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Michigan Supreme Court

Lansing, Michigan 48909 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED JUNE 20, 2003
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellant,
 

v No. 120630
 

RICHARD J. MENDOZA,
 

Defendant-Appellee.
 

BEFORE THE ENTIRE BENCH
 

YOUNG, J.
 

Defendant was charged with first-degree murder, MCL
 

750.316, but convicted by a jury of second-degree murder, MCL
 

750.317. The Court of Appeals reversed defendant’s conviction
 

and remanded the case for a new trial, reasoning that the
 

trial court erred when it declined to give an involuntarymanslaughter instruction. This Court granted leave to appeal
 

to consider whether manslaughter is an “inferior” offense of
 

murder under MCL 768.32(1), and if so, whether a rational view
 
of the evidence supported an instruction in this case. 


We conclude that manslaughter is an inferior offense of
 

murder. However, an involuntary-manslaughter instruction was
 

not appropriate in this case because a rational view of the
 

evidence did not support it. Accordingly, we reverse the
 

judgment of the Court of Appeals and reinstate defendant’s
 

conviction. To the extent that People v Van Wyck, 402 Mich
 

266; 262 NW2d 638 (1978), and its progeny conflict with this
 

opinion, they are overruled.
 

I. FACTS AND PROCEDURAL HISTORY
 

Defendant and codefendant Ivan Tims visited the home of
 

victim William Stockdale and Stockdale’s nephew, Thurman
 

Chillers, with the intent to purchase marijuana. Tims
 

initially waited outside in the car while defendant discussed
 

the price of the drugs with Stockdale and Chillers in the
 

house. Agreeing on a price, defendant indicated to Stockdale
 

that he had to return to the car to get additional money.
 

When defendant returned to the house, he was accompanied by
 

Tims. Both men brandished handguns. 


Chillers testified that, upon entering the home,
 

defendant instructed Tims to “shoot him.” In response, Tims
 

alternately pointed his gun at Chillers and Stockdale.
 

Stockdale, in turn, rushed at defendant, grabbed defendant’s
 

gun and swung it downwards. Chillers ran out of the house.
 

2
 
 

As he ran, he saw Stockdale “tussling” with defendant.
 

Chillers further testified that he heard one shot while he was
 

in the house and four or five more shots when he was outside.
 

In the end, Stockdale was shot twice, once in the leg and once
 

in the chest. The chest wound proved fatal. 


Defendant was charged with first-degree murder, MCL
 

750.316, and possession of a firearm during the commission of
 

a felony, MCL 750.227b. His defense was that Tims shot
 

Stockdale. Defendant elicited testimony from various
 

witnesses establishing that defendant was not in the house
 

when the victim was fatally wounded and that the fatal bullet
 

came from a gun traceable to Tims. 


At the close of proofs, defendant requested instructions
 

for voluntary and involuntary manslaughter, MCL 750.321, and
 

careless, reckless, or negligent discharge of a firearm, MCL
 

752.861. The trial court denied the requests and instructed
 

the jury on first-degree murder, MCL 750.316, and seconddegree murder, MCL 750.317. Defendant was convicted of
 

second-degree murder and felony-firearm.
 

The Court of Appeals reversed defendant’s conviction and
 

remanded the case for a new trial. The panel treated the
 

manslaughter-instruction requests as requests for instructions
 

on a “cognate” lesser included offense and concluded that the
 

trial court erred in refusing to give the involuntary3
 
 

 

 

manslaughter instruction because there was evidence from which
 

the jury could conclude that the victim’s death was unintended
 

and occurred while defendant was engaged in an unlawful act
 

not amounting to a felony. Slip op at 2. 


The prosecutor applied for leave to appeal.1 We granted
 

leave to consider whether manslaughter is an inferior offense
 

of murder within the meaning of MCL 768.32 and, if so, whether
 

an involuntary-manslaughter instruction was supported by a
 

rational view of the evidence.
 

II. STANDARD OF REVIEW
 

Whether manslaughter is an inferior offense of murder
 

within the meaning of MCL 768.32 is a question of law that the
 

Court reviews de novo. Weakland v Toledo Engineering Co, 467
 

Mich 344, 347; 656 NW2d 175 (2003).
 

III. ANALYSIS
 

A. MCL 768.32
 

MCL 768.32 governs inferior-offense instructions.
 

Subsection 1 provides in pertinent part:
 

. . .[U]pon an indictment for an offense,


consisting of different degrees, as prescribed in


this chapter, the jury, or the judge in a trial


without a jury, may find the accused not guilty of


the offense in the degree charged in the indictment


and may find the accused person guilty of a degree
 

1Defendant did not cross-appeal to challenge the judgment


of the Court of Appeals affirming the trial court’s decision


not to give instructions on voluntary manslaughter or careless


use of a firearm. 


4
 
of that offense inferior to that charged in the


indictment, or of an attempt to commit that
 

offense. 


We recently examined this statute in People v Cornell,
 

466 Mich 335; 646 NW2d 127 (2002).2 In Cornell, the Court
 

considered whether necessarily included lesser offenses3

 and
 

cognate lesser included offenses4 were “inferior” offenses
 

under MCL 768.32. In consideration of this issue, we examined
 

the meaning of the word “inferior”:
 

“We believe that the word ‘inferior’ in [MCL


768.32] does not refer to inferiority in the
 

penalty associated with the offense, but, rather,


to the absence of an element that distinguishes the


charged offense from the lesser offense. The
 

controlling factor is whether the lesser offense


can be proved by the same facts that are used to


establish the charged offense.” [Cornell, supra at
 

354, quoting People v Torres (On Remand), 222 Mich
 

2The dissent criticizes the construction of MCL 768.32
 

set forth in Cornell, arguing that the Court should apply the


dictionary definition of “inferior.” 


We are confident that we applied the appropriate canon of


statutory construction in construing MCL 768.32 by giving


“inferior offense” its common-law meaning when it was codified


by the Legislature. See Pulver v Dundee Cement Co, 445 Mich


68, 75; 515 NW2d 728 (1994)(“words and phrases that have


acquired a unique meaning at common law are interpreted as


having the same meaning when used in statutes dealing with the


same subject”).
 

3Necessarily included lesser offenses are offenses in


which the elements of the lesser offense are completely


subsumed in the greater offense. Cornell, supra at 356. 


4

Cognate offenses share several elements, and are of the


same class or category as the greater offense, but the cognate


lesser offense has some elements not found in the greater


offense. Cornell, supra at 344.
 

5
 
 

 

App 411, 419-420; 564 NW2d 149 (1997)].
 

Relying on this definition of “inferior,” this Court
 

concluded that MCL 768.32 only permitted consideration of
 

necessarily included lesser offenses. Cornell, supra at 353­

354. Thus, we held that an inferior-offense instruction is
 

appropriate only if the lesser offense is necessarily included
 

in the greater offense, meaning, all the elements of the
 

lesser offense are included in the greater offense, and a
 

rational view of the evidence would support such an
 

instruction.5 Id. at 357. 


5The dissent criticizes the majority opinion for adopting


“obiter dictum” from Cornell to conclude that inferior
 

offenses are limited to necessarily included lesser offenses.


We disagree with this mischaracterization of Cornell’s
 

analysis.
 

In Cornell, the Court was charged with the task of


construing MCL 768.32(1), because MCL 768.32(1) governs when


instructions are given for “inferior” offenses. To that end,
 

we expressly adopted Justice COLEMAN’s dissent in Jones, infra,


which would foreclose consideration of cognate lesser included


offenses. Cornell, supra at 353. See also Cornell, supra at
 

356 n 9, in which we state, “as we have already explained, the


wording of MCL 768.32 also limits consideration of lesser


offenses to necessarily included lesser offenses.” We then


expressly held that a requested instruction on a necessarily


included lesser offense is proper if the charged greater


offense requires a jury to find a disputed factual element


that is not part of the lesser offense and a rational view of


the evidence would support it. Id. at 357.
 

Accordingly, we disagree with the dissent’s
 

characterization of the Cornell analysis as “obiter dictum.”


Rather, the Cornell discussion of the limits of MCL 768.32 was
 

central to our construction of the statute and thus central to
 

the resolution of the issues before the Cornell Court. 


6
 
B. MANSLAUGHTER IS AN INFERIOR OFFENSE OF MURDER
 

Manslaughter is an inferior offense of murder because
 

manslaughter is a necessarily included lesser offense of
 

murder.
 

1. THE ELEMENTS OF COMMON-LAW MURDER AND MANSLAUGHTER
 

Common-law murder encompasses all killings done with
 

malice aforethought and without justification or excuse.
 

People v Scott, 6 Mich 287, 292-293 (1859). See also People
 

v Potter, 5 Mich 1, 6 (1858)(“Murder is where a person of
 

sound memory and discretion unlawfully kills any reasonable
 

creature in being, in the peace of the state, with malice
 

prepense or aforethought, either express or implied.”). 


First-degree murder is defined in MCL 750.316.6 All
 

6MCL 750.316 provides in pertinent part:


(1) A person who commits any of the following


is guilty of first degree murder and shall be


punished by imprisonment for life: 


(a) Murder perpetrated by means of poison,


lying in wait, or any other willful, deliberate,


and premeditated killing. 


(b) Murder committed in the perpetration of,


or attempt to perpetrate, arson, criminal sexual


conduct in the first, second, or third degree,


child abuse in the first degree, a major controlled


substance offense, robbery, carjacking, breaking


and entering of a dwelling, home invasion in the


first or second degree, larceny of any kind,


extortion, or kidnapping. 


(c) A murder of a peace officer or a corrections
 

7
 
other murders are murders in the second degree. MCL 750.317.
 

See also People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868
 

(1998), which enumerated the elements of second-degree murder
 

as (1) death, (2) caused by defendant’s act, (3) with malice,
 

and (4) without justification. 


Manslaughter is murder without malice. See Potter, supra
 

at 9 (noting that without malice aforethought, “a killing
 

would be only manslaughter, if criminal at all”). See also
 

People v Palmer, 105 Mich 568, 576; 63 NW 656 (1895),
 

remarking:
 

“Manslaughter is perfectly distinguishable


from murder, in this: That though the act that


causes death be unlawful or willful, though


attended with fatal results, yet malice, either


expressed or implied, which is the very essence of


murder, is to be presumed to be wanting in
 

manslaughter.” [Quoting the trial court jury


instructions.]
 

The common law recognizes two forms of manslaughter: voluntary
 

officer committed while the peace officer or
 

corrections officer is lawfully engaged in the


performance of any of his or her duties as a peace


officer or corrections officer, knowing that the


peace officer or corrections officer is a peace


officer or corrections officer engaged in the


performance of his or her duty as a peace officer


or corrections officer. 


Although first-degree murder is defined by statute, the


statute is understood to include the common-law definition of
 

murder. See People v Riddle, 467 Mich 116, 125-126; 649 NW2d
 

30 (2002). See also People v Utter, 217 Mich 74, 86; 185 NW


830 (1921).
 

8
 
and involuntary. People v Townes, 391 Mich 578, 589; 218 NW2d
 

136 (1974).
 

Common-law voluntary manslaughter is defined as:
 

[T]he act of killing, though intentional, [is]


committed under the influence of passion or in heat


of blood, produced by an adequate or reasonable


provocation, and before a reasonable time has
 

elapsed for the blood to cool and reason to resume


its habitual control, and is the result of the


temporary excitement, by which the control of


reason was disturbed, rather than of any wickedness


of heart or cruelty or recklessness of disposition


. . . .[Maher v People, 10 Mich 212, 219 (1862).] 


See also Townes, supra at 590 (“A defendant properly convicted
 

of voluntary manslaughter is a person who has acted out of a
 

temporary excitement induced by an adequate provocation and
 

not from the deliberation and reflection that marks the crime
 

of murder.”). Thus, to show voluntary manslaughter, one must
 

show that the defendant killed in the heat of passion, the
 

passion was caused by adequate provocation, and there was not
 

a lapse of time during which a reasonable person could control
 

his passions. See People v Pouncey, 437 Mich 382, 389; 471
 

NW2d 346 (1991).7 Significantly, provocation is not an
 

element of voluntary manslaughter. See People v Moore, 189
 

7In addition to common-law manslaughter, the Legislature


has also determined that manslaughter shall exist in several


other circumstances. See, e.g., MCL 750.322 (the willful


killing of an unborn child by injury to its mother), MCL


750.323 (the killing of a quick child by use of medicine or an


instrument, and MCL 750.329 (a killing committed without


malice by means of an intentionally aimed firearm).
 

9
 
 

Mich App 315, 320; 472 NW2d 1 (1991). Rather, provocation is
 

the circumstance that negates the presence of malice. Scott,
 

supra at 295. 


Involuntary manslaughter is the unintentional killing of
 

another, without malice, during the commission of an unlawful
 

act not amounting to a felony and not naturally tending to
 

cause great bodily harm; or during the commission of some
 

lawful act, negligently performed; or in the negligent
 

omission to perform a legal duty. See Townes, supra at 590.
 

See also People v Helfin, 434 Mich 482, 507-508; 456 NW2d 10
 

(1990)(opinion by RILEY, C.J.).
 

2. THE SOLE ELEMENT DISTINGUISHING MANSLAUGHTER AND MURDER IS MALICE
 

An examination of the historical development of homicide
 

law informs this Court that manslaughter is a necessarily
 

included lesser offense of murder because the elements of
 

manslaughter are included in the offense of murder. 


a. HOMICIDE IN ENGLISH COMMON LAW
 

In early English common law, a killing was either
 

justifiable homicide; excusable murder committed by
 

misadventure or accident, or in self-defense; or capital
 

murder, characterized by “malice aforethought” and punishable
 

by death. See 2 Pollock and Maitland, The History of English
 

Law (Cambridge: University Press, 1952), ch VIII, Crime and
 

Tort, § 2, p 485. However, during the fourteenth and
 

10
 
fifteenth centuries, an exemption called the “benefit of
 

clergy” was widely used as a device to mitigate mandatory
 

death sentences. Hall, Legal fictions and moral reasoning:
 

Capital punishment and the mentally retarded defendant after
 

Penry v Johnson, 35 Akron L R 327, 353 (2002).
 

The “benefit of clergy” was an exemption that allowed an
 

offender to be sentenced by the ecclesiastical courts, which
 

did not impose capital punishment.8 Though it was initially
 

intended to benefit clergy, it also benefitted persons who
 

could satisfy its literacy test. See Kealy, Hunting the
 

dragon: Reforming the Massachusetts murder statute, 10 B U Pub
 

Int L J 203, 205-206 (2001). Thus, it was not long before
 

persons other than clerics claimed the exemption, so that the
 

“benefit of clergy” exemption benefitted anyone who could
 

read. See Justice Harlan’s discussion in McGautha v
 

California, 402 US 183, 197; 91 S Ct 1454; 28 L Ed 2d 711
 

(1971), noting that although all criminal homicides were prima
 

facie capital cases, the “benefit of clergy” was available to
 

almost any man who could read. 


In response to the exemption’s widespread availability,
 

statutes were passed throughout the fifteenth and sixteenth
 

8The “benefit of clergy” was a political compromise


between the state and the church, intended to ensure errant


clerics who were convicted in the royal court were turned over


to the ecclesiastical courts for sentencing. 


11
 
 

 

centuries proclaiming the exemption unavailable for homicides
 

committed under particularly reviled circumstances,
 

collectively termed “murder with malice aforethought.”
 

Moreland, The Law of Homicide (Indianapolis: The Bobbs-Merrill
 

Co, Inc, 1952), ch 2, The Development of Malice Aforethought,
 

p 9. The “benefit of clergy” remained available, however, for
 

offenders convicted of less culpable homicides. Id.
 

Thereafter, unjustified and unexcused homicide was divided
 

into two separate crimes: “wilful murder of malice
 

aforethought”, a capital offense for which the “benefit of
 

clergy” was unavailable, and manslaughter. Plucknett, A
 

Concise History of the Common Law (New York: The Lawyers Co-


Operative Pub Co, 1927), ch 2, The Felonies, pp 395-396. The
 

critical difference between murder and manslaughter was the
 

presence or absence of “malice aforethought.” Moreland, supra
 

at 10.
 

b. “MALICE AFORETHOUGHT”
 

The phrase “malice aforethought” has evolved over the
 

centuries. During the late fifteenth and early sixteenth
 

centuries, “malice aforethought” meant that one possessed an
 

intent to kill well in advance of the act itself. Id. at 10.
 

Notably, the emphasis was on “aforethought,” so that the
 

critical difference between capital and noncapital murder was
 

the passage of time between the initial formulation of the
 

12
 
intent to kill and the act itself. Moylan, Criminal Homicide
 

Law (Maryland Institute for Continuing Professional Education
 

of Lawyers), ch 2, § 2.7. The term “malice” alone had little
 

significance beyond meaning an intent to commit an unjustified
 

and unexcusable killing. Id. The purpose of the “malice
 

aforethought” element was to distinguish between deliberate,
 

calculated homicides and homicides committed in the heat of
 

passion. Kealy, supra at 206.
 

As more and more defendants claimed they lacked an intent
 

to kill before the act was committed, juries and courts
 

increasingly rejected this argument. The result was a caseby-case “semantic erosion” of the term “aforethought,” until
 

“malice aforethought” meant nothing more than the intent to
 

kill had to exist at the time the act was committed. Perkins
 

& Boyce, Criminal Law (3rd ed), Murder, § 1, p 58 (“[a]s case
 

after case came before the courts for determination . . .
 

there came to be less and less emphasis upon the notion of a
 

well-laid plan. And at the present day, the only requirement
 

in this regard is that it must not be an afterthought”).
 

There was, consequently, a parallel erosion of the distinction
 

between capital murder, for which aforethought was required,
 

and noncapital homicide, for which it was not. 


Interestingly, although the English courts grew weary of
 

the oft abused “lack of aforethought” defense, it was
 

13
 
nevertheless evident that there was still some interest in
 

distinguishing between a homicide committed in “cold-blood”
 

and one committed under circumstances that mitigated one’s
 

culpability. To express this distinction, the focus shifted
 

from “aforethought” to “malice.” Moreland, supra at 11
 

(“[t]he law of homicide seems thus to have now progressed from
 

a place where the mental element was of no importance to a
 

place where at the beginning of the seventeenth century it had
 

become a factor of prime importance”).
 

Because there was a need to distinguish the most serious
 

homicide from the rest, and because “aforethought” no longer
 

had legal significance, malice evolved from being merely an
 

intent to kill to also evidencing the absence of mitigating
 

circumstances. Moylan, supra at § 2.7. Consequently, the
 

presence of malice became both synonymous with the absence of
 

mitigating circumstances and the sole element distinguishing
 

murder from manslaughter.
 

We glean from our examination of manslaughter’s
 

historical development that manslaughter is defined to reflect
 

the absence of malice. Thus, the only element distinguishing
 

murder from manslaughter is malice. 


3. MANSLAUGHTER IS A NECESSARILY LESSER INCLUDED OFFENSE OF MURDER
 

A necessarily lesser included offense is an offense whose
 

elements are completely subsumed in the greater offense.
 

14
 
Cornell, supra at 356. 


Regarding voluntary manslaughter, both murder and
 

voluntary manslaughter require a death, caused by defendant,
 

with either an intent to kill, an intent to commit great
 

bodily harm, or an intent to create a very high risk of death
 

or great bodily harm with knowledge that death or great bodily
 

harm was the probable result. However, the element
 

distinguishing murder from manslaughter–malice–is negated by
 

the presence of provocation and heat of passion. See Scott,
 

supra at 295. Thus, we conclude, the elements of voluntary
 

manslaughter are included in murder, with murder possessing
 

the single additional element of malice. 


Regarding involuntary manslaughter, the lack of malice is
 

evidenced by involuntary manslaughter’s diminished mens rea,
 

which is included in murder’s greater mens rea. See People v
 

Datema, 448 Mich 585, 606; 533 NW2d 272 (1995), stating:
 

“[P]ains should be taken not to define [the


mens rea required for involuntary manslaughter] in


terms of a wanton and wilful disregard of a harmful


consequence known to be likely to result, because
 

such a state of mind goes beyond negligence and
 

comes under the head of malice.”
 

Unlike murder, involuntary manslaughter


contemplates an unintended result and thus requires


something less than an intent to do great bodily


harm, an intent to kill, or the wanton and wilful


disregard of its natural consequences. [Citations


omitted; emphasis added.]
 

See also United States v Browner, 889 F2d 549, 553 (CA 5,
 

15
 
1989), stating, “In contrast to the case of voluntary
 

manslaughter . . . the absence of malice in involuntary
 

manslaughter arises not because of provocation induced
 

passion, but rather because the offender’s mental state is not
 

sufficiently culpable to reach the traditional malice
 

requirements.”
 

Thus, we conclude that the elements of involuntary
 

manslaughter are included in the offense of murder because
 

involuntary manslaughter’s mens rea is included in murder’s
 

greater mens rea.
 

Accordingly, we hold the elements of voluntary and
 

involuntary manslaughter are included in the elements of
 

murder. Thus, both forms of manslaughter are necessarily
 

included lesser offenses of murder. Because voluntary and
 

involuntary manslaughter are necessarily included lesser
 

offenses, they are also “inferior” offenses within the scope
 

of MCL 768.32. Consequently, when a defendant is charged with
 

murder, an instruction for voluntary and involuntary
 

manslaughter must be given if supported by a rational view of
 

the evidence. Cornell, supra. 


4. TODAY’S HOLDING IS CONSISTENT WITH EARLY MICHIGAN COMMON LAW
 

Today’s holding is consistent with our courts’ historical
 

understanding of the law of murder. Michigan courts have
 

historically concluded that a manslaughter instruction is
 

16
 
appropriate on a murder charge if a manslaughter instruction
 

is supported by a rational view of the evidence. See, e.g.,
 

Hanna v People, 19 Mich 316, 321 (1869)(in consideration of
 

MCL 768.32's similarly worded predecessor, “without this
 

provision, the common law rule would, under the statute,
 

dividing murder into degrees, have authorized a conviction not
 

only for murder in the second degree, but for manslaughter
 

also, under an indictment for murder in the first degree, all
 

these being felonies included in the charge”)(emphasis added).
 

See People v Treichel, 229 Mich 303, 307-308; 200 NW 950
 

(1924), stating:
 

This Court has repeatedly held, where the


charge as laid includes murder in the first degree,


and the proofs establish such degree, and no lesser


degree, it is not error for the court to instruct


the jury that, in order to convict, murder in the


first degree must be found. But this court has not
 

held, under a charge like here laid, the court must
 

instruct the jury to find murder in the first


degree or acquit. Whether such an instruction may


be given or not depends upon the evidence.
 

[Emphasis in original.]
 

[In this case, the] information charged murder


in the first and second degrees, and this was


inclusive of manslaughter. The evidence left it
 

open for the jury to find defendants guilty of


manslaughter.
 

See also People v Droste, 160 Mich 66, 78-79; 125 NW 87
 

(1910)(concluding that the trial court was “clearly warranted”
 

in instructing the jury on manslaughter in a murder case
 

because a jury could have concluded there was sufficient
 

17
 
intoxication or passion to “rob [defendant’s] act of the
 

necessary elements of murder”); People v Andrus, 331 Mich 535,
 

546-547; 50 NW2d 310 (1951)(remarking that it was proper for
 

the court to submit the lesser included offenses of seconddegree murder and manslaughter because the evidence was
 

sufficient to support the offense). 


It was not until this Court overlooked MCL 768.32, and
 

introduced “cognate” lesser included offenses, that the
 

relationship between manslaughter and murder became muddled.
 

In People v Jones, 395 Mich 379; 236 NW2d 461 (1975), this
 

Court, without consideration of MCL 768.32, recognized a new
 

category of lesser included offenses called “cognate”
 

offenses. Cognate offenses differed from necessarily included
 

lesser offenses in that cognate offenses share with the higher
 

offense several elements and are of the same class or
 

category, but they contain elements not found in the higher
 

offense. See Cornell, supra at 344-346. Faced with a
 

category of lesser included offenses not previously recognized
 

in Michigan, this Court, in Van Wyck, supra, concluded that
 

manslaughter was a cognate lesser included offense of murder:
 

We hold that manslaughter is not a necessarily


included offense within the crime of murder but
 

that it may nonetheless be an included offense if


the evidence adduced at trial would support a
 

verdict of guilty for that crime.
 

18
 
As we noted in People v Ora Jones, supra:
 

“The common-law definition of lesser included
 

offenses is that the lesser must be such that it is
 

impossible to commit the greater without first


having committed the lesser.” [Citation omitted.]
 

* * *
 

[With regard to the murder/manslaughter


relationship], [t]he absence of mitigating


circumstances need not be established in order to
 

convict one of first- or second-degree murder.


Consequently, it cannot be said voluntary


manslaughter is a necessarily included offense


within the crime of murder; it is incorrect to


state that it is impossible to commit first- or


second-degree murder without having first committed


manslaughter. [Van Wyck, supra at 268-269.]
 

Notably, the Van Wyck Court failed to discuss earlier commonlaw decisions characterizing manslaughter as a lesser included
 

offense of murder before cognate offenses were recognized. We
 

also note that the Van Wyck Court did not give any
 

consideration to the unique relationship between murder and
 

manslaughter.
 

For the reasons discussed above, we conclude manslaughter
 

is a necessarily included lesser offense of murder. We further
 

conclude that Van Wyck’s analysis is flawed inasmuch as it is
 

premised on a body of law recognizing cognate lesser included
 

offenses in contravention of MCL 768.32. Accordingly, to the
 

extent that Van Wyck and its progeny are inconsistent with
 

this opinion and our opinion in Cornell, they are expressly
 

overruled. 


19
 
C. AN INVOLUNTARY-MANSLAUGHTER INSTRUCTION WAS NOT WARRANTED
 

Having concluded that manslaughter is an inferior offense
 

of murder because it is a necessarily included lesser offense,
 

we now consider whether the trial court erred in refusing to
 

give an involuntary-manslaughter instruction. 


An inferior-offense instruction is appropriate only when
 

a rational view of the evidence supports a conviction for the
 

lesser offense. Cornell, supra at 357. In this case, the
 

Court of Appeals concluded there was sufficient evidence to
 

support an involuntary-manslaughter instruction. In reaching
 

this conclusion, the Court relied on defendant’s statement to
 

the police recounting what happened:
 

I was at a gas station on Seven Mile near


Hoover when Ivan pulled up in a gray newer model


car and asked me did I want some bud. Ivan asked
 

me did I have half on it. I said, yes. I then got


into the car with Ivan. Ivan stopped by one house,


then he went to the bud house. When we got to the


house, Ivan stayed in the car and I went to the


house. When I got to the front door, there was a


big guy coming out and motioned for me just to go


on in. The guy that let me in continued talking to


a big dark-skinned guy with a deep voice. Another
 

guy, kind of frail [Chillers], sitting in a love


seat asked me how many I needed. I responded by


saying, just one back. That’s when Ivan came to
 

the door. Ivan started talking to the guy with the


deep voice. The guy that let me in then left. I
 

started to get my stuff from the frail guy. While
 

I’m getting my stuff, I heard some tussling. I
 

look back and Ivan was tussling with the big guy


with the deep voice. They were tussling over a


handgun with a dark barrel. While they were


tussling, I heard approximately two shots. They


then fell into a corner over a chair. I then heard
 

the frail guy holler. He had pulled out a shiny
 

20
 
revolver and pointed it at Ivan and the guy he was


tussling with. I then tried to knock the gun away
 

from [Chillers]. As I was attempting to knock the
 

gun away from [Chillers], he pulled the trigger. I
 

then tried to run but I tripped over Ivan . . . .


[Emphasis added.]
 

The Court of Appeals concluded that defendant’s statement
 

that Chillers pulled the trigger when defendant tried to knock
 

the gun away from him was sufficient to support an
 

involuntary-manslaughter conviction. The Court reasoned that
 

defendant’s statement could support a finding that the
 

victim’s killing was an unintended death, without malice, and
 

not caused by any action of defendant naturally tending to
 

cause death.
 

We disagree and conclude that defendant’s statement alone
 

is insufficient to support an involuntary-manslaughter
 

instruction. Defendant’s statement does not indicate that the
 

shot fired during the struggle struck or killed the victim. In
 

fact, during his request for an involuntary-manslaughter
 

instruction, defendant argued that the shot fired during the
 

struggle was the nonfatal shot to the victim’s leg.9
 

9

Defense counsel argued in support of the manslaughter


instruction as follows:
 

Alternatively there’s also involuntary


manslaughter, now that I think about it, in terms


of that gun potentially accidentally [sic] going


off during the struggle over the gun at the time


it’s discharged. That’s how I claim that the shot
 

to the leg happened, when they were struggling over
 

the gun.” [Emphasis added.]
 

21
 
 

 

Therefore, because there is no evidence that the shot
 

fired during the struggle killed the victim, and in light of
 

the substantial evidence that the shot was not the fatal shot,
 

we conclude a rational view of the evidence does not support
 

an involuntary-manslaughter instruction.
 

We further disagree with the conclusion of the Court of
 

Appeals that an instruction for common-law involuntary
 

manslaughter was premised on defendant’s theory of the case.
 

Defendant’s theory throughout trial was that someone else was
 

responsible for the victim’s death. Consider defendant’s
 

opening statement, in which he sets forth his theory:
 

What really occurred in this situation that


you’ll see is sure, my client Mr. Mendoza and Mr.


Tims went over to that location. They didn’t go


over there to harm anybody. They went over there


to buy what Mr. Stockdale and what Mr. Chillers


were in the business to sell, which is marijuana


. . .
 

* * *
 

You’ll hear that, that Mr. Tims . . . and


another person were tussling over a handgun. And
 

while they’re tussling, shots went off. And my


client went over there to try to prevent that from


happening. And that’s when the tussle broke out.
 

When my client’s running out of that location, he


gets shot by Mr. Chillers. 


So, it’s not my client that’s doing any
 

shooting in there. It’s Mr. Chillers who’s causing
 

all these problems and doing shooting in there.
 

Expert testimony established that the leg wound was not the


fatal injury. 


22
 
 

* * * 


So, what happened here is after my client,


after he’s running away and Mr. Chillers shoots him


and he’s running to the car wounded, Mr. Tims on


his own goes back up to that front door with that


revolver in his hand and started shooting into the


house. And that’s when Mr. Stockdale gets shot in
 

the chest.
 

* * * 


This is what I believe the evidence will show
 

. . . That gun was never in the possession of Mr.


Mendoza. That gun was the one identified as being


in the hands of Mr. Tims when he went back on his
 

own. [Emphasis added.] 


It is, therefore, clear that defendant’s theory was that Tims
 

was responsible for the victim’s death.
 

In sum, we conclude that a rational view of the evidence
 

did not support an involuntary-manslaughter instruction.
 

Therefore, it was not error for the trial court to deny the
 

instruction. Accordingly, we reverse the judgment of the
 

Court of Appeals.
 

IV. CONCLUSION
 

Manslaughter, in both its forms, is an inferior offense
 

of murder within the meaning of MCL 768.32. Therefore, an
 

instruction is warranted when a rational view of the evidence
 

would support it. Van Wyck and its progeny are overruled to
 

the extent the Van Wyck analysis of the relationship between
 

manslaughter and murder holds otherwise.
 

In this case, we conclude a rational view of the evidence
 

did not support an involuntary-manslaughter instruction.
 

23
 
Therefore, the trial court did not err when it refused to give
 

the instruction. Accordingly, we reverse the judgment of the
 

Court of Appeals and reinstate defendant’s second-degree
 

murder conviction.
 

Robert P. Young, Jr.


Maura D. Corrigan


Elizabeth A. Weaver
 

Clifford W. Taylor


Stephen J. Markman
 

24
 
___________________________________ 

v 

S T A T E O F M I C H I G A N
 

SUPREME COURT
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellant,
 

No. 120630
 

RICHARD MENDOZA,
 

Defendant-Appellee.
 

CAVANAGH, J. (concurring).
 

This Court granted leave to appeal to determine whether
 

MCL 768.32 permits a manslaughter instruction when a defendant
 

has been charged with murder. Because the majority has
 

misinterpreted MCL 768.32, I must respectfully dissent from
 

its analysis, though I concur in its result. 


The majority applies obiter dictum from People v Cornell,
 

466 Mich 335; 646 NW2d 127 (2002), to hold that an “inferior”
 

offense, as articulated by the Legislature in 1846, is limited
 

to a necessarily included lesser offense.10 While I agree that
 

manslaughter is an offense inferior to and necessarily
 

included within the crime of murder, I do not agree that this
 

10 MCL 768.32, formerly codified as tit XXX, ch 161, § 16,


Rev Stat of 1846. 

 

Court should limit instructions authorized by MCL 768.32 to
 

only those that are necessarily included in the charged
 

offense. Rather, I would hold that, when requested, a jury
 

may be instructed on lesser or “inferior” offenses of the
 

crime charged, if those offenses are supported by the
 

evidence.
 

I
 

The proper scope of MCL 768.32 presents a question of
 

statutory interpretation, which we review de novo. In re MCI,
 

460 Mich 396, 413; 596 NW2d 164 (1999).
 

II
 

The relevant portion of MCL 768.32 now provides: 


(1) Except as provided in subsection (2), upon
 

an indictment for an offense, consisting of
 

different degrees, as prescribed in this chapter,


the jury, or the judge in a trial without a jury,


may find the accused not guilty of the offense in


the degree charged in the indictment and may find


the accused person guilty of a degree of that


offense inferior to that charged in the indictment,


or of an attempt to commit that offense.[11]
 

Relying on established doctrines of interpretation, one
 

11 The current subsection 2 refers to controlled-substance
 

provisions. The original statute provided: 


Upon an indictment for any offence, consisting


of different degrees, as prescribed in this title,


the jury may find the accused not guilty of the


offence in the degree charged in the indictment,


and may find such accused person guilty of any


degree of such offence, inferior to that charged in


the indictment, or of an attempt to commit such


offence. [Rev Stat of 1846, tit XXX, ch 161,
 

§ 16.]
 

2
 
 

cannot disagree that the first step in discerning legislative
 

intent requires review of the statutory text adopted by the
 

Legislature. House Speaker v State Administrative Bd, 441
 

Mich 547, 567; 495 NW2d 539 (1993). See also MCL 8.3a (“All
 

words and phrases shall be construed and understood according
 

to the common and approved usage of the language . . . .”).
 

If unambiguous, the Legislature will be presumed to have
 

intended the meaning expressed. Lorencz v Ford Motor Co, 439
 

Mich 370, 376; 483 NW2d 844 (1992). We often refer to the
 

dictionary to discern a statute’s plain meaning. See Wayne Co
 

Prosecuting Attorney v Levenburg & Richmond, 406 Mich 455,
 

465-466; 280 NW2d 810 (1979) (dictionaries provide plain
 

meaning). 


The dispositive issue presented for review is the scope
 

of the term “inferior,” which may be defined as follows:
 

Inferior. 1. Lower in place. 2. Lower in


station, age, or rank in life. 3. Lower in
 

excellence or value; as a poem of inferior merit.


4. Subordinate; of less importance. [American


Dictionary of the English Language, Noah Webster,


Vol. 1, (originally published 1828, reprinted


1970).12]
 

12 See also: 


Inferior. Is usually employed in law to


designate the lower of two grades of authority,


jurisdiction, or power. [Dictionary of Terms and


Phrases used in American or English Jurisprudence,


Vol 1, p 603 (1879).]
 

(continued...) 

3
 
This definition has changed little since the nineteenth
 

century, and the meaning of an offense “inferior” to another
 

continues to suggest a lower offense, or one that is somehow
 

less than the charged crime.13 Applied here, this
 

interpretation supports a “lesser offense” approach. 


In spite of this textual evidence, the majority would
 

prefer to adopt a “necessarily included lesser offense”
 

interpretation, assigning a meaning to "inferior" that is
 

contrary to its everyday usage, while providing no textual
 

explanation for its narrow construction. Instead, the
 

majority adopts its obiter dictum from Cornell and relies on
 

several prudential (i.e., policy-based) reasons to reject an
 

(...continued) 

Inferior. 1. Lower in position; situated below 

. . . 3. Lower in degree, rank, importance,

quality, amount, or other respect; of less value or

consideration; lesser; subordinate. With to = 

lower than, less than, not so good or great as;

unequal to . . . . [Oxford English Dictionary (2d

ed).] 

Inferior. . . 3. Lower in degree, rank,


importance, quality, amount, or other respect; of


less value or consideration . . . b. with to =
 

lower than, less than, not so good or great as;


unequal to. [A New English Dictionary on Historical
 

Principles, Murray, Oxford (1901, originally


published 1888).]
 

13 Inferior. adj. 1. Situated under or beneath. 2. Low
 

or lower in order, degree, or rank. 3. Low or lower in
 

quality, status, or estimation. [American Heritage Dictionary
 

of the English Language, New College Edition (1981).] 


4
 
interpretation of “inferior” that conforms with its everyday
 

usage.
 

Foremost among the majority’s rationale may be the
 

alleged ease with which the necessarily included lesser
 

offense framework may be applied. Cornell, supra. However,
 

I cannot agree that the majority’s framework can be applied
 

more simply than a “lesser offense” inquiry because each
 

varies on the basis of the degree of specificity with which
 

one reviews the elements of a crime. This Court, for example,
 

has wavered on the precise issue presented here. In People v
 

Van Wyck, 402 Mich 266; 262 NW2d 638 (1978), this Court held
 

that manslaughter was not a necessarily included lesser
 

offense of murder: 


The absence of mitigating circumstances need


not be established in order to convict one of
 

first- or second-degree murder. Consequently, it


cannot be said that voluntary manslaughter is a


necessarily included offense within the crime of


murder; it is incorrect to state that it is
 

impossible to commit first- or second-degree murder


without having first committed manslaughter. [Id.
 

at 269.]
 

As the majority correctly notes today, when viewed in
 

general terms, “the only element distinguishing murder from
 

manslaughter is malice.” Ante at 14. Hence, manslaughter is
 

both an “inferior” and a necessarily included lesser offense
 

of murder; the difference between Van Wyck and the Court’s
 

decision today results from the degree of precision employed
 

5
 
by the Court in its analysis of the elements of murder and
 

manslaughter.
 

Instead of addressing such difficulties, the majority
 

ignores this and similar inconsistencies. For example,
 

although “felonious assault” is not strictly a necessarily
 

included lesser offense of “assault with intent to do great
 

bodily harm less than murder” because the former requires the
 

use of a dangerous weapon, it is clearly an “inferior” charge
 

as prescribed by any reasonable interpretation of the statute
 

(i.e., “inferior”), yet the majority’s approach provides no
 

means by which to recognize this relationship. Similarly
 

troubling, the crime of “assault with intent to do great
 

bodily harm” is plainly included within the crime of “assault
 

with intent to murder,” but our Courts have held that
 

different degrees of malice (i.e., intent to do great harm
 

versus intent to murder) constitute cognate–not necessarily
 

included–offenses. See, e.g., People v Norwood, unpublished
 

opinion per curiam of the Court of Appeals, issued March 20,
 

2001 (Docket No. 218207). In sum, the majority’s doctrine
 

cannot logically provide the bright-line rule that it seeks,
 

and its narrow construction is not supported by the text. 


III
 

Although, I do not dispute that the meaning of MCL 768.32
 

6
 
has been subject to debate lately,14 the majority has recently
 

acknowledged that, as early as 1869, this Court permitted
 

convictions on “inferior” offenses:
 

[E]xtending to all cases in which the statute


has substantially, or in effect, recognized and


provided for the punishment of offenses of
 

different grades, or degrees of enormity, wherever


the charge for the higher grade includes a charge


for the less. In this view only, can any effect be


given to it, as declaratory of, or altering the


common law. [Hanna v People, 19 Mich 316, 322


(1869).]
 

Before Cornell, this Court repeatedly affirmed this
 

lesser offense approach,15 in accord with the plain meaning of
 

14 Cornell, supra (noting in dicta that MCL 768.32 limits


instructions to necessarily included lesser offenses and


overruling, inter alia, People v Jones, 395 Mich 379; 236 NW2d


461 [1975], People v Chamblis, 395 Mich 408; 236 NW2d 473


[1975]). 


15 See also People v Andrus, 331 Mich 535; 50 NW2d 310


(1951) (noting this Court’s treatment of MCL 768.32, which


permits an instruction on lesser offenses when supported by


the evidence); People v Jones, 273 Mich 430; 263 NW 417 (1935)


(holding that the court erred so as to require reversal when


it affirmatively excluded a lesser offense from the jury’s


consideration); People v Abbott, 97 Mich 484; 56 NW 862 (1893)


(reversing where the court failed to instruct the jury on a


lesser included offense); People v Courier, 79 Mich 366; 44 NW


571 (1890) (refusing the defendant’s request for a new trial


where the court did provide the jury with a lesser included


rape offense instruction); People v Prague, 72 Mich 178; 40 NW


243 (1888) (“The crime of an assault with intent to commit the


crime of murder is one of a higher grade and greater enormity


than the crime of assault with intent to do great bodily harm


less than the crime of murder. It belongs to the catalogue of


offenses against the lives and persons of individuals, and we


think the charge was authorized by the opinion of this Court


in Hanna . . . .”); People v Warner, 53 Mich 78; 18 NW 568


(1884) (a conviction for simple assault may be had on any


(continued...) 

7
 
the statute. In People v Jones, 395 Mich 379, 387; 236 NW2d
 

461 (1975), for example, this Court confirmed a case-by-case
 

approach to inferior offense instructions, acknowledging that
 

the strict, common-law rule, which had permitted lesser
 

offense instructions only when necessarily included in the
 

crime charged, had been replaced by a statute that authorized
 

a broader range of convictions “inferior” to the crime
 

charged. Although, the majority attempts to claim its holding
 

has a historical foundation, it, in fact, usurps this Court’s
 

longstanding interpretation, which accords with the statute’s
 

plain meaning.
 

IV
 

The majority may claim I have done nothing but pine for
 

the “cognate” or related-offense approach, which it expressly
 

rejected in Cornell. To the degree that a “cognate” offense
 

is “inferior” to the crime charged, I cannot disagree. I
 

remain committed to the “lesser included offense”
 

interpretation of “inferior” simply because it is best able to
 

honor the statutory text, as noted above. 


(...continued)

information charging assault on an officer and resisting


arrest); Campbell v People, 34 Mich 351 (1876) (“. . . under


an indictment charging a specific offense it was competent for


the jury to find the respondent guilty of a lesser offense


included in it. The lesser offense of felonious assault is
 

necessarily included in the offense of rape; the completed


offense being the aggravation of the criminal assault.”).
 

8
 
Further, it accords with the longstanding doctrine that
 

requires courts to construe criminal statutes in favor of
 

defendants. In United States v Wiltberger, 18 US (5 Wheat)
 

76, 95; 5 L Ed 31 (1820), Chief Justice Marshall noted: 


The rule that penal laws are to be construed


strictly, is perhaps not much less old than
 

construction itself. It is founded on the
 

tenderness of the law for the rights of
 

individuals; and on the plain principle that the


power of punishment is vested in the legislative,


not in the judicial department. It is the
 

legislature, not the Court, which is to define a


crime, and ordain its punishment. 


See also People v Webb, 127 Mich 29, 32; 86 NW 406 (1901)
 

(“Penal statutes must be strictly construed, and words used
 

are to be given their popular, rather than a technical,
 

meaning.”); Scalia, A Matter of Interpretation (Princeton,
 

N.J.; Princeton University Press, 1997), p 29 (“The rule of
 

lenity is almost as old as the common law itself, so I suppose
 

that is validated by sheer antiquity.”) Its application here
 

would give an accused the opportunity to request an 

instruction in conformity with defense theories, when 

supported by the evidence. 

V 

As noted, this Court today unanimously affirms that a
 

defendant facing a murder charge may request a manslaughter
 

instruction if supported by the evidence. However, nothing in
 

the record would support an involuntary-manslaughter
 

9
 
conviction in this case, which requires a finding of death,
 

caused by an act of defendant, with gross negligence. People
 

v Datema, 448 Mich 585, 610-613; 533 NW2d 272 (1995)
 

(Cavanagh, J., dissenting). Defendant’s statement to the
 

police suggests only that he attempted to prevent the alleged
 

gunman from shooting his friend. On the facts presented, if
 

the jury did not believe defendant was culpable of murder
 

beyond a reasonable doubt, the only reasonable alternative was
 

acquittal because defendant’s statement to police indicated an
 

attempt to save the life of another. People v Heflin, 434
 

Mich 482, 554 n 10; 456 NW2d 10 (1990) (Levin, J., dissenting)
 

(noting that the defense of another may justify homicide). To
 

permit a manslaughter conviction on the evidence presented
 

would result in a conviction against the great weight of the
 

evidence. Therefore, I agree that the Court of Appeals
 

opinion should be vacated and that defendant’s conviction
 

should be affirmed. 


VI
 

Because the majority has adopted an interpretation of MCL
 

768.32 contrary to its plain text and our long-settled rules
 

of statutory construction, I cannot join its rationale.
 

However, because I agree that manslaughter is an offense
 

“inferior” to murder, and because the evidence does not
 

support a manslaughter instruction, I concur in the result
 

10
 
only.
 

Michael F. Cavanagh


Marilyn Kelly
 

11