear standard. This was due to an attempt by these Courts to apply a proper test to the different circumstances of each particular case. For example the following tests have been applied by the Superior Court: Rash or reckless conduct; proximate cause; legal cause; substantial factor; natural and probable consequence such as should have been foreseen; efficient cause; concurring cause; must be more than remote cause — substantial factor; natural result or probable consequence.

It is one of the most important duties of an appellate Court to erect Legal Signposts with language inscribed thereon so clearly, well and wisely that they who read may easily understand.

The classic definition which has come down to us through Blackstone is set forth in Commonwealth v. Comber, 374 Pa. 570, 581, 97 A. 2d 343: “In Com. v. Aurick, 342 Pa. 282, 288, 19 A. 2d 920, the Court thus defined involuntary manslaughter: ‘In Com. v. Mayberry, 290 Pa. 195, 138 A. 686, this Court. . . said: “Involuntary manslaughter consists in ‘the killing of another without malice and unintentionally, but [1] in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or [2] in negligently doing some act lawful in itself, or [3] by the negligent omission to perform a legal duty’: 29 C. J., page 1148.” ’ Accord: Com. v. McLaughlin, 293 Pa. 218, 223, 142 A. 213; Com. v. Micuso, *582273 Pa. 474, 117 A. 211; Com. v. Gable, 7 S. & R. 423; Wharton on Homicide (3rd ed.) sec. 211; 13 R.C.L., 784.»

I believe that the test of negligence as extended and defined in recent opinions of this Court in trespass cases should no longer be applicable to involuntary manslaughter, and that a new definition of involuntary manslaughter which will retain all the basic requirements of the crime and at the same time meet the changes which have occurred, is imperative.

What is involuntary manslaughter? Involuntary manslaughter is a misdemeanor and is very different from murder and from voluntary manslaughter. The prime difference between murder, voluntary manslaughter, and involuntary manslaughter may be thus summarized: Murder is an unlawful killing of another person with malice* aforethought, expressed or implied : Commonwealth v. Nelson, 396 Pa. 359, 152 A. 2d 913; Commonwealth v. Buzard, 365 Pa. 511, 76 A. 2d 394; Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464.

Voluntary manslaughter is the intentional killing of another person which is committed under the influence of passion:* Commonwealth v. Nelson, 396 Pa., supra; Commonwealth v. Donough, 377 Pa. 46, 103 A. 2d 694; Commonwealth v. Palermo, 368 Pa. 28, 81 A. 2d 540.

Involuntary manslaughter is an unintentional and nonfelonious** killing of another person without malice or passion,* which results from conduct by defendant which is so unlawful as to be outrageous, provided such conduct is a direct cause of the killing.

*583The unlawful racing by this defendant was not only unlawful, it was outrageous,* but it was not a direct cause, i.e., one of the direct causes, of the killing.

Dissenting Opinion by

Me. Justice Eagen:

The opinion of the learned Chief Justice admits, under the uncontradicted facts, that the defendant, at the time of the fatal accident involved, was engaged in an unlawful and reckless course of conduct. Racing an automobile at 90 miles per hour, trying to prevent another automobile going in the same direction from passing him, in a no-passing zone on a two-lane public highway, is certainly all of that. Admittedly also, there can be more than one direct cause of an unlawful death. To me, this is self-evident. But, says the majority opinion, the defendant’s recklessness was not a direct cause of the death. With this, I cannot agree.

If the defendant did not engage in the unlawful race and so operate his automobile in such a reckless manner, this accident would never have occurred. He helped create the dangerous event. He was a vital part of it. The victim’s acts were a natural reaction to the stimulus of the situation. The race, the attempt to pass the other car and forge ahead, the reckless speed, all of these factors the defendant himself helped create. He was part and parcel of them. That the victim’s response was normal under the circumstances, that his reaction should have been expected and was clearly foreseeable, is to me beyond argument. That the defendant’s recklessness was a substantial factor is obvious. All of this, in my opinion, makes his unlawful conduct a direct cause of the resulting collision.

The cases cited in support of the majority opinion are not in point. Eor instance, in Johnson v. Angretti, *584364 Pa. 602, 73 A. 2d 666 (1950), this Court, in affirming the trial court, found that the bus driver was not guilty of any negligence or violation of The Vehicle Code 1 in bringing the bus to a stop. The Court, as dicta, then went on to say, at p. 606, “Moreover it is clear that such alleged violation bore no causal relation whatever to the happening of the accident which was due entirely to the intervening and superseding negligence of Angretti in allowing his truck to pass over into the pathway of the westbound tractor-trailer instead of bringing his vehicle to a stop as Osterling [the driver of the truck directly behind the bus and in front of Angretti] had done and as he admitted he could readily have done without colliding with the truck ahead of him. The situation created by the stopping of the bus was merely a circumstance of the accident and not its proximate cause: (citing cases).” It is readily apparent that the instant case and the Angretti case are distinguishable in all the important factors. In the present case there was, (1) recklessness and a violation of The Vehicle Code; (2) a joint venture or common enterprise of racing; (3) no proof that Hall could have guided his car back into the -right-hand lane behind Root after he became aware of the danger of the oncoming truck.

Nor does the case of Kline v. Moyer and Albert, 325 Pa. 357, 191 Atl. 43 (1937), lend support. Quite to the contrary, both the facts and the law oppose it. The majority omits the pertinent part of the rule cited, at p. 364, the whole of which is as follows: “Where a second actor has become aware of the existence of a potential danger created by the negligence of an original tortfeasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by *585Mm was merely a circumstance of the accident and not its proximate cause. Where, however, the second actor does not become apprised of such danger until his own negligence, added to that of the existing perilous condition, has made the accident inevitable, the negligent acts of the two tort-feasors are contributing causes and proximate factors in the happening of the accident and impose liability upon both of the guilty parties.” The KUne case involved a truck, operated by Albert, which he abandoned on a highway without any lights to warn approaching motorists of the danger. Moyer drove down the highway and upon seeing the truck, failed to reduce Ms speed and went into the lane of oncoming traffic and crashed into Kline. This 'Court said, at p. 363, “It is clear that when an unlighted parked truck is seen by the operator of an approaching vehicle, the fact of its being unlighted becomes thereafter2 of legal inconsequence, because the purpose of a light as warning has been otherwise accomplished. If already at that time, by the negligence of its driver, the moving vehicle is in such a position and under such impetus that an accident cannot be avoided, the negligence of the truck owner is as much a proximate cause of the accident as is the negligence of the driver of the car; the negligence of each has contributed to the result. But if, after seeing the unlighted truck, although he would still have been able to guide his car without accident, the driver proceeds in such negligent manner that an accident results, the original negligence of the truck owner has become a noncausal factor divested of legal significance; as to it the chain of causation is broken, and responsibility remains solely with the operator of the moving car.” Because the evidence was not undisputed that Moyer became aware of the presence of the abandoned truck on the highway in time to *586stop, we stated that the question of causal connection was for the jury and not for the court as a matter of law. In the present case, there wasn’t any evidence that Hall saw the oncoming truck when he pulled out to pass Root. This would have been suicide, against which there is a presumption. II P.L.E. §21. The act of passing was not an “extraordinary negligent” act, but rather a “normal response” to the act of “racing.”3 Furthermore, as Hall pulled out to pass, Root “dropped off” his speed to 90 miles an hour. Such a move probably prevented Hall from getting back into the right-hand lane since he was alongside of Root at the time and to brake the car at that speed would have been fatal to both himself and Root. Moreover, the dangerous condition of which the deceased had to become aware of before the defendant was relieved of his direct causal connection with the ensuing accident, was not the fact that the defendant was driving at an excessive rate of speed along the highway. He knew that when the race began many miles and minutes earlier. The dangerous condition necessary was an awareness of the oncoming truclc and the fact that at the rate of speed Root was traveling he couldn’t safely pass him. This important fact was not shown and, therefore, was a question for the fact-finders and not a question that could be decided as a matter of law.

The majority opinion states, “Legal theory which makes guilt or innocence of criminal homicide depend upon such accidental and fortuitous circumstances as are now embraced by modern tort law’s encompassing concept is . . . too harsh to be just.” If the resulting death had been dependent upon “accidental and fortuitous circumstances” or, as the majority also say, “in circumstances not generally considered to present the likelihood of a resultant death,” we would agree that *587the defendant is not criminally responsible. However, acts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies their performance. Every day of the year, we read that some teen-agers, or young adults, somewhere in this country, have been killed or have killed others, while racing their automobiles. Hair-raising, death-defying, lawbreaking rides, which encompass “racing” are the rule rather than the exception, and endanger not only the participants, but also every motorist and passenger on the road. To call such resulting accidents “accidental and fortuitous,” or unlikely to result in death, is to ignore the cold and harsh reality of everyday occurrences. Root’s actions were as direct a cause of Hall’s death as those in the “shield” cases. Root’s shield was his high speed and any approaching traffic in his quest to prevent Hall from passing, which he knew Hall would undertake to do, the first time he thought he had the least opportunity.

1 Wharton, Criminal Law and Procedure, §68 (1957), speaking of causal connections, says: “A person is only criminally liable for what he has caused, that is, there must be a causal relationship between his act and the harm sustained for which he is prosecuted. It is not essential to the existence of a causal relationship that the ultimate harm which has resulted was foreseen or intended by the actor. It is sufficient that the ultimate harm is one which a reasonable man would foresee as being reasonably related to the acts of the defendant.” Section 295, in speaking about manslaughter, says: “When homicide is predicated upon the negligence of the defendant, it must be shown that his negligence was the proximate cause or a contributing cause of the victim’s death. It must appear that the death was not the result of misadventure, but the natural and probable result of a reckless or culpably negligent act. To render a person criminally liable for neg*588ligent homicide, the duty omitted or improperly performed must have been his personal duty, and the negligent act from which death resulted must have been his personal act, and not the act of another. But he is not excused because the negligence of someone else contributed to the result, when his act was the primary or proximate cause and the negligence of the other did not intervene between his act and the result.”

Professor Joseph Beale, late renowned member of the Harvard Law School faculty, in an article entitled, The Proximate Consequences of an Act, 33 Harv. L. Rev. 633, 646, said, “Though there is an active force intervening after defendant’s act, the result will nevertheless be proximate if the defendant’s act actively caused the intervening force. In such a' ease the defendant’s force is really continuing in active operation by means of the force it stimulated into activity.” Professor Beale, at 658, sums up the requirements of proximity of result in this manner: “1. The defendant must have acted (or failed to act in violation of a duty). 2. The force thus created must (a) have remained active itself or created another force which remained active until it directly caused the result; or (b) have created a new active risk of being acted upon by the active force that caused the result.” 2 Bishop, New Criminal Law §424 (19T3), says: “He whose act causes in any way, directly or indirectly, the death of another, hills him, within the meaning of felonious homicide. It is a rule of both reason and the law that whenever one’s will contributes to impel a physical force, whether another’s, his own, or a combined force, proceeding from whatever different sources, he is responsible for the result, the same as though his hand, unaided, had produced it.”

But, says the majority opinion, these are principles of tort law and should not in these days be applied to the criminal law. But such has been the case since the *589time of Blackstone. These same principles have always been germane to both crimes and tort. See, Beale, Recovery for Consequences of an Act, 9 Harv, L. Rev. 80; Green, Rationale of Proximate Cause, 132-133 (1927); Frederick C. Moesel, Jr., A Survey of Felony Murder, 28 Temp. L. Q. 453, 459-466. They have .been repeatedly so applied throughout the years and were employed in a criminal case in Pennsylvania as long as one hundred and seventeen years ago. See, Commonwealth v. Hare, 2 Clark 467 (1844). In that case, two separate bands of men were fighting each other with firearms in a public street and, as a result, an innocent citizen was shot and killed. The person firing the fatal shot could not be ascertained. Hare, one of the rioters, was convicted of homicide and the judgment was affirmed. Can anyone question the logic or correctness of this decision? Under the rationale of the majority opinion, what would be the result in the Hare case? Certainly, under its reasoning, if the truck driver met death under the circumstances the case at hand presents, the defendant would not be legally responsible. Again with this conclusion, I cannot agree.

While the victim’s foolhardiness in this case contributed to his own death, he was not the only one responsible and it is not he alone with whom we are concerned. It is the people of the Commonwealth who are harmed by the kind of conduct the defendant pursued. Their interests must be kept in mind.

I, therefore, dissent and would accordingly affirm the judgment of conviction.

ALLBEE, Justice.

This case stems from a drag race between defendant Michael Dwayne McFadden and another driver, Matthew Sulgrove, which occurred on a Des Moines city street in April 1980. During the course of the two vehicles’ southbound progression, Sulgrove lost control of his automobile and swerved into a lane of oncoming traffic, where he struck a lawfully operated northbound vehi-*610ele. This third vehicle contained a six-year-old passenger, Faith Ellis, who was killed in the collision along with Sulgrove. Defendant’s automobile did not physically contact either of the two colliding vehicles. Further details concerning the race and the accident will be related as necessary for treatment of the issues raised by defendant.

Defendant was charged with two counts of involuntary manslaughter, a violation of section 707.5(1), The Code 1979. Having waived a jury, defendant was tried to the court and convicted and sentenced on both counts. In this appeal, he challenges the validity of his convictions and the sentences imposed.

I. Theory of liability.

Section 707.5(1) defines involuntary manslaughter as follows:

A person commits a class “D” felony when the person unintentionally causes the death of another person by the commission of a public offense other than a forcible felony or escape.

Although not expressly stated in the statute, we have held that the underlying public offense must be committed recklessly in order to convict a person under section 707.-5(1). State v. Conner, 292 N.W.2d 682, 686, 689 (Iowa 1980).

Proof at trial here was primarily directed toward the public offenses of reckless driving, § 321.277, The Code 1979, and drag racing, § 321.278, The Code 1979. On appeal, defendant does not argue that the evidence was insufficient for trial court to find that both he and Sulgrove recklessly committed those public offenses prior to the accident. Rather, defendant’s main contention is that proof of the causation element of section 707.5(1) was lacking. See Divisions II and III, infra.

Trial court found that defendant was guilty of involuntary manslaughter under each of three separate theories: (1) that defendant aided and abetted Sulgrove in Sulgrove’s commission of involuntary manslaughter, see § 703.1, The Code 1979 (defining aiding and abetting); (2) that defendant was vicariously responsible for Sul-grove’s commission of involuntary manslaughter by reason of their joint participation in the public offense of drag racing, see § 703.2, The Code 1979 (defining joint criminal conduct); and (3) that defendant himself committed the crime of involuntary manslaughter by recklessly engaging in a drag race so as to proximately cause the Sulgrove-Ellis collision.

We note that aiding and abetting and joint criminal conduct are theories of vicarious liability, based on Sulgrove’s commission of involuntary manslaughter. Although a vicarious liability theory may be sufficient to convict defendant for the death of Faith Ellis, the same is not true with regard to the death of Sulgrove. This is because the involuntary manslaughter statute requires proof that the perpetrator caused the death of “another person.” See § 707.5(1). Obviously, Sulgrove could not have committed involuntary manslaughter with respect to his own death. Therefore, a theory under which defendant is only vicariously liable for Sulgrove’s crime would be inadequate to convict defendant for Sul-grove’s death.

We turn, then, to consideration of the third theory of liability, i.e., that defendant’s reckless commission of the public offense of drag racing was a proximate cause of the Sulgrove and Ellis deaths.1

II. Causation: legal principles.

As stated earlier, most of the issues raised by defendant on this appeal concern the causation element of section 707.5(1). In addition to challenging the sufficiency of the evidence of causation, defendant raises certain issues concerning governing legal principles. We will address those legal questions in this division.

Preliminarily, we note that the fact that defendant’s automobile did not physi*611cally contact either of the other two vehicles does not, standing alone, preclude his conviction. This rule was established in Iowa in another drag-racing case, State v. Youngblut, 257 Iowa 343, 132 N.W.2d 486 (1965), where a defendant was held to have been properly charged with involuntary manslaughter under similar facts. Having taken initial note of Youngblut, we proceed to address defendant’s legal arguments concerning causation.

A. Legal effect of Sulgrove’s voluntary participation.

Defendant asserts that because Sulgrove was a competitor in the drag race, he assumed the risk of his own death, and therefore defendant could not be convicted or sentenced for that death. This question was not raised in Youngblut because the only victim there was an innocent third party who had been traveling in a nonrac-ing vehicle.

Defendant’s position finds some support in State v. Petersen, 270 Or. 166, 167-68, 526 P.2d 1008, 1009 (1974), a drag-racing case in which the court held that Oregon’s involuntary manslaughter statute “should not be interpreted to extend to those cases in which the victim is a knowing and voluntary participant in the course of reckless conduct.” Drag-racing cases from other jurisdictions, however, have held defendants liable for manslaughter in the death of a co-participant. State v. Melcber, 15 Ariz.App. 157, 159, 161-62, 487 P.2d 3, 5, 7-8 (1971); Campbell v. State, 285 So.2d 891, 892, 895 (Miss.1973); Commonwealth v. Peak, 12 Pa.D. & C.2d 379, 381-82 (1957). Although Peak appears to have been effectively overruled by Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961), a ease we will discuss further below, we find ourselves in agreement with Peak rather than with Root. Therefore, we quote with approval the following discussion from Peak which is pertinent to the issue at hand:

Defendants by participating in the unlawful racing initiated a series of events resulting in the death of Young. Under these circumstances, decedent’s own unlawful conduct does not absolve defendants from their guilt. The acts of defendants were contributing and substantial factors in bringing about the death of Young. The acts and omissions of two or more persons may work concurrently as the efficient cause of an injury and in such case each of the participating acts or omissions is regarded in law as a proximate cause.

12 Pa.D. & C.2d at 382. See also State v. Shimon, 182 N.W.2d 113, 115-16 (Iowa 1970).

We hold that the fact of Sulgrove’s voluntary and reckless participation in the drag race does not of itself bar defendant from being convicted of involuntary manslaughter for Sulgrove’s death.

B. Standard of causation.

Next, defendant contends trial court erred in applying the civil standard of proximate cause in a criminal prosecution, rather than adopting the more stringent standard of “direct causal connection” used by the Pennsylvania court in Commonwealth v. Root, 403 Pa. 571, 580, 170 A.2d 310, 314 (1961). In Root, the court held that “the tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide and more direct causal connection is required for conviction.” Id. The court cited the facts of another Pennsylvania case as an example of such direct causation:

In [Commonwealth v. Levin, 184 Pa.Super. 436, 135 A.2d 764 (1957)] two cars were racing on the streets of Philadelphia at speeds estimated at from 85 to 95 miles per hour. The defendant’s car, in the left hand lane, was racing alongside of the car in which the deceased was a passenger when the defendant turned his automobile sharply to the right in front of the other car thereby causing the driver of the latter car to lose control and smash into a tree, the passenger being thrown to the road and killed as a result of the impact. . .. Levin’s act of cutting his automobile sharply in front of the car in which the deceased was riding directly forced that car off of the road and into *612the tree. The defendant’s reckless and unlawful maneuver was the direct cause of the crucial fatality.

Id. at 576, 170 A.2d at 312.

We had occasion to consider a similar standard-of-causation issue in State v. Marti, 290 N.W.2d 570, 584-85 (Iowa 1980), which upheld the involuntary manslaughter conviction of a man who provided an obviously intoxicated, suicidal woman with the means to shoot herself by loading a gun for her and placing it within her reach. As here, the defendant in Marti argued that the trial court “inappropriately adopted the standards of proximate cause applied in civil cases.” Id. at 584. Unlike the Pennsylvania court in Root, however, we said in Marti that we were “unwilling to hold as a blanket rule of law that instructions used in civil trials regarding proximate cause are inappropriate for criminal trials.” Id. We explained:

One reason for this is the similar functions that the requirement of proximate cause plays in both sorts of trials. The element of proximate cause in criminal prosecutions serves as a requirement that there be a sufficient causal relationship between the defendant’s conduct and a proscribed harm to hold him criminally responsible. [Citations omitted.] Similarly, in the law of torts it is the element that requires there to be a sufficient causal relationship between the defendant’s conduct and the plaintiff’s damage to hold the defendant civilly liable. [Citation omitted.]

Id.

We did note in Marti, however, that legal causation (as opposed to factual causation) is “essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.” Id. at 585 (quoting W. Prosser, Handbook of the Law of Torts § 42, at 244 (4th ed. (1971)). Further, we recognized “that different policy considerations may come into play in criminal prosecutions than in civil trials,” and that an “argument could be made that these differences should be reflected in the proximate cause instructions used in the different kinds of trials.” Id. Nevertheless, we had no occasion to consider whether such differences existed in that case because the defendant there

failed to indicate any differences in policy considerations relevant to his case, much less how such differences might have prejudicially affected any particular instruction given here. For a party to preserve for appeal his objections to a trial court’s instructions on this amorphous and multifaceted matter of legal causation, he or she must specify the deficiency in narrower terms than a mere assertion that they copy civil instructions.

Id. We find no error preservation problem in this bench-tried case, and thus proceed to address the standard-of-causation question on its merits.

First, although defendant does not cite or appear to rely on State v. Rullestad, 259 Iowa 209, 212-13, 143 N.W.2d 278, 280 (1966), we are aware of Rullestad’s holding that to sustain an involuntary manslaughter conviction based on the public offense of drunk driving, it is necessary to show a “direct causal connection” between the drunk driving and the death. Rullestad cites Root among a list of cases “having some bearing” on the point. While Rulles-tad does use the phrase “direct causal connection,” the case contains no discussion of the distinction between the ordinary concept of proximate cause and the more stringent standard adopted in Root. Elsewhere in Rullestad, the term “proximate cause” is used repeatedly in referring to the appropriate legal standard. 259 Iowa at 212-14, 143 N.W.2d at 280-81. Thus, we believe Rullestad’s use of the phrase “direct causal connection” was intended to convey nothing more than the ordinary notion of proximate cause.

This view is reinforced by the fact that Youngblut, 257 Iowa 343, 132 N.W.2d 486, implicitly rejects the causation standard adopted in Root. The facts outlined in the minutes of testimony attached to the indictment in Youngblut did not include any specific act by defendant which directly caused *613his fellow racer to collide with the hapless third vehicle. Thus, those facts would not have met the direct causation test of Root. Yet this court held that those facts were legally sufficient to satisfy the elements of involuntary manslaughter.

Moreover, we observe that although Root had been decided four years earlier and was the subject of an American Law Reports annotation, see 82 A.L.R.2d 452 (1962), Youngblut did not cite the Root case or follow its lead. Rather, Youngblut relied primarily on the drag-racing cases of People v. Kemp, 150 Cal.App.2d 654, 659, 310 P.2d 680, 683 (1957), and State v. Fennewald, 339 S.W.2d 769, 773 (Mo.1960). The facts of neither of those cases would have met the direct causation standard of Root. In addition, we note that in Kemp, at least, the theory of liability was based on the concept of proximate causation. See 150 Cal.App.2d at 658-59, 310 P.2d at 682-83.

Furthermore, of all the involuntary manslaughter cases we have studied which involve drag racing, we have found only one that applies a standard of causation as stringent as that in Root: Thacker v. State, 103 Ga.App. 36, 37-39, 117 S.E.2d 913, 914-15 (1961). Other cases, when not based on a theory of vicarious liability, appear to apply a proximate cause standard similar to that in tort cases. E.g., State v. Melcher, 15 Ariz.App. 157, 161-62, 487 P.2d 3, 7-8 (1971); Campbell v. State, 285 So.2d 891, 893-95 (Miss.1973).

Finally, defendant has suggested no specific policy differences, nor can we think of any, that would justify a different standard of proximate causation under our involuntary manslaughter statute than under our tort law. The Root court opined that “[l]egal theory which makes guilt or innocence of criminal homicide depend upon such accidental and fortuitous circumstances as are now embraced by modern tort law’s encompassing concept of proximate cause is too harsh to be just.” 403 Pa. at 576, 170 A.2d at 312. We do not agree. Proximate cause is based on the concept of foreseeability. We believe the foreseeability requirement, coupled with the requirement of recklessness, see State v. Conner, 292 N.W.2d 682, 686 (Iowa 1980), will prevent the possibility of harsh or unjust results in involuntary manslaughter cases. We disagree with the Root court’s apparent opinion that drag racing on a public street is “not generally considered to present the likelihood of a resultant death.” 403 Pa. at 575, 170 A.2d at 311.

Accordingly, we hold that trial court did not err in applying ordinary proximate cause principles to determine whether the causation element of section 707.5(1) had been met, and in declining to adopt the more stringent “direct causal connection” standard of Root.

C. Withdrawal as a defense.

Defendant argues that trial court erred in failing to find that defendant had withdrawn from the drag race prior to the collision between the Sulgrove and Ellis vehicles. The legal underpinning for his asserted withdrawal defense was State v. Fair, 209 S.C. 439, 40 S.E.2d 634 (1946). In that case, it was recognized that one drag racer could be held responsible for a death resulting from a collision between his competitor and a third party, under the vicarious liability theory of joint criminal enterprise; however, the defendant’s conviction was reversed because of the trial court’s failure to instruct the jury on the effect of withdrawal. Id. at 443-45, 40 S.E.2d at 636-37.

The withdrawal defense is usually associated with the theory of joint criminal enterprise, as it was in Fair. As noted earlier, however, that theory of liability is not sufficient in this case to justify defendant’s conviction for the death of Sulgrove; thus, the theory we have' been examining is based on the idea that defendant’s own reckless commission of a public offense “cause[d]” the Sulgrove and Ellis deaths within the meaning of section 707.5(1). Under this this theory, the notion of withdrawal is pertinent only insofar as it relates to the element of proximate cause. For example, if one drag racer were to abandon the race by slowing down to normal speeds or *614stopping, and his competitor became aware of the defendant’s withdrawal but still chose to continue driving fast and recklessly, that fact might have a bearing on whether the defendant’s drag racing was a proximate cause of a subsequent collision between his competitor and a third party; it might also bear on whether the competitor’s decision to continue his reckless driving was an intervening, superseding cause. See Saisa v. Lilja, 76 F.2d 380, 381 (1st Cir. 1935); Jones v. Northwestern Auto Supply, 93 Mont. 224, 229-31, 18 P.2d 305, 306-07 (1932); Boykin v. Bennett, 253 N.C. 725, 732, 118 S.E.2d 12, 17 (1961); Lemons v. Kelly, 239 Or. 354, 356-60, 397 P.2d 784, 785-87 (1964). Thus, the point we wish to make here is that under the theory of direct liability we are considering, a defendant’s asserted withdrawal should not be viewed as an absolute defense, but only as a factor affecting the determination of proximate cause. We will so consider it in the following division when we review the sufficiency of the evidence of proximate causation.

III. Causation: sufficiency of the evidence.

A. Standard of review.

Before considering the sufficiency of the evidence of causation in this case, we must address defendant’s contention that this court should adopt a “strict scrutiny” standard in reviewing the sufficiency of the evidence in a criminal bench trial. A similar proposal was made by a defendant and rejected by this court in State v. Hall, 287 N.W.2d 564, 564-65 (Iowa 1980). In that case, this court held to the rule that in court-tried criminal cases, “findings of fact, if supported by substantial evidence, have the same effect as a special jury verdict.” Id. at 565. Defendant has shown no good reason why we should depart from this “substantial evidence” standard of review in bench trial cases.

Accordingly, we will apply the usual rules for reviewing the sufficiency of the evidence, namely, that the evidence is viewed in the light most favorable to the State; that all of the evidence must be considered, and not just that which supports the verdict; that the verdict must be upheld if supported by substantial evidence; and that substantial evidence means such evidence as could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Robinson, 288 N.W.2d 337, 338-40 (Iowa 1980).

B. Sufficiency of the causation evidence in this case.

With the foregoing principles in mind, we review the evidence in this case. Testifying for the State were three witnesses who were driving in the vicinity on the morning of the accident, and two police department accident reconstruction experts who had been called to the scene. Defendant’s only witness was a private investigator who, as a former police officer, also had accident reconstruction training and experience. In addition, the trial judge viewed the scene of the drag race and accident under the stipulation of both parties that anything he observed could be evidence in either the State’s or defendant’s case.

On Saturday morning, April 5, 1980, a green car driven by Sulgrove was observed moving at a high rate of speed off the exit ramp of the MacVicar Freeway onto Southeast Fourteenth Street, a multi-lane city street. In making his exit, Sulgrove hit a curb, “fishtailed,” and then entered the southbound traffic on Southeast Fourteenth. Traffic was fairly heavy at this point, and Sulgrove moved from one southbound lane to another trying unsuccessfully to pass cars and get ahead. Farther down the street, which had narrowed to two northbound and two southbound lanes, Sul-grove’s car was seen traveling at a “fairly high” rate of speed; it came up behind a red car driven by defendant, an acquaintance of Sulgrove’s, just past the Gratis Street intersection. Defendant, traveling at an estimated speed of 40-47 m.p.h., had been in the left southbound lane until just before Sulgrove came up behind him; at that time, defendant pulled his car into the right southbound lane alongside a car in the left lane, thereby preventing Sulgrove from *615passing. Defendant’s maneuver forced Sul-grove to brake suddenly, and Sulgrove’s car again “fishtailed.” After getting past the vehicle which blocked the left lane, the red and green vehicles were observed engaging in what a witness described as a “cat-and-mouse” game: Defendant’s red car, traveling generally in the right lane just ahead of Sulgrove’s green car, repeatedly blocked Sulgrove’s attempts to pass by moving partially into the left lane and then back to the right again when Sulgrove would change lanes. Starting at the Pioneer Street intersection, where the speed limit is 40 m.p.h., a witness who had some experience in drag racing under controlled conditions saw the two cars traveling “head to head” at an estimated speed of 70-75 m.p.h., with defendant in the right lane and Sulgrove in the left. The witness testified that when the two cars came upon a gold car in the left lane near the Lacona Street intersection, “neither driver was willing to give up the [competitive] edge in order to negotiate the gold car until at the very last second,” when Sulgrove braked, swerved into the right lane behind defendant, bounced off a curb, and passed the gold car. Sulgrove then got back into the left lane and the two cars continued southward at a high rate of speed. Because the two vehicles were “traveling as a pair” in a competitive manner, the witness concluded they were drag racing.

Beyond the Lacona intersection, Southeast Fourteenth slopes upward and crests twice, the first crest being between Crestón and King streets and the second crest being 1126 feet beyond the first. A witness named Jamison who was traveling behind the red and green vehicles testified that he watched both vehicles continue to speed and participate in “cat-and-mouse” activity up to the top of the second crest, where they dropped out of his sight. Just beyond the second crest, a pickup truck was traveling in the left southbound lane at a normal speed. The pickup driver testified that Sul-grove’s car “came around” her truck at a high rate of speed in the right lane, lost control and skidded across the left lane in front of her. Sulgrove then crossed over the median and struck the northbound Ellis vehicle at a point 263 feet beyond the second crest. The pickup driver did not recall seeing defendant’s red car.2

When the police arrived, they found 84 feet of skid marks left by Sulgrove’s vehicle.3 It was determined from physical evidence that Sulgrove had been going about 80 m.p.h. just before he went into the skid. Defendant was present at the accident site, and his car was parked in the lot of Godfather’s Pizza, which is located on the west side of the street. The southernmost driveway to this lot is 351 feet beyond the second crest. There were no skid marks left by defendant’s car anywhere in the vicinity.

Defendant challenges the sufficiency of the foregoing evidence under both perspectives of causation, factual and legal. See State v. Marti, 290 N.W.2d 570, 584-85 (Iowa 1980). Factual causation is determined under the sine qua non test: “but for the defendant’s conduct, the harm or damage would not have occurred.” Id. at 585. Defendant argues that because Sulgrove was driving fast and recklessly even before defendant entered the picture, the accident would have occurred even without defendant’s participation in the drag race. Viewing the evidence in the light most favorable to the State, however, we find there was substantial evidence from which trial court could conclude that Sulgrove’s speed and recklessness both increased once he entered the heat of competition with defendant,4 *616and that the accident would not have occurred but for their joint racing.

Defendant next asserts that proof of proximate or legal causation was lacking because there was no credible evidence that defendant continued to race beyond the first crest of the hill. Witness Jamison, mentioned earlier, testified unequivocally that he observed the red and green cars go over both crests of the hill. He said: “Well, there is two small hills there as you are going up that hill, and I never lost sight of them over the first hill because it is high enough up that I could see them, and the last hill, whichever one it is where they go over the crest was where I saw them last.” Jamison was the only witness who claimed to have observed defendant’s activity between the first and second crests. Defendant attempted to discredit that testimony by proving that Jamison could not have observed the cars once they passed over the first crest. It was shown that a person sitting in a stationary vehicle at the Lacona intersection can see only the first crest, and that traffic disappears from sight as it goes over that crest. When a person in a moving vehicle comes within 150 feet of the first crest, however, he can see over that crest all the way to the second crest. Thus, adding 150 feet to the distance between the crests, it can be seen that Jamison would have had to be no more than 1276 feet behind the red and green cars in order to watch them go over the second crest. Ja-mison estimated that he was roughly ¼ to ½ mile (1320 to 2640 feet) behind the two cars when they went over the second crest, but he also disclaimed any ability to estimate distance accurately. Indications that the distance was not great included Jami-son’s testimony that he saw dust rise over the hill ahead of him when the collision occurred, and that he arrived at the accident site just as defendant was getting out of his car in the Godfather’s lot.

Even if Jamison did only see the cars go over the first crest, the evidence of proximate causation would not be insufficient. As noted earlier, the distance between the two crests is 1126 feet. Evidence presented at trial concerning the number of feet per second traveled at various speeds indicates to us that it would take less than 10 seconds to go from crest to crest at 80 m.p.h. and less than 13 seconds at 60 m.p.h. There was substantial evidence that defendant and Sulgrove were traveling in the 60-80 m.p.h. range when they topped the first crest. Based on this evidence, trial court could find that it would have been impossible for defendant, in such a short period of time, to effect a timely withdrawal which would have allowed Sulgrove an opportunity to slow down and avoid the accident. As stated in a civil drag-racing case:

[R]acing on a highway is hazardous to all other persons upon the highway and . . . the actor participates at his peril.... One who does participate in setting in motion such hazardous conduct cannot thereafter turn his liability off like a light switch. From the authorities cited we conclude that one who participates in setting such hazardous conduct in motion cannot later be heard to say: “Oh! I withdrew before harm resulted even though no one else was aware of my withdrawal.” It would be a reasonable probability that the excitement and stimulus created by this race of several miles had not dissipated nor, in fact, terminated at all, in the fraction of a minute in time between the act of passing and the accident. The state of mind of the participants was material. We cannot gauge that state of mind to the point of saying that the stimulus or intent had ended. The evidence warrants a finding that it did continue. It would be for the jury to decide if the racing were the cause of the accident.

Lemons v. Kelly, 239 Or. 354, 360, 397 P.2d 784, 787 (1964). Thus, even if defendant had started to slow down between the first and second crests, as his counsel argues he did, trial court could find that any such last-minute effort to withdraw would not break the chain of causation set in motion by the drag race. See also Jones v. Northwestern Auto Supply, 93 Mont. 224, 229-31, 18 P.2d 305, 306-07 (1932).

*617For the same reason, trial court could find that the lack of skid marks from defendant’s car into the Godfather’s parking lot failed to create a reasonable doubt as to defendant’s guilt. A defense expert testified that it would have been impossible for defendant to turn into that lot without leaving skid marks if he, like Sulgrove, was traveling 80 m.p.h. as he came over the second crest. From what we have said in the preceding paragraph, however, it was not necessary for the State to prove that defendant was going 80 m.p.h. when he topped that hill. One of the accident reconstruction experts who testified for the State theorized that defendant and Sulgrove continued to race almost side-by-side until they neared the second crest and saw the pickup truck ahead blocking Sulgrove’s path, at which point defendant slowed down to allow Sulgrove into the right lane. This theory would explain why the pickup driver did not notice defendant’s car, and would also be one explanation for the lack of skid marks from defendant’s ear.5

We have examined defendant’s remaining complaints concerning asserted flaws in the State’s case and in trial court’s findings. We conclude that the few flaws or errors which do exist are nonprejudicial and that the remainder of defendant’s assertions are without merit.

Viewing the evidence in the light most favorable to the State, we hold that the record contains substantial evidence that defendant’s participation in a drag race with Sulgrove was a concurring proximate cause of the accident in which Sulgrove and Faith Ellis were killed. We therefore affirm defendant’s convictions.

IV. Sentences on each count of involuntary manslaughter.

Trial court’s imposition of a separate sentence of no more than five years confinement and a $500 fine on each of the two counts of involuntary manslaughter charged by the trial information is also challenged by defendant. The sentences were to run concurrently.

Defendant argues that only one sentence is permissible because both deaths arise out of a single act of recklessness. In support of this argument, defendant relies on State v. Wheelock, 216 Iowa 1428, 250 N.W. 617 (1933), where three indictments of involuntary manslaughter were returned against the defendant predicated upon a single accident in which three persons in an automobile struck by defendant’s vehicle died. The defendant was tried on one of the charges and acquitted, and then pleaded former jeopardy when the State sought to try him on another of the charges. In recognizing the validity of the former jeopardy plea under those circumstances, Wheelock adopted the rule that “an act of negligence on the part of a tort-feasor, which results in the involuntary killing of two or more human beings, is ordinarily a single offense and is subject to one prosecution.” Id. at 1448, 250 N.W. at 625 (emphasis in original). The Wheelock court explained its rationale and underscored the narrowness of the holding in this passage:

Except as to cases of involuntary manslaughter, it is not the purpose, or the purport, of this opinion, to establish any new precedent or to extend or restrict what has already been said in our own cases. Our opinion herein shall go no farther than to determine whether an involuntary manslaughter of two or more persons attributable to the single negligence of the defendant, without any intent on his part to cause any injury, is a single or a multiple offense. If the respective courts differ in their conclusions in cases involving other offenses, such difference arises nevertheless on the question of fact as to whether the intent of the perpetrator was single or plural. In the case before us there is no basis for *618the claim of multiple intent either as a question of fact or of law.

Id. (emphasis in original).

The procedural posture in Wheeiock can be distinguished from that presented here: Wheeiock involved the issue of successive trials where a single act produced multiple victims; this case presents multiple charges in a single prosecution arising from a single act. Nevertheless, Wheeiock does lend support for defendant’s argument that only a single sentence may be imposed because both charges, even though contained in a single prosecution, arise out of a single act.

The Wheeiock holding, we believe, must be re-examined in light of developments since it was decided. When announcing the rule that multiple-victim involuntary manslaughter resulting from a single act is but a single offense, the Wheeiock court stated that in so holding it was “[i]n line with all the other courts, which have passed upon the specific question. . . . ” Id. This expression in that opinion followed an extensive survey of authorities from across the country. It is clear, however, that today the overwhelming weight of authority recognizes that there are as many separate and distinct offenses as there are deaths resulting from a single incident of vehicular manslaughter. See, e.g., State v. Miranda, 3 Ariz.App. 550, 557-58, 416 P.2d 444, 451-52 (1966); McHugh v. State, 160 Fla. 823, 824, 36 So.2d 786, 787 (1948), cert. denied, 336 U.S. 918, 69 S.Ct. 640, 93 L.Ed. 1081 (1949); State v. Lowe, 130 So.2d 288 (Fla.Dist.Ct.App.1961); People v. Allen, 368 Ill. 368, 379, 14 N.E.2d 397, 405 (1937), appeal dismissed, 308 U.S. 511, 60 S.Ct. 132, 84 L.Ed. 436 (1939); Fleming v. Commonwealth, 284 Ky. 209, 210-11, 144 S.W.2d 220, 221 (1940); Burton v. State, 226 Miss. 31, 45, 79 So.2d 242, 249-50 (1955); State v. Whitley, 382 S.W.2d 665, 667 (Mo.1964); Jeppesen v. State, 154 Neb. 765, 768-69, 49 N.W.2d 611, 613-14 (1951); State v. Martin, 154 Ohio St. 539, 541-42, 96 N.E.2d 776, 778 (1951); Fay v. State, 62 Okl.Crim.App. 350, 357, 71 P.2d 768, 771 (1937); State v. Irvin, 603 S.W.2d 121 (Tenn.1980); State v. Rabe, 96 Wis.2d 48, 72-76, 291 N.W.2d 809, 821-22 (1980); see also 7A Am.Jur.2d, Automobiles and Highway Traffic § 391 (1980).

For several reasons, we are persuaded that we should adopt the majority view. First, we believe Wheelock’s focus upon the lack of intent to inflict multiple deaths is faulty. The role of intent pertains only to the commission of the act which causes the death of others, not to the number of deaths which result from the act. By the very nature of the offense, involuntary manslaughter deaths are unintentional, the fortuitous result of an act found to be reckless. Next, we recognize that a single reckless act can foreseeably victimize several persons. This case serves as an example. See State v. Rabe, 291 N.W.2d at 822. Finally, the Wheeiock rule, once “[i]n line with all the other courts,” now finds scant acceptance. See State v. Irvin, 603 S.W.2d at 121, 124 n.2.

We now hold that a separate and distinct offense arises from each death caused by a single act of vehicular involuntary manslaughter. Wheeiock and other decisions holding to the contrary are overruled to the extent that they conflict herewith. Insofar as Wheeiock addressed the issue of successive trials following an initial acquittal in the situation where a single criminal act produces multiple victims, the decision has continuing vitality. See Ashe v. Swensen, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (simultaneous robbery of six poker players: defendant tried and acquitted on one charge; trials on second and subsequent charges barred).

V. Failure to give reasons for the sentences.

Defendant also asserts that trial court erred in failing to state on the record its reason for selecting the particular sentences imposed, as required by Iowa R.Crim.P. 22(3)(d). The State concedes lack of compliance with the rule and that the sentences must be vacated. State v. Smith, 309 N.W.2d 454, 457 (Iowa 1981); State v. Luedtke, 279 N.W.2d 7, 8 (Iowa 1979). Consequently, the sentences imposed are vacated and this case is remanded for resentenc-*619ing. This does not affect the convictions, which remain as rendered.

AFFIRMED IN PART; SENTENCES VACATED; REMANDED FOR RESEN-TENCING.

Wilkins, C.J.

Each defendant has been convicted upon an indictment for manslaughter in the death of Stewart E. Briteh and upon an indictment for illegally carrying a firearm, namely a revolver, on his person in violation of Gr. L. c. 269, § 10 (as amended through St. 1957, c. 688, § 23).2 *628The cases, which arose out of a “game” of “Russian roulette,” are here on appeals pursuant to Q-. L. c. 278, §§ 33A-33Q-, as amended, accompanied by a summary of the record, a transcript of the evidence, and assignments of error. The defendants argue assignments of error in the denial of motions for directed verdicts on each indictment, in the charge, and in the failure to give one of their requests for instructions.

Facts which the jury could have found are these. On Sunday, October 22, 1961, the deceased, his brother Ronald, and the defendants spent the day drinldng wine in the deceased’s room in a rooming house in Boston. At some time in the afternoon, with reference to nothing specific so far as the record discloses, Marshall said, “I will settle this,” went out, and in a few minutes returned clicking a gun, from which he removed one bullet. Early in the evening Ronald left, and the conversation turned to “Russian roulette.”

The evidence as to what happened consisted of testimony of police officers, who took statements of the defendants, and testimony of one defendant, Atencio. The evidence did not supply all the facts. For example, the source and ownership of the revolver were not made clear. The jury could have found that it was produced by the deceased and that he suggested the “game,” or they might have found neither to be the fact. There was evidence that Marshall earlier had seen the revolver in the possession of the deceased, and that the latter handed it to Marshall, who put it in the bathroom under the sink. Later when the deceased accused him of stealing it, he brought it back from the bathroom, and gave it to the deceased. Any uncertainty is not of prime importance. The “game” was played. The deceased and Atencio were seated on a bed, and Marshall was seated on a couch. First, Marshall examined the gun, saw that it contained one cartridge, and, after spinning it on his arm, *629pointed it at his head, and pulled the trigger. Nothing happened. He handed the gun to Atencio, who repeated the process, again without results. Atencio passed -the gun to the deceased, who spun it, put it to his head, and pulled the trigger. The cartridge exploded, and he fell over dead.

1. There is no controversy as to definition. Involuntary manslaughter may be predicated upon wanton or reckless conduct. Commonwealth v. Bouvier, 316 Mass. 489, 494, and cases cited. “The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another.” Commonwealth v. Welansky, 316 Mass. 383, 399. Restatement: Torts, § 500.

We are of opinion that the defendants could properly have been found guilty of manslaughter. This is not a civil action against the defendants by the personal representative of Stewart Britch. In such a case his voluntary act, we assume, would be a bar. Here the Commonwealth had an interest that the deceased should not be killed by the wanton or reckless conduct of himself and others. State v. Plaspohl, 239 Ind. 324, 327. Such conduct could be found in the concerted action and cooperation of the defendants in helping to bring about the deceased’s foolish act. The jury did not have to believe testimony that the defendants at the last moment tried to dissuade the deceased from doing that which they had just done themselves.

The defendants argue as if it should have been ruled, as matter of law, that there were three “games” of solitaire and not one “game” of “Russian roulette.” That the defendants participated could be found to be a cause and not a mere condition of Stewart Britch’s death. It is not correct to say that his act could not be found to have been caused by anything which Marshall and Atencio did, nor that he would have died when the gun went off in his hand no matter whether they had done the same. The testimony does not require a ruling that when the deceased took the gun from Atencio it was an independent or intervening act *630not standing in any relation to the defendants’ acts which would render what he did imputable to them. It is an oversimplification to contend that each participated in something that only one could do at a time. There could be found to be a mutual encouragement in a joint enterprise. In the abstract, there may have been no duty on the defendants to prevent the deceased from playing. But there was a duty on their part not to cooperate or join with him in the ‘ ‘ game. ’ ’ Nor, if the facts presented such a case, would we have to agree that if the deceased, and not the defendants, had played first that they could not have been found guilty of manslaughter. The defendants were much more than merely present at a crime. It would not be necessary that the defendants force the deceased to play or suggest that he play.

We are referred in both briefs to cases of manslaughter arising out of automobiles racing upon the public highway. When the victim is a third person, there is no difficulty in holding the drivers, including the one whose car did not strike the victim (Brown v. Thayer, 212 Mass. 392), or in whose car a victim was not a passenger. Nelson v. Nason, 343 Mass. 220, 221.

In two cases the driver of a noncolliding car has been prosecuted for the death of his competitor, and in both cases an appellate court has ruled that he was not guilty of manslaughter. In Commonwealth v. Root, 403 Pa. 571, the competitor drove on the wrong side of the road head-on into an oncoming truck and was killed. The court held (p. 580) that “the tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide and more direct causal connection is required • for conviction .... In the instant ease, the defendant’s reckless conduct was not a sufficiently direct cause of the competing driver’s death to make him criminally liable therefor. ’ ’ In Thacker v. State, 103 Ga. App. 36, the defendant was indicted for the involuntary manslaughter of his competitor in a drag race who was killed when he lost control of his car and left the highway. The court said (p. 39) that the indictment “fails *631to allege any act or acts on the part of the defendant which caused or contributed to the loss of control of the vehicle driven by the deceased, other than the fact that they were engaged in a race at the time.”

Whatever may be thought of those two decisions, there is a very real distinction between drag racing and “Russian roulette.” In the former much is left to the still, or lack of it, of the competitor. In “Russian roulette” it is a matter of luck as to the location of the one bullet, and except for a misfire (of which there was evidence in the case at bar) the outcome is a certainty if the chamber under the hammer happens to be the one containing the bullet.

2. Each defendant excepted to the denial of a request to the effect that if he urged the deceased not to pull the trigger, the jury would be warranted in finding that the defendant did not show a reckless disregard of the deceased’s safety, and would be warranted in finding him not guilty. We do not agree with the defendants’ contention that the request was not given in substance. Very near the close of the charge the judge instructed the jury, “If any one of these defendants abandoned or quit the roulette before it was completed, before the shot was fired, then, of course, he would not be responsible or guilty of the shooting.”

3. We are of opinion that the temporary possession of the revolver shown by the defendants during the game is not a carrying of a firearm on the person within the meaning of GL L. c. 269, § 10, as amended. The idea conveyed by the statute is that of movement, 11 carries on his person or under his control in a vehicle.” The motions for directed verdicts on the indictments for carrying a revolver on the person should have been granted.

4. The judgments on the indictments for manslaughter are affirmed. The judgments on the indictments for carrying a revolver on the person are reversed, and the verdicts on those indictments are set aside.

So ordered.

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 *446to 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.

*447I

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 de*448fendant 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 defen*449dant 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 *450necessary 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 majority9 concluded that the circuit court erred in quashing the information.

hi

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 *451Legislature 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._

*452On 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 bill15 sets forth *453the 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 *454multiple-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 *455its 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).]

*456In 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 violations19 and those that have not20 demonstrates that *457the 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, *458there 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, *459the 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 séek 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._

*4602

CHANGE IN PURPOSE CHALLENGE24

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 Hob-bins 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 *461effect 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 *462Fosterling, 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 *463have 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 *464statute 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_

*465We 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 constitu*466tional 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 life30 and the safeguarding 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 *467Court 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 plaintiffs33 and defendant Kevorkian advance several theories why this Court should find that there *468is 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 *469central 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_

*470The 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._

*471D

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 disagreed42 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 *472life-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 *473to 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 posi*475tion 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 *476rational 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 Harlan48 quoted approv*477ingly 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 *478concession, 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 ex*479pressly 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

*480It 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-*481law 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 *482elected 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 *483the 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 *484as 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:

*486We 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 thht Roberts controlled the issue presented in the instant case.

c

We agree with the Court of Appeals that the *487holding 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 ap*488plies. 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

*489Recent 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 statu*490tory 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 per*491forms, 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.

*492The 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 *493the 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 *494on 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 *495Where 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]

*496Our 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 *497judgment 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 Constitution1 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 Harlan2 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 *498must 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 *499overinclusive. 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 exami*500nation 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 *501of 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 *503participation 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).

*504The 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 pur*505posely 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 *506similar 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_

*507Although 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._

*508Ill

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.

*509CONCLUSION

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 *510can 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 *511and 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 *512does 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 Constitution5 insofar as it bars assisting suicide by a physically healthy but mentally disturbed or incompetent person.6

*513I 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 oifense 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 oifense, 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 *515intentionally providing the means by which a person commits suicide.9

in

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 colleague10 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 treatment12 would assist a circuit judge in deciding whether it is appropriate under all the *516circumstances 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 CJlause encompasses a fundamental right to commit suicide and, if so, whether it includes a right to assistance.”13_

*517By 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 *518protected 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_

*519V

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 *520of 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 *521involved, 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._

*522VII

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._

*523The 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) de*524sires 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 *525as a qommon-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 consti*526tuency 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 *527property, 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 *528S 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 *529Stevens stated in Meachum v Fano, 427 US 215, 230; 96 S Ct 2532; 49 L Ed 2d 451 (1976):

[NJeither 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 *530backed by a significant constituency. " 'The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy. . . . [Fundamental 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” *531analysis 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._

*532Moreover, 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 *533in 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 *534Harlan’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 álso 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 *535judgment 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 *536that 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 *537decision 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. *538Indeed, 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 Massa*539chusetts 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), ithe court denied the right of patients to refuse lifesaving treatment for themselves in *540circumstances 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 LR1 (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 *541individual’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 *542through 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 *543Appeals 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.