Opinion
Docket No. 29852.
Filed January 4, 2005.
Appeal from the District Court of the First Judicial District, State of Idaho, Kootenai County. Hon. John P. Luster, District Judge.
Order reducing charging from second degree murder to voluntary manslaughter, reversed.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for appellant.
John M. Adams, Kootenai County Public Defender, Coeur d'Alene, for respondent.
By this appeal we are called upon to examine and interpret the mental elements for second degree murder and voluntary manslaughter, as prescribed by Idaho statutes. The district court reduced the charge against Michael S. Porter from second degree murder to voluntary manslaughter based upon the court's determination that insufficient evidence was produced at the preliminary hearing to show that Porter intended to kill the victim. The State brings this interlocutory appeal from that order. Porter cross-appeals, contending that the charge should have been reduced further to involuntary manslaughter, because both second degree murder and voluntary manslaughter require actual intent to kill. We conclude that intent to kill is not a required element of either offense, and we therefore reverse the district court's order.
I. BACKGROUND
Porter met the victim, D.J. Flett, during an evening of drinking in a bar. At around 2 a.m., a conflict erupted between Porter and Flett outside the bar. Porter punched Flett, and after Flett fell, Porter hit him two or three more times in the face as Flett lay on the ground. Flett suffered extensive injuries to his face and head, including brain damage likely caused by his head hitting the pavement after he was knocked unconscious. Flett died from his injuries.
At the preliminary hearing, the State conceded that the evidence did not support a finding of intent to kill, but argued that the evidence did show malice aforethought and therefore supported the charge of second degree murder. The magistrate agreed with the State, holding that the State had met its burden to show malice aforethought although there was insufficient evidence to show intent to kill. Therefore, the magistrate held Porter to answer to the charge of second degree murder.
Porter then filed in the district court a motion to dismiss, arguing that intent to kill is an element of both second degree murder and the lesser included offense of voluntary manslaughter. Porter contended that the State had failed to produce evidence on the intent element and therefore the charge should be either dismissed or reduced to involuntary manslaughter. The district court reduced the charge to voluntary manslaughter, concluding that intent to kill, which was not shown by the evidence, was an essential element for second degree murder but not for voluntary manslaughter.
Both parties appeal. The State contends that intent to kill is not an element of second degree murder, so that charge should be reinstated, while Porter maintains that intent to kill is an element of both second degree murder and voluntary manslaughter.
II. ANALYSIS
To show probable cause at a preliminary hearing, the State must present substantial evidence demonstrating every material element of the offense charged. Idaho Criminal Rule 5.1(b); State v. Munhall, 118 Idaho 602, 606, 798 P.2d 61, 65 (Ct.App. 1990). Idaho Code § 19-815A permits a defendant held to answer to a criminal charge to challenge the sufficiency of evidence adduced at the preliminary hearing through a motion to dismiss.
A. Intent as an Element of Second Degree Murder
The State does not challenge the district court's finding, echoing that of the magistrate, that the evidence was insufficient to show intent to kill, but contends that the absence of such proof does not preclude Porter's prosecution for second degree murder because the mental element for second degree murder is malice aforethought, which does not require intent to cause the victim's death.
The elements of an offense are defined by statute. Unfortunately, the statutes addressing the elements of second degree murder fall far short of crystal clarity. Indeed, the fact that there is today room for disagreement concerning the elements of an offense specified by statutes that were adopted more than 100 years ago is attributable to the ambiguity and archaism of the statutory language as well as vagueness and inconsistency in judicial decisions applying them.
Idaho Code § 18-4001 defines murder as "the unlawful killing of a human being . . . with malice aforethought or the intentional application of torture to a human being, which results in the death of a human being." Thus, aside from torture murder, the mental element for murder under this statute is "malice aforethought." "Malice" is described as follows in I.C. § 18-4002, with statutory language that was initially adopted by the Idaho Territory in 1887.
See IDAHO TERR. REV. STAT. § 6561 (1887).
Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
These references to malice are the only statutory prescription of a mens rea element for second degree murder. Section 18-4002 allows room for debate about the nature of this mental element because it is unclear whether "express" and "implied" are varieties of malice or whether the discussion of "implied malice" merely refers to a manner in which express malice (intent to take a life) may be proven or inferred. This distinction is significant because if the statute is viewed as defining two forms of malice, then intent to kill is not in itself an essential element of second degree murder, for an "abandoned and malignant heart," as an alternative to intent to take a life, would satisfy the malice element.
The circumstances in which murder will constitute murder in the first degree are enumerated in I.C. § 18-4003(a) through (f). Murder of the second degree is any murder that is not described elsewhere in the statute as murder in the first degree. I.C. § 18-4003(g).
An interpretation that section 18-4002 defines at least two varieties of malice, either of which will suffice for second degree murder, draws support from State v. Snowden, 79 Idaho 266, 272, 313 P.2d 706, 709 (1957), where the Idaho Supreme Court stated that the evidence showed both express and implied malice on behalf of the defendant. It is also supported by State v. Shuff, 9 Idaho 115, 127-28, 72 P. 664, 668 (1903), overruled on other grounds by State v. White, 93 Idaho 153, 159, 456 P.2d 797, 803 (1969), where the Court approved a jury instruction which, in distinguishing between first degree and second degree murder, required a finding of intent to kill only in relation to whether the murder was willful, deliberate and premeditated, and therefore murder of the first degree. The Shuff holding thus implies that a form of malice other than actual intent to kill will suffice for second degree murder.
Subsequently, however, the Idaho Supreme Court plainly stated in State v. Birrueta, 98 Idaho 631, 570 P.2d 868 (1977), that intent to kill is an element of second degree murder. The Court there held that the defendant's guilty plea to second degree murder was invalid because it was not evident that he had understood that intent to kill was an element of the crime to which he was pleading guilty. The Court stated:
Intent to kill is an element of murder in the second degree. State v. Van Vlack, 57 Idaho 316, 364, 65 P.2d 736, 758 (1937). Therefore, before Birrueta could have been proven guilty of second degree murder, the evidence would have to indicate he formed the requisite intent.
Id. at 633, 570 P.2d at 870. It is noteworthy, however, that the Van Vlack opinion cited in this passage from Birrueta does not necessarily support the Birrueta statement that intent to kill is required. In Van Vlack it was said, "Intent to take life or the mental state of having an abandoned and malignant heart which means, of course, a condition of mind and which therefore is a mental state is the essential ingredient of murder in the second degree." Van Vlack, 57 Idaho at 364, 65 P.2d at 758 (emphasis added), overruled on other grounds by State v. White, 93 Idaho 153, 159, 456 P.2d 797, 803 (1969). This statement from Van Vlack, though ambiguous, certainly could be read to mean that either intent to take a life or the mental state of having an abandoned and malignant heart satisfies the mens rea component for second degree murder. If that is the meaning, then Van Vlack is contrary to the holding in Birrueta.
Whether Birrueta is supported by precedent is of no consequence for our task, however, for this Court lacks authority to overturn precedent from the Idaho Supreme Court, and given Birrueta's unequivocal statement that intent to kill is an element of second degree murder, our only remaining query is whether the Supreme Court has changed its position since Birrueta. Several more recent decisions lead us to conclude that it has.
In State v. Aragon, 107 Idaho 358, 690 P.2d 293 (1984), the defendant argued that the district court's jury instructions did not sufficiently distinguish the mental elements for first degree and second degree murder. The district court had instructed that, "Malice is that state of mind manifested by the doing of an unlawful and felonious act intentionally, deliberately, and without legal cause or excuse," and also instructed on express and implied malice using the words of I.C. § 18-4002. The instructions then distinguished between first and second degree murder as follows:
As set forth in the preceding instructions on murder, any unlawful killing of a human being with malice aforethought is murder. If nothing further characterizes the killing, the murder is of the second degree. To constitute the higher offense of murder in the first degree, there must be wilfulness, deliberation and premeditation in addition to malice aforethought.
This portion of the instruction refers to one category of first degree murder — that which is "perpetrated by any kind of willful, deliberate and premeditated killing," I.C. § 18-4003(a).
Wilfulness means that there was manifested a clear intent to take life.
Deliberation and premeditation means done with reflection and conceived beforehand and not done upon a sudden heat of passion or other condition precluding the idea of deliberation.
Id. at 362, 690 P.2d at 297 (emphasis added). The Supreme Court held that the instructions properly defined malice and did not blur the distinction between first degree and second degree murder. The Court then continued "Malice, the intent to act feloniously, was properly distinguished from willfulness, the intent to take life, premeditation, conceived beforehand, and deliberation, done with reflection. The jury was properly instructed on the additional elements necessary to prove first degree murder, and thus there was no error." Id. at 363, 690 P.2d at 298. According to this discussion, intent to take a life is "properly distinguished from" the mental state required for malice and, hence, for second degree murder.
In State v. Lankford, 116 Idaho 860, 781 P.2d 197 (1989), the Supreme Court was called upon to consider whether, for purposes of felony murder, I.C. § 18-4003(d), the requirement of malice aforethought was satisfied by the fact that the killing occurred in the perpetration of a robbery. In addressing that issue, the Supreme Court quoted with apparent approval the following discussion from W. LAFAVE A. SCOTT, JR., CRIMINAL LAW § 67 at 528-30 and § 7 at 545-47 and 554 (1972):
Murder is a common law crime whose complete development required several centuries. Though murder is frequently defined as the unlawful killing of another "living human being" with "malice aforethought," in modern times the latter phrase does not even approximate its literal meaning. Hence it is preferable not to rely upon that misleading expression for an understanding of murder but rather to consider the various types of murder (typed according to the mental element) which the common law came to recognize and which exist today in most jurisdictions:
(1) intent-to-kill murder;
(2) intent-to-do-serious-bodily-injury murder;
(3) depraved-heart murder; and
(4) felony murder.
. . . .
At first the judges in fact did require for murder that the defendant actually have a previously thought-out (i.e., premeditated) intent to kill, though probably the spite, etc., was never actually necessary. Later (about 1550), English statutes made it murder to intentionally kill another by poisoning or by lying in wait; but these two situations would seem to be no more than typical cases involving a premeditated intent to kill, the almost literal meaning of "malice aforethought."
. . . .
Thereafter the judges started to invent some new types of murder where there existed no premeditated intent to kill. First of all, when the defendant intentionally killed his victim in a heat of passion aroused in him by the conduct of the victim — the issue being whether the defendant should be guilty of murder or of voluntary manslaughter — the judges decided that manslaughter required that the defendant's passion be reasonable.
. . . .
Secondly, when the defendant unintentionally killed another person in the commission of a felony — as where A set fire to B's house (arson) and accidentally B or a member of his family was burned to death — the judges held this to be murder ("felony murder"), though the defendant did not intend to kill at all and a fortiori did not premeditate a killing.
. . . .
The judges still continued to say that murder is committed by one who unlawfully kills another "with malice aforethought," now however adding the phrase "express or implied," the word "implied" covering the four situations just described wherein literally there exists no premeditated intent to kill. Modern courts and legislatures still frequently define murder in terms of "malice aforethought, express or implied," by which they mean the same types of murder as those which the English judges ultimately recognized, including felony murder, depraved-heart murder, intent-to-do-serious-bodily-injury murder and murder committed in an unreasonable passion.
Lankford, 116 Idaho at 866-67, 781 P.2d at 203-04. At the end of this lengthy quotation from LAFAVE SCOTT in the Lankford opinion there is a footnoted citation to I.C. § 18-4002, seemingly signaling that the Court viewed that statute to be of the type discussed in the quoted passage, which essentially codifies the common law standard for malice aforethought. So understood, Lankford conflicts with the Birrueta statement that second degree murder requires intent to kill. Instead, malice aforethought, express or implied, as used in I.C. § 18-4002 may embrace the state of mind for all types of murder ultimately recognized by English judges, including felony murder, depraved-heart murder, intent-to-do-serious-bodily-injury murder and murder committed in an unreasonable passion.
Our Supreme Court once again addressed the mens rea element of murder in State v. Dunlap, 125 Idaho 530, 873 P.2d 784 (1993), where the defendant was convicted of felony murder, which is murder in the first degree under I.C. § 18-4003(d). The defendant had been sentenced to death. He argued on appeal that when the district court found specific intent to cause the death of a human being as an aggravating factor for imposing the death penalty, the court had not properly differentiated between the premeditation that normally accompanies first degree murder and the specific intent to kill that is an aggravating circumstance. Dunlap argued that because "malice aforethought" is always a requirement for murder, the specific intent to kill referenced in I.C. § 19-2515(g)(7) (as the statute then existed) must mean something different, namely "heightened premeditation." In rejecting this argument the Court reasoned:
[T]his argument ignores the definition of malice.
Under I.C. § 18-4002, malice is express when there is manifested a deliberate intention to unlawfully take away a life, or implied, when the circumstances attending the killing show an abandoned and malignant heart. Under this interpretation, an abandoned and malignant heart killing is murder although there is no premeditated intent to kill. If the abandoned and malignant heart murder also involves the enumerated circumstances in I.C. § 18-4003(b), (c), (d), (e) or (f), such as the person murdered is a peace officer, § 18-4003(b), or the person who committed the murder was under a sentence for murder, § 18-4003(c), then that murder is classified as first degree murder under I.C. § 4003.
However, unless the State can show the additional element of specific intent to kill, i.e. a premeditated intent to kill, the circumstances of an abandoned and malignant heart murder will not satisfy I.C. § 19-2515(g)(7) and allow a judge to impose the death penalty. The specific intent to kill requirement of I.C. § 19-2515(g)(7) merely requires that the State prove that the first degree murder occurred with express malice. . . . Accordingly, the district court applied the correct standard finding specific intent to kill in this case.
Dunlap, 125 Idaho at 534, 873 P.2d at 788. (Citations omitted). This passage from Dunlap indicates that implied malice — an abandoned and malignant heart — is a variety of malice separate from intent to kill and will satisfy the mens rea element for murder.
The Supreme Court decisions in Aragon, Lankford, and Dunlap, are inconsistent with Birrueta's statement that "intent to kill is an element of murder in the second degree." We also note that no subsequent decision of the Supreme Court has cited Birrueta as authority concerning the mental element for murder. Consequently, we conclude that the mental state of malice aforethought that will support a conviction for second degree murder encompasses, at the least, an abandoned and malignant heart (i.e., depraved heart) in addition to an actual intent to kill.
It must be acknowledged that in State v. Atwood, 105 Idaho 315, 318, 669 P.2d 204, 207 (Ct.App. 1983), this Court stated in dicta that "the elements of the crime of murder in the second degree are: (a) an unlawful killing, (b) the intent to kill, and (c) malice." That statement was made without citation to authority, but because Atwood was decided after Birrueta, the Atwood Court may have been relying upon Birrueta. In view of the post-Birrueta expressions of the Supreme Court discussed above, however, we no longer view this statement from Atwood to be accurate. Likewise, subsequent decisions which cite Atwood for the proposition that intent to kill is an element of second degree murder, Fenstermaker v. State, 128 Idaho 285, 291, 912 P.2d 653, 659 (Ct.App. 1995); and Safeco Ins. Co. of America v. Yon, 118 Idaho 367, 369, 796 P.2d 1040, 1042 (Ct.App. 1990), are disapproved to the extent that they are inconsistent with our opinion today.
Because intent to kill the victim is not an essential element of second degree murder, the absence of evidence of intent to kill does not preclude Porter's prosecution for that offense. Therefore, we must vacate the trial court's order reducing the charge against Porter from second degree murder to voluntary manslaughter.
B. Intent as an Element of Voluntary Manslaughter
Although we have concluded that Porter may be prosecuted for second degree murder, if Porter goes to trial on remand, it is likely that the court will be asked to instruct the jury on the lesser offense of voluntary manslaughter. Therefore, for guidance on remand, we will address the issue raised by Porter on his cross-appeal — whether intent to kill is an element of voluntary manslaughter.
Voluntary manslaughter is defined in I.C. § 18-4006 as follows:
Manslaughter is the unlawful killing of a human being . . . without malice. It is of three (3) kinds:
1. Voluntary — upon a sudden quarrel or heat of passion.
. . . .
Like the statutes discussed above defining murder and malice, this statute, with slight amendments that are not pertinent to our analysis here, dates back to Idaho's territorial days; and like the murder statutes, it must be examined in its historical and common law context.
At common law, voluntary manslaughter occurred when a killing was accompanied by malice, the mental state for murder, but this mental state was mitigated or negated by sufficient provocation, a sudden quarrel, or heat of passion. As stated in 2 WHARTON'S CRIMINAL LAW § 155-56 at 346-49 (15th ed. 1994):
Voluntary manslaughter is an intentional killing in the heat of passion as a result of severe provocation. As a concession to human frailty, a killing, which would otherwise constitute murder, is mitigated to voluntary manslaughter.
Although, given severe provocation, the impairment of a defendant's capacity for self-control may be substantial, the offense is only mitigated, not excused. . . .
For the purpose of voluntary manslaughter (or its equivalent), some states, such as Connecticut and Minnesota, require that defendant act with the intent to kill. However, at common law . . . since the homicide must be committed under circumstances which would otherwise be murder, defendant may act with the intent to kill or with any mental state which amounts to "malice"; the malice is negated by the provocation and the offense is mitigated from murder to voluntary manslaughter. . . .
The passion aroused by the provocation must be sufficiently extreme to dethrone reason and prevent cool reflection. The law theorizes that malice and passion of this degree cannot exist at the same time; therefore, the act of killing cannot be regarded as the product of malice.
(Italics added.) See also 2 BISHOP ON CRIMINAL LAW § 697 at 528-29 (9th ed. 1923) ("`Passion' and `malice' are deemed to be inconsistent; so that if an act proceeds from the one, it cannot proceed from the other. . . . The same act which would be murder if prompted by malice is manslaughter when it springs from passion, because then there is no `malice aforethought.'").
Other jurisdictions with voluntary manslaughter statutes that are identical to Idaho's in all pertinent respects have interpreted the statutes as codifying the common law. These authorities include federal courts applying 18 U.S.C. § 1112(a). In United States v. Browner, 889 F.2d 549, 553 (5th Cir. 1989), the Fifth Circuit concluded that the federal statute codified the common law offense of manslaughter and that "voluntary manslaughter . . . requires proof . . . of a mental state that would constitute malice, but for the fact that the killing was committed in adequately provoked heat of passion or provocation." Consistent with Browner's assessment, the Ninth Circuit Court of Appeals in United States v. Paul, 37 F.3d 496 (9th Cir. 1994) rendered the following analysis:
18 U.S.C. § 1112(a) provides:
Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
1. Voluntary — upon a sudden quarrel or heat of passion.
. . . .
If the defendant killed with the mental state required for murder (intent to kill or recklessness with extreme disregard for human life), but the killing occurred in the "heat of passion" caused by adequate provocation, then the defendant is guilty of voluntary manslaughter. The finding of heat of passion and adequate provocation negates the malice that would otherwise attach. By contrast, "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 meet the traditional malice requirements." Thus, involuntary manslaughter is an unintentional killing that "evinces a wanton or reckless disregard for human life but not of the extreme nature that will support a finding of malice."
Id. at 499 (internal quotation marks and citations omitted). In a footnote, the court added, "While most voluntary manslaughter cases involve intent to kill, it is possible that a defendant who killed unintentionally but recklessly with an extreme disregard for human life may have acted in the heat of passion with adequate provocation. . . . In such a case, the defendant would be guilty of voluntary manslaughter, not murder." Id., n. 1. See also United States v. Roston, 986 F.2d 1287, 1291 (9th Cir. 1993) (heat of passion "negate[s] the presence of malice").
The Ninth Circuit's Model Criminal Jury Instruction No. 8.91 instructs on voluntary manslaughter as follows:
The manslaughter statute in California, Cal. Penal Code § 192, also mirrors the relevant language in ours. In interpreting that statute, the California Supreme Court recently held that intent to kill is not required for voluntary manslaughter:
Our conclusion that voluntary manslaughter does not require an intent to kill is consistent with the common law as well as the statutory law in most states. A prominent criminal law treatise explains: "[A]t common law and by statute in most states, since the homicide must be committed under circumstances which would otherwise be murder, defendant may act with the intent to kill or with any mental state which amounts to `malice'; the malice is negated by the provocation and the offense is mitigated from murder to voluntary manslaughter." (2 WHARTON'S CRIMINAL LAW (15th ed. 1994) § 155, pp. 347-348.) Other criminal law scholars share that view: "It is not necessary that there should be a specific intent to kill to constitute voluntary manslaughter. Where the killing is done with a deadly weapon, if its use is intentional, and if the defendant knew or had reason to know that to use it as he did would endanger the life of [the] deceased or another, and acted recklessly of such safety, an intent to injure him may be inferred. Where one purposely assaults another with a dangerous weapon, in a way naturally to cause death, and death results, the killing is voluntary." (1 WARREN ON HOMICIDE (1938) ELEMENTS OF VOLUNTARY MANSLAUGHTER, § 85, pp. 418-419.) "Most killings which constitute voluntary manslaughter are of the intent-to-kill sort. . . . But if [the killer] in the [heat of] passion . . . should intend instead to do his tormentor serious bodily injury short of death, or if he should, without intending to kill him, endanger his life by very reckless (depraved heart) conduct, the resulting death ought equally to be voluntary manslaughter. . . . [T]he great majority of modern statutes . . . take this broad view." (2 LAFAVE, SUBSTANTIVE CRIMINAL LAW (1986) § 7.10, p. 253.)
The defendant is charged in [Count ____ of] the indictment with voluntary manslaughter in violation of Section 1112 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant unlawfully killed [victim];
Second, while in a sudden quarrel or heat of passion, caused by adequate provocation:
a) the defendant intentionally killed [victim]; or
b) the defendant killed [victim] recklessly with extreme disregard for human life; and
Third, the killing occurred at [location stated in indictment]. Heat of passion may be provoked by fear, rage, anger or terror.
Provocation, in order to be adequate, must be such as might arouse a reasonable and ordinary person to kill someone.
People v. Lasko, 999 P.2d 666, 672 (Cal. 2000).
The California court also acknowledged that some of its prior decisions appeared to hold that voluntary manslaughter required intent to kill, but disapproved those cases, stating that they made only "fleeting observations" to that effect. Lasko, 999 P.2d at 671-72.
Because the Idaho Territory borrowed its criminal statutes, including the manslaughter statute, from California, the interpretation placed upon the statute by early California decisions is particularly significant. When legislation is adopted from another jurisdiction, this Court presumes that it is adopted with the "prior construction placed upon it by the courts of such other jurisdiction." Hoskins v. Howard, 132 Idaho 311, 315, 971 P.2d 1135, 1139 (1998) (quoting Nixon v. Triber, 100 Idaho 198, 200, 595 P.2d 1093, 1095 (1979)). See also People v. Ah Choy, 1 Idaho 317, 319 (1870). Before Idaho's enactment of the same statutory scheme, the California Supreme Court held in People v. Freel, 48 Cal. 436, 437 (1874), that it was erroneous for the trial court to have instructed a jury that "the difference between murder and manslaughter is, that in manslaughter there is no intention whatever either to kill or to do bodily harm." The Freel decision explained:
The manslaughter statute adopted in 1887 by the Territorial Legislature was identical to California's manslaughter statute enacted in 1872. Each provided:
Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds:
1. Voluntary — upon a sudden quarrel or heat of passion;
2. Involuntary — in the commission of an unlawful act not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.
IDAHO TERR. REV. STAT. § 6565 (1887); Historical and Statutory Notes to WEST'S ANNOTATED CALIFORNIA CODES, Penal Code § 192 (1999).
Whether the homicide amounts to murder or to manslaughter merely, does not depend upon the presence or absence of the intent to kill. In either case there may be a present intention to kill at the moment of the commission of the act. But when the mortal blow is struck in the heat of passion, excited by a quarrel, sudden, and of sufficient violence to amount to adequate provocation, the law, out of forbearance for the weakness of human nature, will disregard the actual intent and will reduce the offense to manslaughter. In such case, although the intent to kill exists, it is not that deliberate and malicious intent which is an essential element in the crime of murder.
Id.
We conclude that when the Idaho Territorial Legislature adopted the manslaughter statute, the statute was understood to have the same meaning as that placed upon it by the California Supreme Court, which is consistent with the common law formulation for manslaughter. Thus, in defining voluntary manslaughter as "the unlawful killing of a human being, without malice, upon a sudden quarrel or heat of passion," the Territorial Legislature intended that a killing would constitute voluntary manslaughter when the perpetrator acted with a mental state of malice, as for murder, but the malice was negated or mitigated by sufficient provocation, a sudden quarrel or other circumstances creating heat of passion. That is, voluntary manslaughter requires a mental state which, in the absence of adequately provoked passion or sudden quarrel, would have been malice. We have held above, in our discussion of the mental element for second degree murder, that malice is not limited to intent to take a life but encompasses other culpable mental states. Therefore, voluntary manslaughter may be committed with or without intent to kill.
We recognize that our decision today conflicts with previous decisions of this Court holding, or stating in dicta, that intent to kill is an element of voluntary manslaughter. See State v. Ransom, 137 Idaho 560, 566, 50 P.3d 1055, 1061 (Ct.App. 2002); State v. Scroggie, 110 Idaho 103, 111, 714 P.2d 72, 80 (Ct.App. 1986), and State v. Vasquez, 107 Idaho 1052, 1053-54, 695 P.2d 437, 438-39 (Ct.App. 1985). This line of authority can be traced back to Atwood, 105 Idaho 315, 669 P.2d 204, which, as discussed above, also spawned errant authority concerning the mental state for murder. The statement in Atwood, that "the basic distinction between voluntary and involuntary manslaughter is that voluntary manslaughter requires an intent to kill," relied upon Justice Bistline's dissent in State v. Padilla, 101 Idaho 713, 723, 620 P.2d 286, 296 (1980). In that opinion, Justice Bistline stated, "Intent to kill (qualified by the lack of malice and the presence of a sudden quarrel or the heat of passion) is an essential element of voluntary manslaughter; involuntary manslaughter is not concerned with intent at all," and for that proposition cited 40 C.J.S. Homicide § 40 (1944). Atwood's reliance on the Padilla dissent was misplaced, for the dissent did not represent a holding of the Supreme Court, and the C.J.S. commentary to which Justice Bistline referred was a general statement not construing Idaho's manslaughter statute. Moreover, a more recent edition of that same source, 40 C.J.S. Homicide § 74 (1991), informs us that, "Voluntary manslaughter has also been defined as hot-blooded, unintentional killing in response to adequate provocation without time for the passion of the reasonable man to subside." Although this Court has stated unequivocally on more than one occasion that voluntary manslaughter requires intent to kill, in none of those cases were we called upon, as we are today, to consider a direct dispute between the State and the defense as to whether voluntary manslaughter could be committed without intent to kill. Having now thoroughly examined that issue, taking into account the historical context when the statute was adopted, its common law roots, and the interpretation of nearly identical statutes by other modern courts, we conclude that statements in Atwood and its progeny concerning the mental element for voluntary manslaughter are incorrect and must be overruled.
This Court also approved an instruction on voluntary manslaughter requiring intent to kill in Yon v. State, 124 Idaho 821, 824-25, 864 P.2d 659, 662-63 (Ct.App. 1993), but the question whether intent to kill is required for voluntary manslaughter was not an issue in that case.
III. CONCLUSION
Neither second degree murder nor voluntary manslaughter, as defined in Idaho statutes, requires that the defendant possess an intent to kill the victim. Rather, each requires a mental state of "malice" which includes, at the least, a depraved heart mental state in addition to intent to kill. For voluntary manslaughter, that malice is negated by passion with sufficient provocation. Therefore, the district court erred in reducing the charge of second degree murder to voluntary manslaughter, but did not err in holding that voluntary manslaughter may be committed without intent to kill. We reverse the district court's order reducing the charge and remand with instructions to reinstate the charge of murder in the second degree.
Chief Judge PERRY and Judge GUTIERREZ CONCUR.