EVANS v. STATE

MOYLAN, J., delivered the opinion of the Court.

It was but a matter of time before the common law's crazy quilt of murder and manslaughter — eight hundred years in the making and intricately interweaving Stuart modification of Tudor substance with Victorian adaptation of Georgian procedure — would come under the cold glare of latter-day due process. That time came on June 9, 1975, with the Supreme Court's decision in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The conviction of Edward Evans, appellant, by a Baltimore City jury for murder in the second degree gives us occasion to assess the impact of Mullaney v. Wilbur on Maryland's version of Anglo-America's ancient handiwork on felonious homicide. The impact is significant.

Indeed, the implications are so extensive that a shorthand summary of them is in order before launching into a more detailed analysis.

Retroactivity in a Nutshell

Prospectivity in a Nutshell

Mullaney v. Wilbur will not render unconstitutional:

Mullaney v. Wilbur will-render unconstitutional:

Mullaney v. Wilbur will have a collateral influence beyond its direct impact:

The Present Case

The facts necessary to our judgment here are few. At some time between 2 and 3 p.m. on June 20, 1974, the appellant struck Alonzo Counts with a knife several times. The victim bled to death shortly thereafter, the fatal blow having been a stab to the neck. The homicidal agency of the appellant is not in dispute. Testimony by State's witnesses and defense witnesses alike, including testimony from the appellant himself, established a pattern of angry and violent confrontations between the appellant and the victim during the hour immediately preceding the homicide, such confrontations broken by periods when the two were out of contact with one another. There was evidence from which the jury could have concluded that the appellant struck the victim without justification, excuse or legally adequate provocation. Just as surely, there was evidence from which the jury could have concluded that the appellant struck in necessary self-defense or that he struck in hot blood in the course of mutual combat. It is sufficient for present purposes to note that the questions of excuse (the self-defense in this case) and mitigation (by way of the hot blood of mutual combat) were substantially present as issues in the case. Correct instructions were, therefore, in order both to define those issues and to allocate the burden of persuasion as to them by the appropriate standard of proof.

With respect to the allocation of the burden of persuasion generally as to these issues, the trial court's instruction to the jury was, in pertinent part:

At another point in the instruction, the court defined the element of malice necessary to a finding of murder and also referred to the presumption of malice:

The immediately following instruction mingled the self-defense, which might render a homicide excusable, with the provocation, which might limit it to manslaughter. It seemed to postulate that all killing not in self-defense is ipso facto without adequate provocation and, therefore, malicious:

In going on to the subject of self-defense, the trial judge seemed clearly to put the burden of establishing its necessary elements upon the defendant:

In ultimately allocating the burden of persuasion on the question of self-defense, the trial judge accurately recited the self-contradictory and mutually exclusive statements which have chronically plagued the common law of Maryland on this elusive and confused subject. The burden of proving all elements of the crime seems to be upon the State, but the burden of negating one of those elements seems simultaneously to be upon the defense. The quandary is unresolved as to what to do if the defense has offered enough persuasion to throw doubt upon the State's case but not enough persuasion to establish self-defense affirmatively by a preponderance of the evidence:

The Preliminary Hurdle of Plain Error

Before considering the effect of Mullaney v. Wilbur upon the instructions in this case specifically and upon the common law of Maryland with respect to felonious homicide generally, one preliminary hurdle must be overcome: The appellant lodged no objection to the instructions given the jury in this case. Although ordinarily the failure to object to an instruction will preclude review on appeal, Parker v. State, 4 Md.App. 62, 67, 241 A.2d 185; Hicks v. State, 3 Md.App. 225, 238 A.2d 577; Maryland Rule 756 g, certain circumstances will cause this Court to exercise its discretion and to notice "plain error". These exceptional circumstances were incisively analyzed and lucidly set out by Judge Powers in Brown v. State, 14 Md.App. 415, 422, 287 A.2d 62:

See also Bieber v. State, 8 Md.App. 522, 533-534, 261 A.2d 202. This is such a case.

For reasons to be hereinafter discussed, we hold that there were errors in the instructions. They were errors of commission; they were irremediable; they were plain; they were material to the rights of the appellant. We note moreover as we exercise our discretion in this regard, although the point is not of pivotal significance, that the appellant and his attorney could not have anticipated Mullaney v. Wilbur and may have been persuaded that the instructions given accurately reflected the law of Maryland. More significantly, we exercise our discretion in noticing this particular "plain error" because of the legion of cases already beginning to surface in the wake of Mullaney v. Wilbur, and because of the inevitably greater legions yet to follow. We deem a prompt review of these instructions, and those like them, "necessary to serve the ends of fundamental fairness and substantial justice" even beyond the confines of this particular case. This case is, in short, an appropriate and necessary vehicle.

I. The Ghost of Homicide Past

A. The Retroactivity of Mullaney v. Wilbur

The decision in Mullaney v. Wilbur, which decision governs our holding in this case, was handed down by the Supreme Court on June 9, 1975. The appellant's trial was on November 12, 13 and 14, 1974, some eight months earlier. The immediate question arises as to whether Mullaney v. Wilbur will be applied retroactively and, if so, to what extent. The answer is that it must be given fully retroactive effect.

In this regard, we conclude that Mullaney v. Wilbur was but an application to a murder conviction of the broad constitutional principle earlier laid down in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368, 375 (1970):

At the very outset of the Mullaney v. Wilbur opinion, the issue before the Court was posed explicitly in terms of compliance with the broad mandate of Winship:

The consistent and, indeed, exclusive theme running throughout the entire Mullaney v. Wilbur opinion is the applicability to homicide law of Winship's requirement that the State prove every element of a crime beyond a reasonable doubt.2 Any doubt as to the retroactive effect of Winship was resolved in Ivan V. v. City of New York, 407 U.S. 203, 204-205, 92 S.Ct. 1951, 32 L.Ed.2d 659, 661-662 (1972):

It follows, therefore, ineluctably that Mullaney v. Wilbur is also "to be given complete retroactive effect." The fully retroactive operation of Mullaney v. Wilbur, however, does not, ipso facto, forebode another Schowgurow v. State,3 240 Md. 121, 213 A.2d 475, destined to empty the prisons of all inmates serving terms for any form of felonious homicide. We will now look to the limitations upon that retroactivity, not limitations on the ability of Mullaney v. Wilbur to reach into the distant past but rather limitations upon the classes of convicted felons eligible for its coverage.

The full ramifications of Mullaney v. Wilbur will be discussed in greater detail hereinafter in dealing with the present and future impact of the decision on Maryland law. For the moment, it is enough to set out, by way of shorthand summary, that it dooms as unconstitutional any procedural device which 1) imposes upon a defendant a burden of proving, by any standard, his innocence as to any element of a crime or 2) relieves the State of its burden of ultimate persuasion beyond a reasonable doubt as to any issue fairly in the case.

B. Erroneous Allocation of the Burden of Persuasion as to Mitigation (Mitigation Being an Issue in the Case) Where the Conviction is Only for Manslaughter

The common error in this regard would be, in its lesser form, an instruction to the jury to the effect that, under certain circumstances, felonious homicide is presumed to be with malice and is, therefore, presumed to be murder in the second degree (thereby relieving the State, where mitigation is a legitimate issue in the case, of proving the absence of mitigation beyond a reasonable doubt); and, in its slightly more aggravated form, an instruction to the jury going further and placing upon the defendant the burden of proving (by any standard) such mitigation as would lower the felonious homicide to the manslaughter level. Notwithstanding such error, where the verdict is one of manslaughter only, the defendant has suffered no cognizable harm — any error is manifestly harmless, at the constitutional level, and non-prejudicial, at the non-constitutional level.

Where the issue which a defendant has fairly generated (see Part IIH infra) is whether sufficient mitigation existed to lower the mens rea to the non-malicious, though still felonious, level of manslaughter, the verdict has cured the error. The defendant has received everything for which he was contending and to which he may arguably have been entitled. He was, to be sure, put to an unfair burden in lowering the conviction to the manslaughter level, but he nonetheless shouldered his burden successfully. The law will not countenance the reversal of a manslaughter conviction, which the defendant agrees he deserved, merely so that upon retrial he may achieve the same end more effortlessly.

In concluding that the verdict as to a lesser charge cured any error in instructions as to a greater charge, we are not here dealing with the question of whether the erroneous submission of greater charges to the jury, where the record reveals that judgments of acquittal should have been granted as to them, might or might not constitute error by facilitating a compromise verdict on the lesser charge. We intimate nothing in that regard.

We are dealing here with a question of a different order. It is the broad consensus of authority, and we concur therein, that a mere error in instructions as to a greater degree of a crime will be deemed immaterial and non-prejudicial where the verdict is brought in for a lesser degree of the crime.

In this regard, we find highly persuasive the statement of law contained at 40 Am.Jur.2d Homicide, § 528, "Effect of erroneous instructions — As to higher grade or degree, where defendant convicted of lower," p. 784:

And see 24B C.J.S. Criminal Law § 1922(15)c, "Cure of Error by Verdict or Judgment," pp. 197-200; State v. Carabajal, 26 N.M. 384, 193 P. 406; State v. Brookshire (Mo.), 368 S.W.2d 373; Ruffin v. State (Del.), 123 A.2d 461; Lash v. State, 97 Ga.App. 622, 103 S.E.2d 653; France v. Commonwealth (Ky.), 323 S.W.2d 868; Sykes v. State (Tex.Cr.App.), 399 S.W.2d 349; State v. Shipley, 259 Iowa 952, 146 N.W.2d 266; State v. Jiminez, 93 Idaho 140, 456 P.2d 784; State v. Lee, 255 S.C. 309, 178 S.E.2d 652; Fulton v. State, 127 Ga.App. 711, 194 S.E.2d 615; People v. Strickland, 114 Cal.Rptr. 632, 523 P.2d 672; King v. State (Miss.), 315 So.2d 925. See also 4 Warren on Homicide, § 380, "Effect of Conviction of Manslaughter," pp. 643-646.

As to the highly speculative theory that an erroneous instruction by way of lessening the burden of proving some higher grade of an offense might in some vague and indefinite way have facilitated a compromise on a lesser grade of the offense, on which a conviction was fully supported by the evidence, we agree with the Supreme Court of Pennsylvania in Commonwealth v. Kaminsky, 434 Pa. 38, 252 A.2d 695. In that case, the Pennsylvania high court agreed that an instruction placing the burden upon a defendant to reduce the crime from murder to manslaughter was in error. The conviction in that case was, however, only for manslaughter. In rejecting the claim that the error may have facilitated a prejudicial compromise, the court said, at 252 A.2d 696:

In this regard, see also Walker v. People (Colo.), 248 P.2d 287, 299.

The curative effect of the verdict upon the erroneous allocation of the burden of persuasion (either by way of relieving the State of its burden or affirmatively placing the burden upon the defendant) would not be dissimilar if the verdict had been rendered in a court trial rather than in a jury trial. If, for example, the court, in gratuitously articulating its mental processes, had indicated an erroneous understanding of the allocation of the burden but had nonetheless convicted the defendant only of the lesser crime, the only resultant harm would have been that the defendant worked a little harder than necessary in obtaining the end he both sought and deserved — a harm not requiring a reversal.

C. Erroneous Allocation of the Burden of Persuasion as to Mitigation (Mitigation Being an Issue in the Case) Where the Conviction is for Murder in the First Degree

By the same token, any error in instructing as to the allocation of the burden of persuasion on the subject of mitigation (such mitigation, for purposes of holding the homicidal mens rea down to the manslaughter level, being fairly an issue in the case) will have been cured by a verdict of murder in the first degree.4 The evil aimed at by Mullaney v. Wilbur, where the issue is manslaughter versus murder, is that a presumption of malice unfairly relieves the State of the burden of proving non-mitigation (mitigation being fairly an issue in the case). Where the ultimate verdict is that of murder in the second degree, the presumption may, therefore, have been pivotal. Where, on the other hand, the verdict is murder in the first degree, the State will have proved every element, including the negating of hot blood, beyond a reasonable doubt and due process will not have been offended.

It is the well-settled law of Maryland that to prove murder in the first degree, the State must demonstrate beyond a reasonable doubt "that the killing was wilful, deliberate, and premeditated." Wilson v. State, 261 Md. 551, 564, 276 A.2d 214. Our equally well-settled definitions of the terms wilfulness, deliberation and premeditation, all of which elements the State must prove beyond a reasonable doubt, make it clear that that act of proof will, ipso facto, have negated beyond a reasonable doubt any possibility that the killing was in "hot blood" — in sudden response to provocation where the passions had not yet had an opportunity to cool and, therefore, to allow a deliberate judgment. These elements were well defined in Hyde v. State, 228 Md. 209, 215-216, 179 A.2d 421:

Cited with approval in Wilson v. State, supra, at 261 Md. 564-565.

Chisley v. State, 202 Md. 87, 106, 95 A.2d 577, adopts the definitions of the terms as set out in Hochheimer:

See also Gladden v. State, 273 Md. 383, 330 A.2d 176, 178-179; Cummings v. State, 223 Md. 606, 611, 165 A.2d 886; Brown v. State, 220 Md. 29, 38, 150 A.2d 895; Faulcon v. State, 211 Md. 249, 257-258, 126 A.2d 858; Brooks v. State, 3 Md.App. 485, 511-512, 240 A.2d 114; Leyva v. State, 2 Md.App. 120, 123, 233 A.2d 498.

Even granted a legally adequate provocation in the first place and the initial response of "hot blood" thereto, the establishment of the deliberation and premeditation necessary to constitute murder in the first degree is, by definition, the establishment of a "cooling time" for the hot blood. That factor is well defined at 40 Am.Jur.2d Homicide § 68, "Cooling time," pp. 360-361:

The State, in proving wilfulness, deliberation and premeditation5 beyond a reasonable doubt, will not have relied upon a mere presumption of malice but will of necessity have proved the element of malice (meaning, within the context of this analysis, an intentional killing absent the mitigating circumstance of a hot-blooded response to a legally adequate provocation). "Malice and heat of passion cannot coexist." 40 Am.Jur.2d Homicide § 56, p. 350, citing Vaughan v. State, 201 Ala. 472, 78 So. 378, and White v. State, 44 Tex. Crim. 346, 72 S.W. 173. A fortiori, proof beyond a reasonable doubt of premeditated and deliberated malice will negate heat of passion. The requirement of In re Winship and Mullaney v. Wilbur that the State prove beyond a reasonable doubt every necessary element of the offense will have been fully satisfied.

In denying a writ of habeas corpus in the case of Wilkins v. Maryland, 402 F.Supp. 76, (filed on October 15, 1975), Judge C. Stanley Blair in the United States District Court for Maryland employed a similar analysis. Wilkins claimed that upon his trial in a Maryland criminal court he had been denied due process under Winship and Mullaney v. Wilbur when the jury was instructed that it could presume an unlawful killing to have been perpetrated with malice. Wilkins was convicted of murder in the first degree. Judge Blair ruled that the jury instructions, even if erroneous, were harmless because the first-degree murder conviction had cured any arguable error:

See also 4 Warren on Homicide, § 380, "Effect of Conviction of Murder in First Degree, pp. 639-641.

Nor will Mullaney v. Wilbur be applicable retroactively to any conviction of murder in the first degree rendered by a judge sitting without a jury (where mitigation is fairly an issue in the case). Even if the judge,6 in the course of articulating his verdict, has gratuitously and erroneously mentioned the presumption of malice, his ultimate finding of the elements of wilfulness, deliberation and premeditation beyond a reasonable doubt will have cured, by making immaterial, any error of misunderstanding in that regard.

D. Erroneous Allocation of the Burden of Persuasion as to Mitigation (Mitigation Being an Issue in the Case) Where the Conviction is for Murder in the Second Degree.

Where, on the other hand, an erroneous instruction has been given to the jury either to the simple effect that an intentional killing gives rise to a presumption of malice (thereby relieving the State of its burden of negating mitigation, where mitigation is fairly an issue in the case) or, in slightly more aggravated form, to the effect that the burden is upon the defendant to prove such mitigation as would lower murder to manslaughter, and the ultimate verdict is for murder in the second degree,7 Mullaney v. Wilbur will have retroactive application. Here the constitutional error is manifest, and the requirement of Winship that the State prove each and every element of its case beyond a reasonable doubt has not been met.

By the same token, a verdict rendered in a court trial of murder in the second degree will bear scrutiny under Mullaney v. Wilbur if the judge, in the course of rendering his decision, indicates that he relied upon the now unconstitutional presumption of malice or that he in any way placed upon the defendant the burden of proving such mitigation as would reduce murder to manslaughter (mitigation fairly being an issue in the case).

E. Erroneous Allocation of the Burden of Persuasion as to Justification or Excuse (Either Being An Issue in the Case) Where the Conviction is for Felonious Homicide in Any Degree

The erroneous jury instructions (now that we have the benefit of hindsight per Mullaney v. Wilbur) strewn throughout our Maryland experience have sometimes taken the form. "In the absence of justification or excuse, all intentional homicide will be presumed to have been with malice," or its equivalent, "All intentional and unlawful [thereby excluding justifiable and excusable] homicide will be presumed to be with malice." In these qualified forms, the error has been limited to the now unconstitutional presumption of non-mitigation.

Frequently, however, the erroneous instructions were not even thus partially qualified and took the broader form, "All intentional homicide will be presumed to be with malice." In this totally unqualified form, the homicide is unconstitutionally presumed to be non-justified and non-excused as well as non-mitigated.

If a fair reading of the instructions indicates that the "presumption of malice," in that broader and unqualified form, operated to relieve the State of its burden of ultimate persuasion on the issue of non-justification and/or non-excuse (where either is a fair issue in the case), Mullaney v. Wilbur will require a reversal regardless of the degree of felonious homicide on which the conviction was had. Unlike the situation dealt with where the only issue in the case affected by the presumption was mitigation and the only advantage the defendant was denied was the possible lowering of murder in the second degree to manslaughter, the harm on the issues of presumed non-justification and presumed non-excuse operates across the entire spectrum of culpability. If the defendant had had the benefit of a fair allocation of the burden of persuasion on these issues, he might well have been found not guilty totally and not simply guilty to a lesser degree. Self-defense, for example, would relieve one of guilt for a premeditated and deliberated killing as well as for a killing in hot blood.8

Similarly, a verdict rendered in a court trial of guilt for any degree of felonious homicide will bear scrutiny under Mullaney v. Wilbur if the judge, in the course of rendering his decision, indicated that he relied in any way upon the now unconstitutional presumption of malice or that he in any way placed upon the defendant the burden of proving such justification or such excuse as would render him not guilty (justification or excuse fairly being an issue in the case).

F. Erroneous Allocation of the Burden of Persuasion as to Justification, Excuse or Mitigation Where None Is a Fair Issue in the Case

As boiler-plate instructions have been handed down from judicial generation to judicial generation and solemnly intoned whether they have any bearing on the case then at bar or not,9 there have been frequent occasions when erroneous jury instructions have been given but where the error has no conceivable relevance to any issue in the case.

As will be discussed more fully in Part IIH infra, before it can be said that there is in a case a legitimate jury issue on the question of justification, excuse or mitigation, there must be evidence sufficient to generate the issue. That evidence may be, but need not be produced by the defendant. It may be found in the State's own evidence. But whatever its source, unless there is evidence sufficient to generate a fair jury question (or to generate the issue in like manner in a court trial), there is no requirement that instructions in these regards even be given. Indeed, they are inappropriate.

Instructive in this regard is 40 Am.Jur.2d Homicide § 485, "Confining instructions to evidence," pp. 737-738:

And see Braunie v. State, 105 Neb. 355, 180 N.W. 567.

The application of this general principle is clear when it comes to the specific issues of excuse (by way of an accidental killing), justification (by way of self-defense) and mitigation (by way of hot-blooded response to legally adequate provocation). "[I]f no testimony is introduced which tends to show that the killing was accidental, the court is justified in refusing to instruct the jury upon that hypothesis." 40 Am.Jur.2d Homicide § 514, "Defenses; Matters of Justification, Excuse, or Mitigation; Generally," p. 766; Lewis v. State, 96 Ala. 6, 11 So. 259. "Obviously, requested instructions on the law of self-defense should be refused if there is no evidence whatever tending to show that the defendant acted in self-defense...." 40 Am.Jur.2d Homicide § 519, "Self-defense and defense of others," p. 774; Hardy v. People, 133 Colo. 201, 292; P.2d 973; Jenkins v. State (Del. Sup.), 230 A.2d 262; Combs v. Commonwealth, 196 Ky. 804, 246 S.W. 132; State v. Morse, 35 S.D. 18, 150 N. W. 293; Zunago v. State, 63 Tex. Crim. 58, 138 S.W. 713; State v. Brooks (Mont.), 436 P.2d 91; State v. Anderson, 207 Or. 675, 298 P.2d 195. "[A]ccording to the general rule, the trial judge is under no duty to instruct the jury as to the various lower grades or degrees unless there is some direct, circumstantial, or inferential evidence tending to reduce the crime to one of the lower grades or degrees." 40 Am.Jur.2d Homicide § 525, "As to Grades and Degrees of Homicide; Generally," p. 782. "[I]f the undisputed facts show that the defendant did the killing, and there is no evidence of sufficient provocation by the deceased or of other mitigating or extenuating circumstances, which would reduce the crime to manslaughter, the court is not required to instruct upon manslaughter." 40 Am.Jur.2d Homicide § 530, "Failure to instruct as to lower grade or degree, where defendant is convicted of higher," p. 786; Belton v. U.S. (D.C. Cir.), 382 F.2d 150; Thomas v. State, 126 Ala. 4, 28 So. 591. See also 4 Warren on Homicide, § 380, "Unnecessary and Inapplicable Instructions," p. 630.

Maryland has consistently held that instructions need not and should not be given on particular defenses unless and until there is evidence sufficient to generate a legitimate jury issue with respect to a particular defense. This Court has held that no instruction need be given on the degree of intoxication necessary to vitiate specific criminal intent and to lower homicidal mens rea from first degree to second degree, where the evidence, by whomsoever produced, is not legally sufficient to generate a legitimate jury issue in that regard. Bateman v. State, 10 Md.App. 630, 272 A.2d 64; Mock v. State, 2 Md.App. 771, 237 A.2d 811. We have held that an instruction should not be given on the subject of insanity where the evidence, by whomsoever produced, is not legally sufficient to generate a legitimate jury issue in that regard. Bremer v. State, 18 Md.App. 291, 315-316, 307 A.2d 503; Dennis v. State, 13 Md.App. 564, 569, 284 A.2d 256; Strawderman v. State, 4 Md.App. 689, 698, 244 A.2d 888. We have held that an instruction should not be given on the subject of self-defense where the evidence, by whomsoever produced, is not legally sufficient to generate a legitimate jury issue in that regard. Street v. State, 26 Md.App. 336, 338-341, 338 A.2d 72. We have held that an instruction should not be given on the defense of entrapment where the evidence, by whomsoever produced, is not legally sufficient to generate a legitimate jury issue in that regard. Fisher v. State, 28 Md.App. 243, 345 A.2d 110.

When a defendant has then no right even to take an issue before the jury, any instruction on such an issue (erroneous or not) is more than he is entitled to. When any consideration of an issue by the fact finder (court or jury) would properly be totally foreclosed, the defendant cannot complain that the issue was submitted under an unduly heavy burden upon him, since he has, even in that event, received more than he deserved. To carry an undue burden of persuasion may be a critical handicap to one legitimately in a race; it is no handicap at all when one is not entitled to run in the race.

The general law is well stated at 5 Am.Jur.2d Appeal and Error § 811, "Facts in issue; materiality," p. 253: "[A]ny errors in instructions which are expressly confined to issues ... which are immaterial, or on facts not in issue... are generally harmless." In Street v. State, supra, the jury was instructed that the defendant had the burden of proving self-defense by a preponderance of the evidence. The Court went further and actually directed a verdict against the defendant on this subject. With respect to the innocuousness of even an erroneous instruction on an issue not fairly in the case, we said, at 26 Md.App. 340-341:

The Court of Appeals dealt with a similar situation in O'Connor v. State, 234 Md. 459, 199 A.2d 807. A jury had there been charged that the ultimate burden of persuasion was upon a defendant to prove his insanity by a preponderance of the evidence. The Court concluded that the correctness or incorrectness of the instruction was immaterial since it bore upon an issue which was not properly generated in that case. It said, at 234 Md. 461:

See also Jenkins v. State, 238 Md. 451, 465-466, 209 A.2d 616, vacated on other grounds, 383 U.S. 834, 86 S.Ct. 1237, 16 L.Ed.2d 299.

Erroneous instructions on non-issues are self-evidently immaterial.

II. The Ghost of Homicide Future

Of far greater significance is the impact of Mullaney v. Wilbur and Winship upon the future. Some of our law is squarely unconstitutional. Much of it is questionable but salvageable, if only an antiquated and treacherously ambiguous vocabulary could be trimmed away from it. One thing is clear: it needs to be resurveyed in light of Mullaney v. Wilbur.

A. The Mullaney v. Wilbur Decision Itself

The immediate issue before the Supreme Court was the requirement that a defendant charged with felonious homicide in Maine "prove that he acted `in the heat of passion on sudden provocation' in order to reduce the homicide to manslaughter." 44 L.Ed.2d at 511. The Supreme Court was called upon to decide whether that requirement of Maine law comported "with the due process requirement, as defined in In re Winship... that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged." Ibid.

The evidence was undisputed that Wilbur had fatally assaulted one Claude Hebert in the latter's hotel room. There were no witnesses to the crime other than Wilbur himself, who did not take the stand at his trial. Introduced against him was his confession acknowledging his homicidal agency. In the course of that confession, however, Wilbur had claimed "that he had attacked Hebert in a frenzy provoked by Hebert's homosexual advance." Ibid. The alternative theory of the defense (the theory which was ultimately pertinent) was that "at most the homicide was manslaughter rather than murder, since it occurred in the heat of passion provoked by the homosexual assault." Pp. 511-512.

The Maine law on homicide, under review by the Supreme Court, bore remarkable similarity to the Maryland law on that subject.10 As summarized by the Supreme Court, Maine recognized that certain elements are common to all felonious homicide — both murder and manslaughter. Those elements are that the homicide 1) be unlawful, that is, that it be neither justifiable nor excusable, and 2) be intentional. The State is required to prove these elements beyond a reasonable doubt. Only upon proof of them would a Maine trial court go on to consider the further distinction between murder and manslaughter. It did go on to consider that further distinction in the trial of Wilbur.

In language ominously familiar to Maryland ears, the Maine court defined murder and manslaughter. It pointed out that "Whoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder..." P. 512, n. 3. It further pointed out that "Whoever unlawfully kills a human being in the heat of passion, on sudden provocation, without express or implied malice aforethought [is guilty of manslaughter] ..." Ibid. The Maine trial court further charged that "`malice aforethought is an essential and indispensable element of the crime of murder' ... without which the homicide would be manslaughter." P. 512.

The Maine trial court then moved on to the constitutionally significant nub of the instruction. As found by the Supreme Court, it told the jury that "if the prosecution established that the homicide was both intentional and unlawful, malice aforethought was to be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation." Ibid. The trial court pointed out that "malice aforethought and heat of passion on sudden provocation are inconsistent things" and that "by proving the latter the defendant would negate the former and reduce the homicide from murder to manslaughter." Ibid. The court then defined "heat of passion" and "sudden provocation" in constitutionally inoffensive terms.

Wilbur was convicted of murder and predicated his appeal, first to the Maine Supreme Judicial Court and then to the Supreme Court of the United States,11 upon the proposition that "he had been denied due process because he was required to negate the element of malice aforethought by proving that he had acted in the heat of passion on sudden provocation." p. 513. He claimed that by allowing the jury to presume non-mitigation — the sole element of "malice" distinguishing murder from manslaughter — the prosecution had been relieved of its burden under Winship "to prove the existence of that element beyond a reasonable doubt." Ibid.

The Supreme Court cleanly isolated the issue before it:

The Mullaney v. Wilbur decision went on to trace and to analyze incisively the development of the common law of felonious homicide, the splitting of that crime into the separate crimes of murder and manslaughter, and the procedural devices that emerged to move culpability upward or downward between the two. It reaffirmed the undergirding tenet of In re Winship that the prosecution must, under the Due Process Clause, prove beyond a reasonable doubt each and every element necessary to establish guilt and/or necessary to enhance punishment. The ultimate holding of the Court, as applied to the Maine conviction before it, was clear:

B. A Reader's Guide to Mullaney v. Wilbur

Although a very narrow reading of Mullaney v. Wilbur could conclude that it dealt only with instructions, in a jury trial, on the subject of the allocation of the burden of proof on the question of "heat of passion on sudden provocation" in a case where the issue before the jury was whether a guilty verdict should be for murder or only for manslaughter, such would be a grudging and unduly restrictive reading of this groundbreaking decision. A fairer reading makes it clear that what is involved is the broader question of the allocation of the burden of persuasion where a wrongful allocation of that burden will operate to relieve the State of its obligation under the Due Process Clause, as interpreted by Winship, to prove each and every element of a criminal offense beyond a reasonable doubt. This goes beyond the limited defense of mitigation and it goes beyond the limited confines of jury instructions.

Particularly in reaching out for the broader import, a mere surface reading will not suffice. In writing for the Court, Justice Powell, as is his wont, produced a thoroughly researched and well-crafted opinion. His analysis is articulate and his logic is impeccable. Notwithstanding these qualities, the opinion stands for far more than it can say — it is but the tip of an iceberg above the waterline. Justice Powell refers in his footnotes to a qualitatively and quantitatively rich reservoir of superb source materials.12 Some of these are deep and intellectually groundbreaking academic efforts which mark analytical breakthroughs in our understanding of the law — particularly in the troubled field of presumptions and their collision with the Due Process Clause. Although they can be little more than alluded to in an opinion that stops short of book-length, a reading of them makes it apparent that they animate and undergird all that appears on the surface of the Mullaney v. Wilbur opinion itself. For a thorough appreciation of Mullaney v. Wilbur and its unmistakable import for the future, it is indispensable to read and to digest the underlying sources that breathe through its every pore.

C. The Common Law's Tower of Babel

In looking to the impact of Mullaney v. Wilbur and Winship upon Maryland's homicide law, one fixed star of reference must be kept constantly in mind. These cases are concerned exclusively with due process, the modality or process by which we do certain things in the criminal law. They are concerned with the criminal law's procedures and not with its substance. It is, therefore, not the definitions or elements of our various grades of felonious homicide that require scrutiny under Mullaney v. Wilbur and Winship, but rather our mechanical, evidentiary and procedural devices. The ultimate concern here is not with what we do but with how we do it. We will look then to our procedural devices and to the subversion of those devices over the decades by a shifting and unreliable vocabulary.

Unlike simpler crimes with a single mens rea, felonious homicide has over the centuries developed a broad spectrum of more or less blameworthy mental states. To move backward and forward along that continuum between the least culpable and the most culpable ends of the band, the common law invented a series of procedural devices — presumptions (true and so-called), inferences and burdens of proof (both of going forward with the evidence and of ultimate persuasion). The devices, which might have had great utility if carefully employed, have produced instead a juridical madhouse — a linguistic hall of mirrors where meaning and direction are endlessly shifting — primarily because different devices with different functions have been cursed with the same name.

A journey through the case law in search of clear and consistent meaning can only be described as Kafkaesque. Where terms such as "malice implied," "malice presumed" and "malice inferred" are employed with phantasmagoric interchangeability, the case law is a semanticist's nightmare. It is as if the word "knife" could connote either a surgeon's scalpel or a butcher's ax. Court A describes a delicate operation using a "knife" (meaning thereby a surgeon's scalpel). Court B attempts meticulously to follow the teaching of Court A but is doomed to inevitable disaster because the word "knife" means to it, a butcher's ax.

The analogy is not farfetched. In our procedural vocabulary, two words or phrases are particularly contagious spreaders of confusion — "burden of proof" and "presumption". "Burden of proof" connotes two very different things:

1) the burden of ultimate persuasion (the risk of nonpersuasion); and

2) the burden of producing some evidence (the risk of dismissal and/or the risk of not getting an issue before the jury). All too frequently, the phrase is employed in both jury instructions and in our case law without a clear differentiation as to which meaning is attached to the phrase on a particular occasion. All too frequently, it appears that the user was not even aware of the distinction. When the user (opinion writer or jury instructor) is not even aware of the ambiguity, the recipient of the message (the opinion reader or the jury) cannot possibly receive a clear and unambiguous message.

The culprit "presumption" is even more protean in its myriad manifestations. It connotes five very different things:

1) a mere statement as to who has and what is the burden of persuasion (e.g., the "presumption of innocence"13);

2) a rule of substantive law (a conclusive presumption14);

3) a permitted inference of fact (e.g., the so-called "presumption" that the possessor of recently stolen goods is the thief);

4) a presumption of law, or true presumption, in the Morgan tradition of shifting the burden of ultimate persuasion and entailing either a directed verdict or a jury instruction; and

5) a presumption of law, or true presumption, in the Thayer-Wigmore tradition of something which shifts only the burden of going forward with evidence and which totally dissipates or disappears from the case once that burden is met (the "bursting bubble " concept).

All too frequently, no differentiation is made as to which of these five distinct meanings is attached to the word "presumption" on a particular occasion. When the same word or phrase means one thing to the writer or speaker and something quite different to the reader or hearer, communicative chaos is inevitable.

This treacherous procedural vocabulary has been superimposed upon an equally treacherous definitional vocabulary, which describes the elements of the various degrees of blameworthiness in now anachronistic terms which have, over the centuries, lost their original meaning and become terms of art totally divorced from common usage. The prime culprit, in this regard, is "malice." It is not a single notion but an "umbrella term" encompassing three distinct aspects. It connotes:

The root problem is that we use the undifferentiated "umbrella term" when we are sometimes referring only to one of its three aspects. Certain procedural devices which are constitutionally appropriate in establishing one aspect of "malice" happen to be unconstitutional with respect to the establishment of other aspects of "malice."

The heart of the problem is the far-from-consistent interaction of the two meanings and functions of "burden of proof" and the five meanings and functions of "presumption" with the three aspects of "malice." This haphazard interaction has produced some results which must now be recognized as unconstitutional and many other results which are chaotic even short of being unconstitutional. Mullaney v. Wilbur has not created the problem; it has simply spotlighted the problem.

We must cull out our procedures which are unconstitutional. In the process, we should also identify the linguistic baggage which is now totally outdated, serves no present purpose, only encumbers us by its presence and ought to be forthwith discarded. The season is at hand for a systematic linguistic housecleaning. Although one could program a survey of our homicide law by tracing its historical development or alternatively, by proceeding through it from its most culpable degree through its least culpable degree, the most appropriate route of survey will probably be, in light of Mullaney v. Wilbur's concern with procedural devices, an examination of the various employments of that Hydra-headed monster: "Presumption."

D. Head One of the Hydra: A Mere Statement as to the Burden of Proof

Remarkably, the jury instructions on homicide which come before us for review frequently contain the sentence, "All murder will be presumed to be murder in the second degree."16 It is as likely as not that such a sentence is simply a slip of the tongue and that what was intended was some other sentence such as, "All felonious homicide will be presumed to be murder in the second degree," or, even more broadly, "All homicide will be presumed to be murder in the second degree." With the speaker's attention being drawn to the predicate of the sentence,"... will be presumed to be murder in the second degree," there may well have been careless indifference to whether the subject of the sentence was "Murder," "Felonious homicide," or "Homicide."17 Assuming, however, that the sentence is sometimes literally intended, it is constitutionally unoffending.

Such a statement is, of course, no presumption at all. It is simply a circuitous and roundabout way of saying that the burden is upon the State of proving beyond a reasonable doubt all elements that go to make up murder in the first degree. As a purely redundant restatement of a burden already naturally upon the State, it is a statement that behaves exactly like the statement having to do with "the presumption of innocence."

There are good reasons, however, for studiously avoiding any such statement as, "All murder will be presumed to be murder in the second degree."18 It is, in the first place, a very roundabout and indirect way of saying something about the burden of proof which could be said much more simply and directly. In the second place, it has the potential for generating confusion in two regards. Although a merely innocuous statement about, "All murder being presumed ...," it may too easily be misunderstood to be a statement about, "All felonious homicide being presumed ..." or "All homicide being presumed...." In the second place, the misuse of the word "presumed" has its own potential for confusing, since this is not a case where anything is "presumed." Although less than unconstitutional, the statement ought to be avoided at all costs.

We would, however, make it absolutely clear that our criticism with existing practice in this regard is only with the misuse of the word "presumption" and not with the proper emphasis placed by such instructions upon the heavy burden of the State to prove the special elements of first-degree murder beyond a reasonable doubt. A defendant continues to be entitled to a jury instruction emphasizing the undisputed legal truth that mere proof even of murder will not give rise to an automatic permissible inference of deliberation or premeditation. If the jury is in a state of doubt or equipoise as to the establishment of the aggravating elements, the defendant is entitled to an assumption that the murder is only in the second degree. The jury should be told that the burden is upon the State of proving every aggravating element beyond a reasonable doubt and that in the absence of such proof by such a standard, guilt must be assumed to be only at the lower level.

Our only point in this regard is that the vocabulary is rich enough to find words to describe this heavy burden upon the State without resorting to a misuse of that procedural word of art "presume," which, to avoid future confusion, should be restricted to its technically proper role of describing a shifting of a burden. The burden to prove murder in the first degree begins with the State and always remains upon the State; it never shifts. A defendant will continue, therefore, to be entitled to the "assumption" that all murder is only murder in the second degree. That perfectly valid "assumption," however, should not be misnamed a "presumption."

E. Head Two of the Hydra; A Statement of Substantive Law

Mullaney v. Wilbur does not affect any of our rules of substantive law — only our procedures. The pitfall of possibly overapplying Mullaney v. Wilbur is lurking in our path, however, because some of what are now substantive rules began their careers as legitimate procedural devices or as seemingly necessary legal fictions and only slowly hardened into conclusive presumptions (or rules of substantive law) over the centuries. Some other present substantive laws give the deceptive appearance of having traveled that evolutionary route. Three situations which now involve solid substantive law, and are not remotely procedural in nature, merit discussion.

1. The Less Common Forms of First-Degree Murder

By the clear direction of Maryland statute, murder in the first degree is, by definition, any of the following:

The difficulty is that of all of the forms of first-degree murder listed above, one of them — c.: "wilful, deliberate and premeditated killing" — has quantitatively so dominated the literature and the case law as to be taken for the norm, if not indeed for the universal statement of the offense. Our law, therefore, frequently makes statements that apply to that one form of first-degree murder alone but does so in unqualified and overly broad terms that seem to be universal truths rather than statements of simply limited utility. It is not unusual to find in our case law such seemingly universal statements as "... in order for the State to elevate the crime to first degree murder it must show that the killing was wilful, deliberate, and premeditated." Wilson v. State, 261 Md. 551, 563, 276 A.2d 214. In the factual context of its own case, the statement (and numberless ones like it) was unquestionably correct. The danger of its unqualified language, however, is that it is leading the overly zealous Mullaney v. Wilbur addicts into the ready trap of looking upon all other varieties of first-degree murder as constitutionally suspect shortcuts to a finding of "wilfulness, deliberation and premeditation." They read into certain felony-murder convictions, for instance, an unconstitutional relieving of the State of some postulated burden, under the Due Process Clause, of proving the special mens rea spelled out in the latter part of § 407. There is, of course, no such proof required.

What are now §§ 407-410 were taken directly from § III of Chapter 138 of the Acts of 1809, which for the first time separated murder in Maryland into degrees.19 That act did not create a new crime but simply divided murder into two degrees for punishment purposes, leaving the common law definition of the crime of murder undisturbed. Davis v. State, 39 Md. 355. The desirability of some form of codification was twofold. That same Chapter 138 of the Acts of 1809 had, in § XI thereof, abolished benefit of clergy in Maryland. Theretofore, the more aggravated forms of murder had been non-clergyable, that is, capital. The less aggravated forms of murder were clergyable, that is, non-capital. With the abolition of the ameliorating device known as benefit of clergy, all murder would have become capital. The effect of § III of the Acts of 1809 separating murder into categories was to give us, in the form of the categories of first-degree murder and second-degree murder, the functional equivalents of the former categories "non-clergyable" and "clergyable," respectively.

To the extent to which certain of the less aggravated forms of murder were non-clergyable (and, thereby, capital) prior to the Acts of 1809, a second moving force was at work in Maryland. Pennsylvania had by its Act of 1794 moved to mitigate "the rigor of the common law by dividing murder into degrees," Moreland, Law of Homicide (1952), at 199-200. This reform movement spread from Pennsylvania to seven other states, including Maryland. Moreland, op.cit., at 204-205; Note, The Developing Law of Intentional Murder in Maryland, 13 Md.L.Rev. 327 (1953). What is now § 407 of our law was taken virtually verbatim from the Pennsylvania Act of 1794.20

In spelling out the crimes which, because of "the degree of their atrociousness," would be first degree and, therefore, capital (the formerly non-clergyable category), § III gave us what has been our law ever since:

The other forms of first-degree murder, albeit perhaps less common, are not mere pale reflections of wilful, deliberate and premeditated killing. They stand upon their own feet as self-sufficient definitions of murder in the first degree. Their own sets of circumstances do not constitute first-degree murder because wilfulness, deliberation and premeditation may somehow be inferred, presumed or implied, but because such wilfulness, deliberation and premeditation are irrelevant considerations and are flatly superfluous. A poisoning, for example, could be sudden and spontaneous rather than deliberate and premeditated, and yet constitute murder in the first degree. Although it is difficult to hypothesize, a killing by lying in wait need not, of necessity, be deliberate and premeditated in order to constitute murder in the first degree.21 In most of these other forms of first-degree murder, it is the particular actus reus.22 the dreaded modality or means of the murder, which we have singled out for our gravest criminal sanction and not a particular mens rea. In the various felony-murders listed in §§ 408, 409 and 410,23 no intent to kill is even necessary, let alone a deliberated and premeditated intent. Lynch v. State, 9 Md.App. 441, 265 A.2d 283; Wiggins v. State, 8 Md.App. 598, 261 A.2d 503; Parker v. State, 7 Md.App. 167, 254 A.2d 381.24

These other varieties of first-degree murder are separate and equal combinations of circumstances invoking our highest penalty and not simply means of establishing wilfulness, deliberation and premeditation. They have rather been designated by statute as independently self-sufficient conditions to constitute murder in the first degree. They are, therefore, not remotely affected by anything in Mullaney v. Wilbur.

2. The Doctrine of Transferred Intent

There is a second rule of substantive law which is totally unaffected by anything in Mullaney v. Wilbur but which may, at first glance, appear to be vulnerable simply because the word "transferred" seems to indicate that some procedural device is at work. This is the doctrine of transferred intent. This ancient rule of the common law that if A, with requisite malice, aims a deadly weapon at B, misses B and hits C (an unintended victim), the killing of C will nonetheless constitute murder, is now firmly established as part of the common law of Maryland. Gladden v. State, 273 Md. 383, 330 A.2d 176, aff'g 20 Md.App. 492, 316 A.2d 319. In earlier evolutionary stages, a legal fiction or a procedural device may have been at work. It is now clearly recognized, however, that what is involved is simply a rule of substantive law that the mens rea of murder as to anyone coupled with the actus reus of a homicide is sufficient to constitute the crime of murder. As long as the mens rea and the actus reus correspond in time, there is no requirement that the mens rea be directed specifically at the actual victim. The modern and better explanations of the doctrine point out the inappropriateness of the word "transferred" in the earlier case law.

Perkins, Criminal Law (2d Ed. 1969) makes it plain that to speak of "transferring the malice" was simply "to offer an unsound explanation ... to support a very sound conclusion," saying at 826:

To a similar effect is LaFave and Scott, Criminal Law (1972), at 253, pointing out that the right result is reached but that the earlier "sort of reasoning is, of course, pure fiction":

The very thorough and scholarly opinion of Judge O'Donnell in Gladden v. State, supra, brought Maryland squarely into line not simply with the proper result but also with the more modern and more accurate explanation of that result, reasoning at 273 Md. 403-404:

Thus, as a purely substantive rule of law (despite its somewhat suspect name), the doctrine of transferred intent is not affected by anything in Mullaney v. Wilbur.

3. The Labyrinth of Implied Malice

There is a third body of law which is today clearly substantive but which, just as clearly, during earlier stages of its evolution went through the process of being a series of inferences and/or rebuttable presumptions slowly hardening into conclusive presumptions (or rules of substantive law) over the course of several centuries. This body of law deals with those several mental states constituting the mens rea of murder which we have grouped under the general label of "implied malice." To understand what is now meant by "implied malice," one must understand something of the development of the requirement of a particular mental state for a conviction for murder.

a. The Mental State Generally

Felonious homicide at the early common law, tracing from earlier Norman and Saxon antecedents to that common law, did not look to the question of intent but imposed virtually an absolute criminal liability for the killing of a human being.25 By the middle of the 13th century, however, under the combined influence of Roman law (largely through the writings of Bracton), "which stressed the psychical element in criminal liability by emphasizing dolus and culpa,"26 and canon law, "with its persistent and relentless accent upon moral guilt,"27 the phrase "mens rea" began to take on significance in terms of ultimate criminal responsibility. The phrase "mens rea" had first appeared early in the 12th century 28 but grew in significance during the 13th.

During that 13th century, various mental states began to take on significance as they bore upon the question of moral blameworthiness. The earliest agency of amelioration in cases of the less blameworthy homicides was not an acquittal but rather a royal pardon as a matter of course. Already by the early 13th century, one who killed by misadventure or in self-defense or was a lunatic or an infant of tender years, while still technically guilty of homicide, was deemed deserving of a royal pardon, which pardons were consistently and regularly granted.29 By the 14th century, homicide fell into four categories:

For both of the culpable categories where the royal pardon was not available as a matter of course (3 and 4 above), benefit of clergy came to apply as a device which was in effect a commutation of capital punishment for all who could claim to read and write. Because of the feeling, however, that the law had become too soft on major offenders, a series of statutes at the end of the 15th and the beginning of the 16th centuries32 removed the benefit of clergy from murder with "malice prepensed."33 The term "murder" thenceforth was limited to this more blameworthy form of homicide with malice aforethought, for which benefit of clergy was no longer available and which was thereby capital. The lesser felonious homicide without malice aforethought, for which benefit of clergy was still available,34 later came to be called manslaughter.35

Thus, between 1496 and 1547 "malice aforethought" came to be the criterion by which three distinct discriminations were made. With little significant change in function, these are the three aspects of blameworthiness which the word "malice" still connotes today. In the first place, the presence of malice aforethought separated non-clergyable and thereby capital murder from justifiable homicide (homicide which is either authorized or commanded by law), which entitled the accused to a complete acquittal. In the second place, the presence of malice aforethought separated non-clergyable and thereby capital murder from excusable homicide, which entitled one to a royal pardon as a matter of course (although not an acquittal). In the third place, the presence of malice aforethought separated non-clergyable and thereby capital murder from the less blameworthy and clergyable felonious homicide, which gradually evolved into the felony of manslaughter.

These are essentially still the three aspects of "malice" and the three functions performed by those aspects. "Malice" today requires:

b. Non-Malicious "Malice" and Non-Premeditated "Aforethought"

Over the centuries since 1547, malice aforethought has lost a great deal of its original meaning but has also taken on a great deal of new meaning. We will look first to the semantic erosion and then to the semantic growth.

It is a source of inevitable jury confusion that "malice aforethought" today is neither "malicious" nor "thought of beforehand." It has, of course, become a commonplace to lawyers that "malice" connotes nothing which would strike a layman as "malicious." It has come to mean simply an intention to commit a criminal act with no hatred or ill-will required. As Holmes noted in his Common Law (1881), at 53:

Equally to the point is Perkins, Criminal Law (2d Ed. 1969), at 35:

A similar erosion took place with respect to the word "aforethought." In its pristine state, it connoted that the intention to kill had existed some appreciable time before the actual execution of the deed. It connoted the same thing by way of preplanning that premeditation connoted early in the 19th century (when it entered the law as an attempt to rejuvenate the earlier meaning of "aforethought") and significantly more by way of preplanning than premeditation connotes today (premeditation having in the meantime suffered a semantic erosion of its own). The word "aforethought" today is devoid not simply of an ordinary, layman's meaning but of any meaning at all, even as a term of art. As is pointed out by Perkins, Criminal Law (2d Ed. 1969), at 34-35:

To the same effect is Purver, The Language of Murder, 14 U.C.L.A. L.Rev. 1306, 1309 (1967):

The use of the now anachronistic language still haunts us, however. As Purver further points out, at 1306:

And, at 1309:

The word "aforethought" is today an absolutely useless appendage on our law. It has over the centuries been utterly drained of any meaning whatsoever. As a word of no utility but with an ever-present potential for confusion (some may innocently think that "aforethought" means aforethought), it should be struck from the lexicon of our homicide law.

c. The Growth of Implied Malice

Throughout the 17th century, the meaning of "malice" grew even as the meaning of "aforethought" shrank. With the use by the year 1547 of "malice aforethought" as the criterion to separate serious and non-clergyable murder from less serious felonious homicide, English society and a responsive judiciary began to feel the need to expand the more serious or "malicious" category. "An advancing civilization was reaching the point where it demanded punishment for certain additional homicides." Moreland, op.cit., at 11. This growth of the category "murder" was accomplished in three ways. As was discussed in the preceding section, the meaning of "aforethought" (as a limitation upon malice) shrank to the point of nothingness, so that many sudden and unexplained killings could be punished as murder. This period also saw the birth and early growth of the doctrine of transferred intent (discussed in section II E 2 above). Most significantly, this period marked the birth and full maturing of "implied malice."

Originally, the intent required for murder was the "intent to kill" — the state of mind which we today call "express malice." The 17th century (and very late 16th century) recognized the need to punish as murder homicides resulting from other life-endangering intents, even though such intents did not involve literally the intent to kill. These additional mental states were added to the mens rea of murder during this period and they are what we today call:

It is beyond the scope of this review to analyze substantively these additional mental states that today represent various forms of the mens rea of murder. They are well recognized in Maryland law. As Chief Judge Orth noted for this Court in Lindsay v. State, 8 Md.App. 100, 104-105, 258 A.2d 760:

The important thing to be noted for present purposes, as we survey the homicide field under the microscope of Mullaney v. Wilbur, is that the mental states here involved are today definitely a part of our substantive law. Four separate intents are each sufficient to constitute the mens rea of murder whenever an unlawful and unmitigated homicide results from the intended act. The first of these — the intent to kill — we happen to call "express malice," because it was the original intent recognized by our law of murder. The other three of these — the intent to do grievous bodily harm, the intent to do a wanton and depraved life-endangering act and the intent to do a dangerous felony — we sometimes group under the umbrella label of "implied malice," because of the mechanism by which they came to be added to the law.

During the 17th century, the common law judges went through the fiction of "inferring," "implying," or "presuming" an intent to kill from these other intents. Whatever the roundabout historic mechanism of getting these intents into the law, we now flatly recognize that they are independent and self-sufficient mental states to constitute murder and are not mere avenues to the finding of "intent to kill." Perkins, Criminal Law (2d Ed. 1969), summarized the historic process, at 35-36:

In dealing with one variety of "implied malice" that may or may not now be a part of our substantive law — the intent to resist lawful arrest — Moreland, op.cit., at 13, describes eloquently the process by which additional mental states were gradually incorporated into our expanding notion of "malice":

Perkins, A Re-examination of Malice Aforethought, 43 Yale L.J. 537 (1934), describes the same process by which the intent to commit a felony was incorporated or absorbed into the expanding notion of "malice," at 547:

Perkins, op.cit., further points out, at 547-548, the fact that we have outgrown the fiction and recognize the growth of substantive law for what it truly is:

Despite the continued use of the treacherous and illusive participle "implied,"37 the separate mental states that we group under the category "implied malice" do not today imply anything. They are not presumptions which may be rebutted. They are not inferences which may be declined. A jury may not be told that if it finds an intent to rape, rob, burglarize, etc., it may, but need not, find a resulting homicide to have been with malice. It is not the case that these mental states imply malice; it is rather the case that they are malice by definition.

Since these mental states are today unequivocally a part of our substantive law on the mens rea of murder, they are unaffected by anything in Mullaney v. Wilbur.

d. A Linguistic Sandtrap: "Implied Malice" is Not Necessarily Inferred

The thing to be proved — the probandum — does not control the method of proving it. The four alternative mental states that will establish the mens rea of murder — 1) an intent to kill, 2) an intent to do grievous bodily harm, 3) an intent to do a wantonly life-endangering act with a high risk of causing death, and 4) an intent to commit a dangerous felony — are the alternative things to be proved, the probandi. Each is an alternative substantive element of the crime of murder. These elements, just as any element of any crime, may be proved by any available and acceptable method of proof.

Because of the associative power of words, however, a "knee-jerk" reaction is frequently triggered — and it is wrong. Because the label "express" has been put upon the first of these substantive mental elements, we erroneously assume that the method of proving it must be direct rather than inferential or circumstantial. Such is, of course, not the case. By the same token, because the label "implied" (largely by historic accident) has been put upon the latter three of these substantive mental elements, we erroneously assume that the method of proving them must be inferential rather than direct. Again, such is not the case.

The purely coincidental and unfortunate use of the words "express" and "implied" to describe substantive elements suggests nothing whatsoever about the method of proving those elements. Each of the alternative mental elements — whatever its label — may be proved either directly or indirectly as the facts of each case dictate.

An intent to kill — "express malice" — may, of course, be proved directly. (Witness: "I heard the defendant say, `I am hereby killing you because I hate you.'") It may also be, and frequently is, proved inferentially. As will be discussed in the next section, the use of a deadly weapon directed at a vital part of the human anatomy gives rise to an inference of an intent to kill. (We therefore infer "express malice.")

Similarly, the intents to do 1) grievous bodily harm, 2) a depravedly reckless life-endangering act or 3) an underlying felony — the three forms of "implied malice" — may all be proved directly. (Witness 1: "I heard the defendant say, `I am now going to horsewhip that scoundrel within an inch of his life to teach him a lesson'"; Witness 2: "I heard the defendant say, `I am hereby throwing this heavy desk from the roof of the Empire State Building during lunch hour for the sheer thrill of it. I hope no one will be hurt, but that's not my problem'"; Witness 3: "I heard the assailant say, `Hands up! Give me the money in the cash drawer.'") Implied malice — by definition, any of the above intents — is thus proved directly and not inferentially. It may also be proved inferentially, of course, just as anything may be proved inferentially. The intent to do grievous bodily harm may be inferred from the use of a deadly weapon; the intent to do a depravedly reckless act may be inferred from the doing of the act; the intent to perpetrate an underlying rape may be inferred from knocking a woman to the ground, ripping off her clothing and inserting the penis into her body.

The words "express" and "implied" — describing substantive elements — cannot carelessly be taken in a procedural sense as suggesting modes of proof. There is absolutely no correlation between the words "express" and "implied," on the one hand, and evidentiary modes, on the other. Notwithstanding this lack of correlation, the number of Maryland opinions which have linguistically "gone into the rough" on this hazard is embarrassingly legion.

F. Head Three of the Hydra: A Permitted Inference of Fact

Some mislabeled "presumptions" have turned out, upon careful examination, to be nothing more than permitted inferences of fact. Some apologists generously have explained that the earlier use of the word "presumption" was merely intended to connote a "presumption of fact" (to wit, an inference), which was always to be distinguished from a true "presumption of law." When the due explanations have been made and the "inference" drops down from the burden-shifting world of legally significant "presumptions" to the more ordinary world of the inductive, reasoning process, what is the creature "inference" that we are looking at?

In a real sense, the whole decision-making process is the process of drawing inferences. From fact A, we infer fact B. From a confession, we infer guilt. From the pulling of a trigger, we infer an intent to harm. From the possession of recently stolen goods, we infer the theft. From the motive, we infer the criminal agency. From the presence of the sperm, we infer the penetration. From the muddy footprints on the living room rug, we infer the unlawful entry. The whole phenomenon of circumstantial evidence is the phenomenon of inferring facts in issue from facts established. The study of the process of drawing inferences is as much the field of the psychologist and the logician as it is the field of the reviewing judge. Yet certain inferences, out of the infinite swarm of their fellows, have been singled out for legal analysis. Why?

It is difficult to say why certain of this infinite company of factual inductions have been marked for special scrutiny. It was most likely the accident of fortune that caused some of the stronger and more frequently employed inferences to be elevated to the level of "presumptions" in the first place and then, because some of that number were not sufficiently compelling to remain as true "presumptions," to drop back again to the world of ordinary inferences. It was probably this rise to and fall from prominence that marked them for special treatment by the courts.

In any event, an inference comes to our attention in only two situations. When we are called upon to measure the legal sufficiency of evidence, we have to determine whether established facts A and B are legally sufficient to give rise to a fair inference of fact C, the ultimate fact in issue. We are similarly called upon to measure the efficacy of certain inferences when we are asked to instruct a jury that it may (although it need not) infer fact C from established facts A and B.

Since an inference does not shift a burden either of persuasion or of going forward with evidence to a defendant, it does not come under the scrutiny of Mullaney v. Wilbur in that regard. Since an illogical or improbable "inference" would, however, unfairly relieve the State of part of its burden of proving every element of a case beyond a reasonable doubt, the inference, even as a mere inference, must pass constitutional muster under United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965), and Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). It must, therefore, be based upon a rational connection between the facts established and the fact to be inferred. Conversely, it "must be regarded as `irrational' or `arbitrary,' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact [the inferred fact] is more likely than not to flow from the proved fact on which it is made to depend." Leary v. United States, supra, at 89 S.Ct. 1548, cited in Lindsay v. State, supra, at 8 Md.App. 109.

The only inference of any significance in our homicide law is the permitted inference of an intent to kill or of an intent to do grievous bodily harm from the directing of a deadly weapon at a vital part of the human anatomy or from some similar use of deadly force. The earlier case law sometimes spoke of the use of a deadly weapon as giving rise to a "presumption of malice." In Lindsay v. State, supra, however, Chief Judge Orth stole a march on Mullaney v. Wilbur and strove mightily to refine the appellate vocabulary of Maryland and to bring it into the 20th century. He meticulously explained that we do not "presume" anything from the use of deadly force; we are only permitted (but not required) to draw inferences from such use of deadly force. He further pointed out that this permitted inference of fact passes full constitutional muster under Leary v. United States, supra. We reaffirm and add that it thereby also passes constitutional muster according to Mullaney v. Wilbur and Winship.

One strong caveat in this regard is of overriding importance. Even when we are careful simply to permit an inference from the use of deadly force and not to presume anything therefrom, we must meticulously limit the predicate which may be inferred. Much of our case law speaks carelessly of inferring (or presuming) malice from the use of deadly force. This is an overly broad employment of the inference which is unconstitutional.

The danger lurks in the fact that "malice" means all of three different things:

The use of deadly force properly gives rise to a permitted inference only of the first aspect of malice, that is, the intent to kill (or, alternatively, the intent to do grievous bodily harm).38 It does not, with any degree of probity or probability, give rise to a permitted inference that the killing was without justification or excuse. The lawful executioner, the soldier in combat, the policeman chasing the dangerous and fleeing felon, the homeowner rightfully defending himself — all may direct deadly force. It is a fair inference that they all intended to kill, but it is not a fair inference that they did so without justification or excuse. By the same taken, the outraged and cuckolded husband, who is still in hot blood upon discovering his wife in an act of adultery, may also direct deadly force at his victim. It is a fair inference that he intended to kill but not a fair inference that he did so without the mitigating circumstance of hot blood upon legally adequate provocation.

The Maryland case law is replete with the overly broad statements that "malice" may be inferred from the use of a deadly weapon directed at a vital part of the human body. The qualification is not made that only one aspect of malice may be inferred and that two other aspects may not be so inferred. Tate v. State, 236 Md. 312, 317, 203 A.2d 882; Houston v. State, 225 Md. 403, 404, 171 A.2d 233; Chase v. Jenifer, 219 Md. 564, 569, 150 A.2d 251; Chisley v. State, 202 Md. 87, 105, 95 A.2d 577; Woodard v. State, 13 Md.App. 114, 123, 282 A.2d 9. If the word malice must be used at all, any statement as to it should be carefully qualified, as was done in Cook v. State, 9 Md.App. 214, 218, 263 A.2d 33, "It has been consistently held, that in the absence of excuse, justification or a mitigating circumstance, malice is inferred from the use of a deadly weapon directed at a vital part of the body." (Emphasis supplied) It would, of course, be preferable to speak simply of the intent to kill or the intent to do grievous bodily harm as being inferable and not to speak of malice at all.

When we speak of the inference, therefore, we must scrupulously restrict its operation to that limited aspect of malice involving the intent to kill or the intent to do grievous bodily harm. We must never speak of inferring malice generally. This universal statement may all too easily be taken as permitting the inference of those other aspects of malice which are 1) the absence of justification or excuse and 2) the absence of mitigation. Such an inference would, of course, be clearly unconstitutional under Mullaney v. Wilbur and Winship. It would relieve the State unfairly of proving both the absence of justification or excuse and the absence of mitigation. It would thereby put upon the defendant the unconstitutional burden of exculpating himself generally or of lowering his guilt to manslaughter. Again, the transparently simple solution is to refer directly to the intent element as the subject of the inference and to eliminate altogether the circuitous and unnecessary middle term "malice."

G. Head Four of the Hydra: A True Presumption (In the Morgan Tradition)

Whereas an inference may be drawn by a fact finder but may be just as readily rejected, a presumption, if unrebutted, is mandatory in effect. It has immediate legal consequences and controls the procedural course of the trial. It operates not so much upon the decision-making function of the fact finder as upon the ruling-making function of the judge.

The most immediate and direct impact of Mullaney v. Wilbur is to outlaw in a criminal trial any presumption in the Morgan tradition that operates against a defendant.39 In that Morgan tradition, a presumption cast upon the party against whom the presumption operated the burden of ultimate persuasion when it came to contradicting the presumed fact. That burden generally had to be sustained by a preponderance of the evidence. The jury received instructions on 1) the existence of the presumption (it had evidentiary weight for the jury) and also 2) the burden to be borne by the defendant if he would overcome the presumption. ("If you do not find that the defendant has persuaded you to the contrary by a preponderance of the evidence, you will find the presumed fact.") This was the rule throughout much of the common law world with respect to the so-called "affirmative defenses." The defendant bore the ultimate risk of non-persuasion. If the minds of the jurors were in a state of equipoise on the existence or non-existence of self-defense, hot-blood, entrapment, etc., the defendant lost because he had not carried his burden of preponderating persuasion. Casting upon a defendant that sort of burden of ultimately persuading the jury of his innocence (by negating in one fashion or another the necessary criminal element of a guilty mind) was the thing condemned in Mullaney v. Wilbur and Winship. A presumption as conceived of by Morgan may still have some utility for civil trials,40 but in a criminal trial it cuts squarely athwart the due process requirement that the State prove every element of a crime (including mens rea) beyond a reasonable doubt.

Mullaney v. Wilbur set out the earlier tradition, of which the Maine manslaughter law was an example, at 44 L.Ed.2d 516:

The Supreme Court then set out to trace how the notion that a defendant would have to negate malice by a preponderance of the evidence had ever been injected into the law in the first place. The source of the idea, from which it spread rapidly to other American jurisdictions, was Chief Justice Lemuel Shaw for the Supreme Judicial Court of Massachusetts in Commonwealth v. York, 9 Met. (50 Mass. 93 (1845). Commonwealth v. York required a defendant to negate malice aforethought by proving by a preponderance of the evidence that he acted in the heat of passion.41 In Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), the Supreme Court rejected the Commonwealth v. York approach for the federal courts. Mullaney v. Wilbur went on to point out how England itself had rejected such an approach in 1935 in Woolmington v. Director of Public Prosecutions, 1935 A.C. 462, and now requires "the prosecution to negate heat of passion on sudden provocation by proof beyond a reasonable doubt," at 44 L.Ed.2d 518, n. 22. It pointed out that "the large majority of States have abandoned York and now require the prosecution to prove the absence of the heat of passion on sudden provocation beyond a reasonable doubt." Ibid. Indeed, the Supreme Court noted that Chief Justice Shaw himself appeared to waver in Commonwealth v. Hawkins, 3 Gray (69 Mass.) 463, 465 (1855), ten years after his decision in York, and restricted the doctrine of York to the situation "where the killing is proved to have been committed by the defendant, and nothing further is shown ..." (Emphasis supplied by Supreme Court) 44 L.Ed.2d 517, n. 20. The Supreme Court went on to describe the amended position of Chief Justice Shaw, pointing out, at 44 L.Ed.2d 517, n. 20:

In stating clearly that once the issue of manslaughter was fairly in the case the State had the burden of proving non-mitigation beyond a reasonable doubt, the Supreme Court disposed of the argument that the prosecution ought not be required to negate a mental state known best to the defendant himself, reasoning, at 44 L.Ed.2d 521:

The holding was then clear, at 522:

1. The Applicability to Affirmative Defenses Generally

There can be do doubt as to the applicability of the Mullaney v. Wilbur principle to the so-called "affirmative defenses" generally. The Mullaney v. Wilbur opinion itself, in pointing out that even Maine law required the State to carry the full burden on the issue of negating self-defense, essentially equated the situations involving mitigation and self-defense, saying, at 44 L.Ed.2d 521-522:

That Maryland clearly cast upon a defendant the burden of persuasion by a preponderance of the evidence on the issue of self-defense cannot be doubted. Gunther v. State, 228 Md. 404, 410-411, 179 A.2d 880; DeVaughn v. State, 232 Md. 447, 457, 194 A.2d 109; Perry v. State, 234 Md. 48, 52-53, 197 A.2d 833; Davis v. State, 237 Md. 97, 103, 205 A.2d 254; Wilson v. State, 261 Md. 551, 559, 276 A.2d 214; Bradford v. State, 234 Md. 505, 514, 200 A.2d 150; Long v. State, 3 Md.App. 638, 639, 642, 240 A.2d 620; Gray v. State, 4 Md.App. 175, 180, 241 A.2d 909; Morris v. State, 4 Md.App. 328, 331, 242 A.2d 582; Chandler v. State, 7 Md.App. 646, 651, 256 A.2d 695; Street v. State, 26 Md.App. 336, 338, 338 A.2d 72.42

Even prior to Mullaney v. Wilbur, twenty-four states had recognized that once a defendant had fairly raised the issue of self-defense by producing some evidence in that regard, the burden fell upon the State to negate self-defense beyond a reasonable doubt.43

In Wilson v. State, 28 Md.App. 168, 343 A.2d 537, Judge Menchine, for this Court, dealt with the situation where the issue in a homicide case is excuse because of accident or misadventure. He concluded with respect to that defense, at 28 Md.App. 178:

The Court of Appeals has recently, in State v. Grady, 276 Md. 178, 345 A.2d 436, utilized the principle of Mullaney v. Wilbur and Winship to disapprove a jury charge placing upon a defendant the burden of proving an alibi defense. Although the alibi defense had not, to be sure, been one of the "affirmative defenses," the opinion of the Court of Appeals, speaking through Judge Digges, teaches clearly that Mullaney v. Wilbur will not be read narrowly and grudgingly, 276 Md. 182, at 345 A.2d 438:

The principle of Mullaney v. Wilbur will apply to the affirmative defenses generally.

2. The Five Faces of Heresy

The forms taken by the constitutional heresy in Maryland have been curiously varied. The most blatant and visible, of course, is where the jury is instructed that a defendant must prove mitigation (or justification or excuse or whatever) by a preponderance of the evidence.45 Even in the subtler forms, however, whenever a jury is told that an element of the mens rea is to be presumed, the State has been unconstitutionally relieved of its rightful burden under the Due Process Clause of proving every element of the crime (including all necessary aspects of the mens rea) beyond a reasonable doubt. It may be helpful to catalogue briefly five frequently employed errors made in describing the so-called presumption of malice — four of them unconstitutional and one of them an absurd tautology. In looking at the errors, we need again to take our bearings on the fixed point that "malice" comprehends three distinct aspects: 1) intent, 2) absence of justification or excuse and 3) absence of mitigation. Unless all three coalesce, there is no "malice."

a. The Threefold Unconstitutionality

The statement is sometimes made, "The law presumes all homicides to be committed with malice aforethought and to constitute murder." Chisley v. State, 202 Md. 87, 105, 95 A.2d 577 [the errors, some now of the third and fourth generation, which can trace their pedigrees back to this single case, are almost without number]; Faulcon v. State, 211 Md. 249, 257, 126 A.2d 858; Elliott v. State, 215 Md. 152, 159, 137 A.2d 130; Bruce v. State, 218 Md. 87, 98, 145 A.2d 428; DeVaughn v. State, 232 Md. 447, 456, 194 A.2d 109; Day v. State, 2 Md.App. 334, 342, 234 A.2d 894; Dubs v. State, 2 Md.App. 524, 538, 235 A.2d 764. This broadest of the statements relieves the State of proving 1) an intent to kill or do grievous bodily harm; 2) the absence of justification or excuse and 3) the absence of mitigating circumstances.

b. The Twofold Unconstitutionality

The statement is sometimes slightly less broad, "The inference of malice may be drawn from the fact of the use of a deadly weapon directed at a vital part of the body." Tate v. State, 236 Md. 312, 317, 203 A.2d 882; Veney v. State, 251 Md. 159, 175, 246 A.2d 608; McFadden v. State, 2 Md.App. 725, 728, 237 A.2d 93. The use of a deadly weapon directed at a vital part of the human body, of course, simply gives rise to the inference that the killing was intentional. From this established fact of an intentional killing — but one aspect of malice — the remainder of malice is then presumed. The State is relieved of its burden of proving 1) the absence of justification or excuse and 2) the absence of mitigation. A variant form of this unconstitutionally broad statement is found in Coit v. State, 7 Md.App. 70, 73, 253 A.2d 526, "The intent to commit murder is shown by an intent to commit grievous bodily harm ..." (Emphasis supplied)

c. The Onefold Unconstitutionality

Sometimes, slightly more careful statements offend the Constitution only in a single regard, "An intentional killing, absent justification or excuse, will be presumed to be with malice." Gunther v. State, 228 Md. 404, 411, 179 A.2d 880; Lindsay v. State, 8 Md.App. 100, 104, 258 A.2d 760. A variant form of the same mistake is, "An intentional and unlawful [thereby precluding justification or excuse] killing will be presumed to be with malice." Law v. State, 21 Md.App. 13, 30, 318 A.2d 859; Abney v. State, 244 Md. 444, 448, 223 A.2d 792. When the presumption appears in these forms, the first two aspects of malice are given as having been established and the State is relieved of its burden of proving only the third aspect of malice — the absence of mitigation.

d. A Reverse Form of the Onefold Unconstitutionality

The presumption sometimes appears in the following form, "The law presumes that in the absence of mitigation, all homicides are committed with malice and constitute murder." Woodard v. State, 13 Md.App. 114, 122, 282 A.2d 9; Simms v. State, 4 Md.App. 160, 168, 242 A.2d 185. In this form, the absence of mitigation is a given fact and the State is relieved of its burden of proving simply the second aspect of malice — the absence of justification or excuse.

e. The Tautology

Sometimes the constitutionally inoffensive but semantically inane statement is made, "An intentional killing, absent justification, excuse or some circumstance of mitigation, will be presumed to be with malice." Tate v. State, 236 Md. 312, 317, 203 A.2d 882; Davis v. State, 237 Md. 97, 103, 205 A.2d 254; Veney v. State, 251 Md. 159, 175, 246 A.2d 608; Wilson v. State, 261 Md. 551, 563, 276 A.2d 214; Williams v. State, 2 Md.App. 170, 176, 234 A.2d 260; Lawrence v. State, 2 Md.App. 736, 739, 237 A.2d 81; Brown v. State, 4 Md.App. 261, 267, 242 A.2d 570; Jacobs v. State, 6 Md.App. 238, 242, 251 A.2d 33; Bagley v. State, 6 Md.App. 375, 379, 251 A.2d 246; Dyson v. State, 6 Md.App. 453, 456, 251 A.2d 606; Shotkosky v. State, 8 Md.App. 492, 507, 261 A.2d 171; Cook v. State, 9 Md.App. 214, 217, 263 A.2d 33; King v. State, 14 Md.App. 385, 389, 287 A.2d 52. The obvious question is, "Why presume malice when all of its elements are already given as established facts?" Since malice is, by definition, "intentional killing absent justification, excuse or mitigation," the above statement posing as a presumption is no presumption at all. From A, B and C, we may presume D; but from A, B and C, we do not presume A, B and C. The "presumption" as thus expressed is the equivalent of saying, "From the given establishment of all elements of malice, we will presume malice," or, alternatively, "From an intentional killing, absent justification, excuse or mitigation, we will presume an intentional killing, absent justification, excuse or mitigation." No matter how constitutionally innocuous this meaningless tautology, it has abiding potential to confuse the hearer as it has obviously confused the utterers.

The obvious source of most of the semantic difficulty is the confusing presence of an unnecessary middle term — "malice." Our problem is to define "murder." We do so by calling it a killing with "malice." Since no layman has the remotest idea what that means, we then define "malice" as "1) the intent to kill (or its equivalents) plus 2) the absence of justification or excuse plus 3) the absence of mitigation." Why not simply define "murderous intent" as "the intent to kill (or its equivalents) without justification, excuse or mitigation"? If A equals B and B equals C, why not say simply that A equals C? Only the powerful inertia of ingrained habit can account for the failure of fresh thought to expunge the misbegotten term "malice" from the vocabulary of our homicide law. In this regard, we agree specifically with the Supreme Court of Michigan in People v. Dunn, 233 Mich. 185, 197, 206 N.W. 568, 572:

Even more generally, we agree with the Court of Appeals of Michigan in People v. Morrin, 31 Mich.App. 301, 187 N.W.2d 434, 445:

In dealing with the presumption of malice, the Maryland case law indicates that it has been unsure of itself. The opinions give off certain intimations occasionally that they are groping, tentatively and unsurely, toward the light of the Thayer-Wigmore concept of the presumption (to be discussed in the next section). Even as some of our cases place the burden on a defendant of proving his affirmative defense by a preponderance of the evidence, they sometimes precede this a few sentences earlier or follow this a few sentences later with some such statement as, "But if upon all of the evidence, you are not convinced beyond a reasonable doubt that the defendant (did not act in self-defense, did not kill in hot blood, etc.) you should acquit." These cases seem to be trying to put the burden of persuasion simultaneously on both the State and the defense. The Supreme Judicial Court of Maine, in State v. Millett, 273 A.2d 504, 506, pinpointed the judicial ambiguity in terms we find incisive, citing Maryland as an example of the semantic drift:

State v. Malone, 327 Mo. 1217, 39 S.W.2d 786, dealt with an erroneous instruction placing the burden upon a defendant of proving self-defense by a preponderance of the evidence. It dealt further with whether that-error could be averted by a concluding sentence "to the effect that if there is reasonable doubt of defendant's guilt he should be acquitted." On the effect of these conflicting instructions, the court said, at 39 S.W.2d 790:

A similar situation was dealt with in State v. Grady, supra. There, as the Court of Appeals found, an erroneous instruction was given placing the burden upon the defendant to establish his alibi defense. Earlier in the jury instruction, the jury had, to be sure, been told that if "after a full and fair consideration of all the facts and circumstances in evidence, you find that the government has failed to prove beyond a reasonable doubt that the defendant was present at the time when, and the place where, the offense charged was allegedly committed, you must find the defendant not guilty." Notwithstanding this correct statement as to the burden upon the State, contained in one section of the instructions, Judge Digges squarely held that Maryland will brook no strained apologia in an effort to rationalize the irrational, at 276 Md. 185, 345 A.2d 440:

Whatever tentative gropings there may have been, it is nonetheless clear that Maryland has been applying the presumption of malice in the Morgan tradition and not in the Thayer-Wigmore tradition. It is clear that we have been referring to a burden of persuasion being upon a defendant and not a mere burden of producing some evidence, since our statements as to the burden on a defendant to exculpate by way of justification or excuse or to mitigate by showing hot blood almost invariably have followed and have grammatically paralleled a preceding statement about the burden being upon the State to raise murder to murder in the first degree. It cannot be argued that different types of burden were being dealt with on opposite sides of the semicolon. It is clear from the statements themselves that whatever type of burden (indisputably a burden of persuasion) was upon the State in the first instance was the same type that was upon the defendant in the second instance.

It is, moreover, clear that our cases were speaking of a burden of persuasion and not a mere burden of producing evidence, since our discussions invariably were in the context of jury instructions. Under the Thayer-Wigmore theory of presumptions, once there is in the case, whether produced by the defense or by the State, sufficient evidence to generate a genuine jury issue, the presumption dissipates and the jury never hears of it. When a jury, therefore, has been instructed about "presumptions" and "burdens," the thing being discussed is by definition a burden of persuasion.

A presumption in this sense, placing a burden of persuasion upon a defendant, is flatly unconstitutional under Mullaney v. Wilbur and Winship.

H. Head Five of the Hydra: A True Presumption (In the Thayer-Wigmore Tradition)

A presumption in the Thayer-Wigmore tradition simply places upon a defendant the onus of producing evidence, or of relying at his risk upon evidence produced by the State, sufficient to generate a jury issue with respect to a particular defense. Once the issue is generated by evidence, the presumption totally dissipates (the bubble bursts) and the State assumes the burden of persuasion on that issue beyond a reasonable doubt. Since the presumption has totally served its purpose once a jury issue has been created, the jury never hears of the presumption. If the issue has not been generated by evidence, the jury never receives the issue. Once the issue is generated, the jury gets the issue with the burden of persuasion thereon falling upon the State. The preliminary skirmishing on the generation vel non of the jury issue is of no concern to the jury itself.

The reasons of necessity requiring such an initial burden of producing some evidence, or of relying upon evidence produced by the State, to fall upon a defendant are clear. They are well set out in LaFave and Scott, Criminal Law (1972), at 47:

In dealing with the presumption of sanity, which presumption in the proper Thayer-Wigmore sense places upon a defendant the obligation to see that there is produced sufficient evidence of insanity to generate a jury question in that regard, Bradford v. State, 234 Md. 505, 509, 200 A.2d 150, pointed out very concisely the reason of necessity behind such a presumption:

Maryland has traditionally placed upon a defendant, by the device of giving the State the benefit of a presumption to the contrary, the obligation to see that there is produced sufficient evidence to generate a jury question on such issues as intoxication, Bateman v. State, 10 Md.App. 630, 272 A.2d 64; Mock v. State, 2 Md.App. 771, 237 A.2d 811; insanity, Bremer v. State, 18 Md.App. 291, 315-316, 307 A.2d 503; Dennis v. State, 13 Md.App. 564, 569, 284 A.2d 256; Strawderman v. State, 4 Md.App. 689, 698, 244 A.2d 888; self-defense, Street v. State, 26 Md.App. 336, 338-341, 338 A.2d 72; and entrapment, Fisher v. State, 28 Md.App. 243, 345 A.2d 110.

We are persuaded that nothing in Mullaney v. Wilbur adversely affects in any way the status of presumptions in this limited function of requiring that there be produced sufficient evidence to generate a jury issue. The holding of Mullaney v. Wilbur was very careful to add a qualifying clause, at 44 L.Ed.2d 522:

Mullaney v. Wilbur went on very explicitly, at 44 L.Ed.2d 521, n. 28:

Mullaney v. Wilbur went on, at 522, n. 31, to explain that constitutionally proper presumptions simply shift to a defendant the burden of producing evidence (or of relying, at his risk, upon the evidence produced by the State) and not the burden of ultimate persuasion:

Instructive as well are the authorities cited by Mullaney v. Wilbur. It refers, at 44 L.Ed.2d 521, n. 28, to LaFave and Scott, Criminal Law (1972), 539, whereat it is stated:

The same footnote in Mullaney v. Wilbur also refers to Perkins, Criminal Law (2d Ed. 1969) 50-51. Professor Perkins' treatment of the presumption of malice states, in pertinent part, at 49-50:

Another of the authorities relied on heavily by Mullaney v. Wilbur was Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L.J. 880 (1968), wherein the propriety of shifting a production burden to a defendant and the impropriety of shifting a persuasion burden to the defendant was made clear, at 908:

Maryland is familiar with the proper functioning of a presumption in a criminal case, that is, in the Thayer-Wigmore tradition, because this is our established mode of operating in dealing with insanity. There is initially a presumption of sanity, which presumption shifts to the defendant the obligation to see that there is produced legally sufficient evidence to generate a jury question. When that burden is met, the presumption dissipates and disappears totally from the case. The jury receives no instruction as to any presumption in that regard. The State rather bears the full burden of proving sanity beyond a reasonable doubt. This proper treatment of a presumption was spelled out very clearly in Bradford v. State, supra, at 234 Md. 512:

As to the quantum of evidence necessary to generate a jury issue, it was well set out by Judge Powers in Fisher v. State, supra, at 28 Md.App. 248-249, 345 A.2d 114:

Generally speaking, the defensive evidence will be controverted by the evidence, circumstantial or direct, in the State's case. When the defendant, therefore, produces evidence, he has in most cases simply generated an issue for the jury. The jury retains full prerogative to accept or reject the defensive evidence and it must be persuaded by all of the evidence that the defendant is guilty beyond a reasonable doubt. In some instances, however, where all evidence points toward the existence of the defense and where nothing in the State's case, circumstantial or otherwise, controverts the defense in any regard, the evidence may be so clear and decisive as to leave no issue of fact and to generate a counter-presumption (not a mere jury issue) and to entitle the defendant to a directed verdict as a matter of law. As a general rule, however, the defendant will simply generate a jury question.

Of particular interest is Mullaney v. Wilbur's reference, at 44 L.Ed.2d 521, n. 30, to the decision of the Maine Supreme Judicial Court in State v. Millett, supra:

That decision of the Maine Supreme Judicial Court in State v. Millett is a superlative statement of the effect of a presumption in the Thayer-Wigmore tradition. The decision points out emphatically that no instructions to the jury involving the presumption are ever appropriate in any way. The treatment, at 273 A.2d 507-508, is a classic, textbook analysis of how properly to deal with the presumption:

We conclude that nothing in Mullaney v. Wilbur adversely affects the presumption in Maryland of the latter two aspects of malice, to wit, the absence of justification or excuse and the absence of mitigation, just so long as the courts are careful to attach to the word "presumption" its properly limited meaning, in the Thayer-Wigmore tradition, of merely placing upon a defendant the obligation of producing evidence, or of relying, at his peril, upon the evidence produced by the State, sufficient to generate a jury issue. His is the risk of non-production. Whether a jury question is or is not generated by the evidence is always for the court, never for the jury, to decide.

* * *

To all of the foregoing, a fitting benediction is McCormick, Law of Evidence (1st ed. 1954), at 639:

One need only add "malice" for a grand slam.

III. The Ghost of Homicide Present

We hold that Mullaney v. Wilbur applies retroactively to this case. The issue of mitigation, by way of an arguably hot-blooded response to the provocation of a mutual affray, was fairly in the case. Under the circumstances, the jury instruction to the effect that malice might be presumed (including therein the presumption of non-mitigation) unconstitutionally relieved the State of its burden of proving the element of non-mitigation beyond a reasonable doubt. When the instruction went further and placed an affirmative burden on the defendant to prove mitigation by a preponderance of the evidence, it aggravated what was already unconstitutional even without the aggravation.

We further hold that the jury instruction was unconstitutional on the subject of self-defense. That issue was fairly in the case. The jury instruction to the effect that malice might be presumed (including therein the presumption of non-justification and non-excuse) unconstitutionally relieved the State of its burden of negating justifiable or excusable self-defense beyond a reasonable doubt. The additional instruction placing an affirmative burden on the defendant to prove justification or excuse by a preponderance of the evidence simply aggravated what was already unconstitutional even without the aggravation.

Judgment reversed: case remanded for a new trial.