December 21, 1990
GILBERT J. COMBER, APPELLANT
UNITED STATES, APPELLEE. EDWARD L. HAYWARD, APPELLANT V. UNITED STATES, APPELLEE
Hon. Nan R. Huhn, Trial Judge in No. 87-249; Hon. Robert M. Scott, Trial Judge in No. 89-31
En Banc. Rogers, Chief Judge, Newman, Ferren, Belson, Terry, Steadman and Schwelb, Associate Judges.
The opinion of the court was delivered by: Steadman
On Rehearing En Banc
In these consolidated appeals, we are faced with the immediate question of what jury instructions for the crime of manslaughter are appropriate where a person dies as a result of bare-fisted blows to the face. Like an unraveling string, this inquiry has led to and necessitated a more general examination of the law of manslaughter and particularly its division in our jurisdiction into "voluntary" and "involuntary" components. *fn1 In No. 87-249, Joseph Pinkney died after appellant Comber struck him either once or twice in the face with his bare fist. In No. 89-31, Geriel Butler died after appellant Hayward, in two incidents separated by five to twenty-five minutes, punched him twice in the face. Both men were indicted for second-degree murder in violation of D.C. Code § 22-2403 (1989) and were tried before juries. In each case, the jury acquitted the defendant of second-degree murder but returned a guilty verdict on the lesser-included charge of voluntary manslaughter. Id. § 22-2405. Both appellants challenge the voluntary manslaughter instructions upon which the juries based their verdicts. They also raise challenges pertaining to involuntary manslaughter instructions: appellant Hayward claims the trial court erred in refusing to give such an instruction, while appellant Comber claims the involuntary manslaughter instruction in his case was improper. Because we agree with these contentions of instructional error, we reverse and remand for new trials.
I. THE HOMICIDES
A. Appellant Comber
Gilbert Comber apparently did not approve of his sister Mary Comber's relationship with Joseph Pinkney. On February 3, 1986, Pinkney, Mary's former boyfriend, came to the Comber residence to visit her. When Ms. Comber attempted to leave the house to speak with Pinkney, appellant intervened and would not permit her to leave. Appellant and Ms. Comber began to struggle, and appellant hit her. After Pinkney saw this, he and appellant began to argue. However, the two men were separated, and Pinkney left the area before any further violence erupted. During the afternoon of February 4, Pinkney and Mary Comber arrived at the Comber residence after having spent the day together. The two had decided to get married, and had been drinking with friends. A friend of the Combers mistakenly told appellant that Pinkney and Ms. Comber had secretly been married. Saying he was going to get his sister, appellant went out to the alley where Ms. Comber and Mr. Pinkney had parked their car. Witnesses differed as to what happened next. All agreed, however, that Comber, who was substantially smaller by weight than Pinkney, punched Pinkney either once or twice in the face. Pinkney, who was extremely intoxicated at the time of death, fell down, and appellant returned to his house. Though Pinkney was still conscious after being knocked to the ground, he later lapsed into unconsciousness; by the time police arrived, he appeared to be dead. The medical examiner who performed an autopsy on Pinkney's body testified that the cause of death was one or more extremely forceful blows to the face which caused subarachnoid brain hemorrhaging, or bleeding in the part of the brain which controls the heartbeat and respiration. According to the medical examiner, there was no evidence that Pinkney's death resulted from his head striking the pavement when he fell. Appellant Comber testified that he struck Mr. Pinkney only once, and in self-defense. He stated that Pinkney took a swing at him when he tried to get his sister to return to the house with him, and that he never intended to kill Pinkney.
B. Appellant Hayward
In the early morning hours of November 27, 1987, appellant Hayward struck Geriel Butler in the jaw. Butler fell into the street, hit his head, and lost consciousness. He soon regained consciousness, stood up, and walked away. Witnesses disagreed about precisely what happened next, but they all agreed that appellant Hayward and Butler encountered one another again a short time later near a van from which a vendor sold clothes. Appellant Hayward again punched Butler in the jaw. As Butler fell to the ground, the back of his head struck the concrete. Butler lost consciousness and died later that morning at D.C. General Hospital. The medical examiner who performed an autopsy on Butler's body testified that the cause of death was swelling and herniation of the brain, caused by the impact to the back of Butler's head when he fell and hit the ground.
Appellant Hayward testified that he struck Butler in self-defense. He stated that Butler approached him and asked to purchase drugs. After being rebuffed, Butler hollered at appellant Hayward and approached him with his fist balled up. Thinking Butler was about to hit him, appellant Hayward struck Butler. Hayward stated that he then walked across the street to the clothes van, where a short time later Butler again approached, shaking his fist and seeking retribution for the earlier incident. Thinking that Butler would strike him, Hayward again hit Butler, who fell, hitting his head on the concrete.
II. THE INSTRUCTIONS
A. Appellant Comber
After extended Discussions, the trial court in Comber's case decided to instruct the jury on both the lesser-included offenses of voluntary manslaughter and involuntary manslaughter. As to each offense, the Judge modified the District's standard jury instructions. The court gave the following instructions on voluntary manslaughter:
Now, let me read to you the jury instructions on voluntary manslaughter.
Manslaughter is the unlawful killing of a human being without malice. Manslaughter is committed when a human being is killed unlawfully in the sudden heat of passion caused by adequate provocation as the Court has already defined those terms for you. The elements of this offense, each of which the Government must prove beyond a reasonable doubt are as follows:
One: That the defendant inflicted an injury or injuries upon the deceased from which the deceased died.
Two: That the killing was committed without legal justification or excuse.
And three: That the defendant intended to commit the acts which inflicted the injury or injuries.
To establish the first essential element it is necessary that the defendant have inflicted an injury or injuries upon the deceased and that the deceased died as a result of such injury or injuries.
To establish the second essential element of the offense it is necessary that you find the defendant guilty beyond a reasonable doubt, that the defendant did not act in self-defense.
And to establish the third essential element it is necessary that you find that the defendant intended to commit the act which inflicted the injury or injuries upon the deceased. *fn2
On the crime of involuntary manslaughter, the trial court instructed the jury as follows:
Involuntary manslaughter is the unlawful killing of a human being without malice. It may be a killing committed without a specific intent to kill or even without the specific intent to inflict injury which causes death. One may be found guilty of involuntary manslaughter if you find that his conduct was so reckless that it involved extreme danger of death or serious bodily harm and was a gross deviation from the standard of conduct a reasonable person should have observed under the circumstances.
Now, the elements of this offense, each of which the Government must prove beyond a reasonable doubt, are as follows:
One: That the defendant inflicted an injury upon the deceased from which the deceased died.
Two: That the injury was a result of a course of conduct involving extreme danger of death or serious bodily injury.
Three: That although the conduct was not intentional it amounted to recklessness and was a gross deviation from the standard of conduct that a reasonable person should have observed.
And four: That the killing was committed without legal justification or excuse. *fn3
According to these instructions, the essential difference between voluntary and involuntary manslaughter lies in whether or not the defendant intentionally committed the act that caused death. In effect, the court instructed the jury that if Comber intentionally punched Pinkney in the face, the jury should find him guilty of voluntary manslaughter. On the other hand, if Comber punched Pinkney only accidentally, and the unintentional punch rose to the requisite level of recklessness, then the jury should find him guilty of involuntary manslaughter.
B. Appellant Hayward
Hayward requested instructions on both voluntary and involuntary manslaughter. The trial court agreed to instruct the jury on voluntary manslaughter, and gave the jury the following charge:
Voluntary manslaughter . . . is the unlawful killing of a human being without malice. The essential elements of the offense of voluntary manslaughter, each of which the Government must prove beyond a reasonable doubt are:
One, that the defendant inflicted an injury or injuries upon the deceased from which the deceased died;
And, two, that the killing was committed without legal justification or excuse.
To establish the first essential element of that offense, it is as I have told you necessary that the defendant have inflicted an injury or injuries. With regard to the second element of that offense, it is necessary that the killing or homicide have been committed without legal justification or excuse.
Justifiable homicide is the necessary killing of another person in the performance of a legal duty or where the person who kills not being himself at fault has the legal right to kill. Excusable homicide occurs where the person who kills although himself at fault had the legal right so to kill or where the killing was the accidental result of a lawful act done in a lawful manner. *fn4
In response to the appellant's request for an involuntary manslaughter instruction, however, the trial court declared
that Butler's killing "wasn't . . . a result of recklessness." Accordingly, the court refused to give such an instruction.
III. THE CRIME OF MANSLAUGHTER
A. Historical background
Although D.C. Code § 22-2405 (1989) establishes the penalty for manslaughter, "there is no statutory definition of manslaughter in the District of Columbia." United States v. Bradford, 344 A.2d 208, 213 (D.C. 1975). "Manslaughter is defined, rather, by reference to the common law." Williams v. United States, 569 A.2d 97, 98 (D.C. 1989). See also Bradford, supra, 344 A.2d at 213. *fn5 Accordingly, in resolving the issues before us, a brief review of the common law emergence of the crime of manslaughter will be useful.
1. The division of criminal homicide into murder and manslaughter
"What we now know as murder and manslaughter constituted just one offense under the common law of England." R. PERKINS & R. BOYCE, 125 (3d ed. 1982). At the turn of the sixteenth century, all homicides, with the exception of accidental homicides, homicides committed in self-defense, or homicides committed "in the enforcement of Justice," "were deemed unlawful and were punished by death." Mullaney v. Wilbur, 421 U.S. 684, 692, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). The harsh effects of this regime were mitigated, however, by the extension of ecclesiastic jurisdiction. Id. Ecclesiastic courts, which retained jurisdiction to try clerics accused of criminal offenses, see Williams, supra, 569 A.2d at 101 n.9, did not impose capital punishment. Rather, under ecclesiastic law, a person who committed an unlawful homicide "received a one-year sentence, had his thumb branded and was required to forfeit his goods." Mullaney v. Wilbur, supra, 421 U.S. at 692. The transfer of a case from the secular to the ecclesiastic jurisdiction, a procedural device known as "benefit of clergy," thus "resulted in leniency of the most important sort." People v. Burroughs, 35 Cal. 3d 824, 839, 201 Cal. Rptr. 319, 329, 678 P.2d 894, 904 (1984) (concurring opinion). Moreover, "by the fifteenth century, the courts began to accept proof of literacy as the test for clerical status, with the result that benefit of clergy became a 'massive fiction' that 'tempered in practice the harshness of the common law rule that virtually all felonies were capital offenses.'" Williams, supra, 569 A.2d at 101 n.9 (citation omitted).
Perhaps because of concern about "the accretion of ecclesiastic jurisdiction at the expense of the secular," Mullaney v. Wilbur, supra, 421 U.S. at 692, or perhaps because "'the number of serious offenses appeared to increase,'" Williams, supra, 569 A.2d at 101 n.9 (citation omitted), England's monarchs, beginning in the late fifteenth century and into the first half of the sixteenth, enacted a series of statutes which excluded a class of the most heinous homicides from benefit of clergy. Mullaney v. Wilbur, supra, 421 U.S. at 692-93. These killings were referred to in the various statutes as "wilful prepense murders," "murder upon malice prepensed," and "murder of malice prepensed." 3 J. STEPHEN, A HISTORY OF THE OF ENGLAND 44 (1883). See also Mullaney v. Wilbur, supra, 421 U.S. at 692-93 & 693 n.13. "Unlawful homicides that were committed without such malice were designated 'manslaughter,' and their perpetrators remained eligible for benefit of clergy." Id. at 693. The offenses encompassed by the new statutes were designated "murder"; perpetrators of these offenses were subject to secular jurisdiction and capital punishment. This distinction between murder and manslaughter persisted "ven after ecclesiastic jurisdiction was eliminated for all secular offenses." Id. These early statutory developments thus
led to the division of criminal homicides into murder, which retained its status as a capital crime, and the lesser offense of manslaughter. The courts defined murder in terms of the evolving concept of "malice aforethought" and treated manslaughter as a residual category for all other criminal homicides.
MODEL PENAL CODE § 210.3 comment 1, at 44 (Official Draft and Revised Comments 1980) (footnotes omitted). See also 3 J. STEPHEN, (supra) , at 45.
Thus, manslaughter, "in its classic formulation . . . consisted of homicide without malice aforethought on the one hand and without justification or excuse on the other." MODEL PENAL CODE, (supra) , § 210.3 comment 1, at 44. This definition has been adopted in the District of Columbia. See Morgan v. United States, 363 A.2d 999, 1002 (1976) ("manslaughter is the unlawful -- that is, unexcused -- killing of a human, without malice"). A homicide which constitutes manslaughter is distinguished from murder by the absence of malice. United States v. Wharton, 139 U.S. App. D.C. 293, 296, 433 F.2d 451, 454 (1970) (malice is "the sole element differentiating murder from manslaughter"), and is distinguished from a killing to which no homicide liability attaches *fn6 by the absence of factors which would excuse or justify the homicide. Manslaughter is thus a "catch-all" category, defined essentially by reference to what it is not. See R. MORELAND, THE LAW OF HOMICIDE 61 (1952); 2 W. LAFAVE & A. SCOTT, (supra) note 6, § 7.9, at 251; R. PERKINS & R. BOYCE, (supra) , at 104-05. See also 40 AM. JUR. 2D Homicide § 54 (1968) ("if a homicide is neither murder in the first nor in the second degree, and yet is neither justifiable nor excusable in law, it follows, ordinarily, that it must be manslaughter").
2. The division of manslaughter into voluntary and involuntary manslaughter
The broad and undifferentiated early definition of manslaughter created pressure for refinement. In the same way that the early common law concept of unlawful homicide had evolved into murder and manslaughter, so too did manslaughter divide into separate categories of voluntary and involuntary manslaughter, depending on the type of conduct involved. 2 W. LAFAVE & A. SCOTT, (supra) note 6, § 7.9, at 251; id. § 7.12, at 276-77. The distinction between the two varieties of manslaughter was noted by Blackstone as early as 1769. See 4 W. BLACKSTONE, COMMENTARIES *fn7 Initially, the distinction between voluntary and involuntary manslaughter was deemed "purely . . . factual," in that "the punishment the same for both." R. PERKINS & R. BOYCE, supra, at 83. At least until 1975, this tradition was reflected in the District of Columbia, where the punishment for manslaughter was prescribed by a single statute which made no distinction between voluntary and involuntary manslaughter, see D.C. Code § 22-2405, and where "it had not been the practice to charge [voluntary and involuntary manslaughter] separately and explicitly in indictments." Bradford, supra, 344 A.2d at 216. However, in Bradford, this court made explicit that voluntary and involuntary manslaughter are legally separate offenses. Id. Recognition of this distinction was based at least in part on the perception that voluntary manslaughters ordinarily involve more culpable behavior than involuntary manslaughters, and that voluntary manslaughter frequently warrants a more severe sentence than involuntary manslaughter. Id. at 211; 2 W. LAFAVE & A. SCOTT, (supra) note 6, § 7.9, at 251 ("today many American jurisdictions maintain the old distinction between voluntary and involuntary manslaughter, usually awarding a less severe punishment for involuntary than for voluntary manslaughter"); MODEL PENAL CODE, (supra) , § 210.3 comment 1, at 46 & n.10 ("statutes dividing manslaughter into voluntary and involuntary manslaughter typically imposed greater penalties for voluntary manslaughter"); see, e.g., 18 U.S.C. § 1112(b) (1988) (voluntary manslaughter punishable by imprisonment for not more than ten years; involuntary manslaughter punishable by imprisonment for three years). *fn8
Both voluntary and involuntary manslaughter may still be accurately defined as "homicides without malice aforethought on the one hand and without justification or excuse on the other." MODEL PENAL CODE, (supra) , § 210.3 comment 1, at 44. The two offenses are distinguishable by virtue of the perpetrator's state of mind; specifically, the difference between the two offenses lies in the basis for concluding that the perpetrator acted without malice aforethought. As explained below, in all voluntary manslaughters, the perpetrator acts with a state of mind which, but for the presence of legally recognized mitigating circumstances, would constitute malice aforethought, as the phrase has been defined for purposes of second-degree murder. All involuntary manslaughters, in contrast, are killings in which the perpetrator's state of mind, without any consideration of any issues of mitigation, would not constitute malice aforethought.
B. "Malice aforethought" for purposes of second-degree murder
Because of the relationship between voluntary manslaughter and murder, an understanding of the scope of the offense of voluntary manslaughter requires an examination of the states of mind which would make an unlawful killing second-degree murder. At common law, an unjustified or unexcused homicide rose to the level of murder if it was committed with malice aforethought. R. PERKINS & R. BOYCE, (supra) , at 57. This definition continues in effect in the District of Columbia. D.C. Code § 22-2403. *fn9
For purposes of second-degree murder, "malice aforethought" has evolved into "a term of art" embodying several distinct mental states. Byrd, supra note 9, 500 A.2d at 1385. As the commentary to the Model Penal Code explains:
Whatever the original meaning of phrase [malice aforethought], it became over time an "arbitrary symbol" used by Judges to signify any of a number of mental states deemed sufficient to support liability for murder. Successive generations added new content to "malice aforethought" until it encompassed a variety of mental attitudes bearing no predictable relation to the ordinary sense of the two words.
MODEL PENAL CODE, (supra) , § 210.2 comment 1, at 14. See also 2 W. BURDICK, THE LAW OF CRIME § 448 at 160-61 (1946) (the phrase "malice aforethought" "is now a purely technical phrase, and is used to define the state of mind which must accompany murder"). Following the common law trend, this court has recognized that malice aforethought, in the District of Columbia, "denotes four types of murder, each accompanied by distinct mental states." Byrd, supra note 9, 500 A.2d at 1385.
First, a killing is malicious where the perpetrator acts with the specific intent to kill. See id. at 1385; Logan v. United States, 483 A.2d 664, 671 (D.C. 1984). Second, a killing is malicious where the perpetrator has the specific intent to inflict serious bodily harm. Byrd, supra note 9, 500 A.2d at 1385. *fn10 Third, "an act may involve such a wanton and willful disregard of an unreasonable human risk as to constitute malice aforethought even if there is not actual intent to kill or injure." R. PERKINS & R. BOYCE, (supra) , at 59. *fn11 In Byrd v. United States, supra note 9, 500 A.2d at 1385, we referred to this kind of malicious killing as "depraved heart" murder.
Although not all jurisdictions are in agreement on the matter, see 2 W. LAFAVE & A. SCOTT, (supra) note 6, § 7.4, at 200, in the District of Columbia, such depraved heart malice exists only where the perpetrator was subjectively aware that his or her conduct created an extreme risk of death or serious bodily injury, but engaged in that conduct nonetheless. *fn12 Under our formulation, malice "may be found 'where conduct is reckless and wanton, and a gross deviation from a reasonable standard of care, or such a nature that a jury is warranted in inferring that the defendant was aware of a serious risk of death or serious bodily harm.'" Logan, supra, 483 A.2d at 671 (citation omitted). In such circumstances, the defendant's behavior is said to manifest a "wanton disregard of human life." Dixon, supra note 12, 135 U.S. App. D.C. at 406 n.8, 419 F.2d 288, 293 n.8; see also Powell, supra note 12, 485 A.2d at 603 (D.C. 1984) (defendant's conduct "manifested a disregard for the lives and safety of others"). *fn13
Historically, a fourth kind of malice existed when a killing occurred in the course of the intentional commission of a felony. Under this "felony-murder" rule, "malice, an essential element of murder, is implied from the intentional commission of the underlying felony even though the actual killing might be accidental." Byrd, supra note 9, 500 A.2d at 1386 (quoting Shanahan v. United States, 354 A.2d 524, 526 (D.C. 1976)). In the District of Columbia, first-degree felony murder liability attaches where the perpetrator "kills another purposely . . in perpetrating or in attempting to perpetrate" a felony. D.C. Code § 22-2401. *fn14 As to unintentional killings, first-degree murder liability attaches only if the killing occurs in the course of one of six enumerated felonies. *fn15
C. Justification, excuse, and mitigation
Even where an individual kills with one of the four states of mind described above, the killing is not malicious if it is justified, excused, *fn16 or committed under recognized circumstances of mitigation. Implicit in the notion of malice aforethought is "the absence of every sort of justification, excuse or mitigation." R. PERKINS & R. BOYCE, (supra) , at 75. See also Thomas v. United States, 557 A.2d 1296, 1299 (D.C. 1989) ("malice in the legal sense imports . . . the absence of all elements of justification excuse" (citation omitted)). The absence of justification, excuse, or mitigation is thus an essential component of malice, and in turn of second-degree murder, on which the government bears the ultimate burden of persuasion. See Mullaney v. Wilbur, supra, 421 U.S. at 703; Logan, supra, 483 A.2d at 672 n.11. *fn17 For example, even an intentional killing, if it comports with legally accepted notions of self-defense, see McPhaul v. United States, 452 A.2d 371, 373 (D.C. 1982), is not malicious; it is excused and accordingly no crime at all.
Unlike circumstances of justification or excuse, legally recognized mitigating factors do not constitute a total defense to a murder charge. Such circumstances may, however, serve to "reduce the degree of criminality" of a homicide otherwise committed with an intent to kill, an intent to injure, or in conscious and wanton disregard of life. Bradford, supra, 344 A.2d at 215. Though such mitigating circumstances most frequently arise "where the killer has been provoked or is acting in the heat of passion, with the latter including fear, resentment and terror, as well as rage and anger," id., mitigation may also be found in other circumstances, such as "when excessive force is used in self-defense or in defense of another and ' killing committed in the mistaken belief that one may be in mortal danger.'" Logan, supra, 483 A.2d at 671 (quoting Bradford, supra, 344 A.2d at 215). See also 2 W. LAFAVE & A. SCOTT, (supra) note 6, § 7.11, at 271-76; R. PERKINS & R. BOYCE, (supra) , at 102-03. The mitigation principle is predicated on the legal system's recognition of the "weaknesses" or "infirmity" of human nature, R. PERKINS & R. BoYCE, supra, at 84; Bradford, supra, 344 A.2d at 214 (citation omitted), as well as a belief that those who kill under "extreme mental or emotional disturbance for which there is reasonable explanation or excuse" are less "morally blameworthy" than those who kill in the absence of such influences. MODEL PENAL CODE, supra, § 210.3 comment 5, at 53, 54 (internal quotation marks omitted); see also Mullaney v. Wilbur, supra, 421 U.S. at 698 (citation omitted). Legally recognized mitigating factors serve to extenuate or "dampen," Bradford, supra, 344 A.2d at 215, the otherwise malicious nature of the perpetrator's mental state, and thus serve as a bar to a conviction for murder. *fn18
D. Voluntary manslaughter
In this jurisdiction, a homicide constitutes voluntary manslaughter where the perpetrator kills with a state of mind which, but for the presence of legally recognized mitigating circumstances, would render the killing murder. See Bradford, supra, 344 A.2d at 215 ("killings classified as voluntary manslaughter would in fact be second degree murder but for the existence of circumstances that in some way mitigate malice"); Logan, supra, 483 A.2d at 672 (defendant is guilty of voluntary manslaughter where "the purpose to kill . . . is dampened so as to mitigate malice" (internal quotation marks, citation omitted)); cf. West v. United States, 499 A.2d 860, 864 (D.C. 1985) (defendant is entitled to voluntary manslaughter instruction as a lesser-included offense of second-degree murder only where there is evidence of mitigating circumstances); Morgan, supra, 363 A.2d at 1002 (same). *fn19 This definition of voluntary manslaughter reflects the traditional common law view and the prevailing national norm, as indicated by the formulations in numerous treatises. See, e.g., W. CLARK & W. MARSHALL, A TREATISE ON THE LAW OF CRIMES § 258, at 339 (5th ed. 1952) ("in all cases of voluntary manslaughter there is an actual intention to kill, or there is an intention to inflict great bodily harm, from which such an intent may be implied" (emphasis added)); J. DRESSLER, UNDERSTANDING 450 (1987) ("an intentional killing committed in 'sudden heat of passion' as the result of adequate provocation constitutes voluntary manslaughter" (emphasis added)); id. at 473-74 (a defendant is guilty of "voluntary manslaughter rather than murder if she intentionally killed [the victim]" in the heat of passion caused by adequate provocation (emphasis added)); 2 W. LAFAVE & A. SCOTT, (supra) note 6, § 7.10, at 252 ("voluntary manslaughter in most jurisdictions consists of an intentional homicide committed under extenuating circumstances which mitigate, though they do not justify or excuse, the killing" (emphasis added)); R. PERKINS & R. BOYCE, (supra) , at 83 (voluntary manslaughter covers "any killing with a person-endangering-state-of-mind that is neither murder nor innocent homicide") (footnote omitted); *fn20 id. at 104; 2 C. TORCIA, WHARTON'S § 153, at 236-37 (14th ed. 1979) ("voluntary manslaughter is an intentional killing in the heat of passion as the result of severe provocation. . . . killing, which could otherwise constitute murder, is mitigated to voluntary manslaughter" (emphasis added, footnotes omitted)); id. at 238 (for voluntary manslaughter liability to attach, the "defendant may act with the intent to kill or with any mental state which amounts to 'malice'; the malice is negated by the provocation and the offense is mitigated from murder to voluntary manslaughter" (emphasis added)). *fn21
The government agrees that homicides in which the perpetrator acts with a state of mind which, absent recognized mitigating circumstances, would render the killing murder constitute voluntary manslaughter. However, the government contends that voluntary manslaughter also encompasses another distinct category of killings, namely, homicides resulting when a defendant acts with the intent to cause any injury to or apply any force against the victim. Since a killing occurring under mitigating circumstances would rise to the level of voluntary manslaughter if the perpetrator acted with specific intent to cause serious bodily injury, the only killings included in the government's proposed definition not already encompassed by the above-discussed definition are those resulting from an act committed with intent to cause non-serious injury but which result in death. For several reasons, we must disagree with the government's assertion. Firstly, it would result in the adoption of an expanded definition of voluntary manslaughter at odds with the generally recognized common law understanding of that offense, as described above. Secondly, the government grounds its assertion in authority which does not markedly support its position. Thirdly, acceptance of the government's position would collide with the apparently universal classification, in jurisdictions which divide manslaughter into its voluntary and involuntary forms, of killings following a simple assault as involuntary, rather than voluntary, manslaughter. Finally, the government's position would brand a defendant as a "voluntary" killer where he acted with a mind free of any intent to kill or seriously wound and free of a degree of knowing recklessness making highly likely such a result. We think that both common law and authority make a death-oriented mental state the determinative dividing line between the two forms of manslaughter, which should reflect their differing connotations of culpability.
In support of its position that a killing is voluntary manslaughter whenever a death results from an act committed with the intent to apply any force against or inflict non-serious injury on the victim, the government invokes our opinion in United States v. Bradford, supra, 344 A.2d 208. In dealing with the specific problem we are presented with in these appeals -- the application of some force against a decedent -- the Bradford opinion is imprecise. Both parties invoke different parts of Bradford in support of their position, each rightfully finding language in the opinion which can be read to support their arguments. *fn22 A major purpose of our going en banc in these cases is to resolve the ambiguity in the Bradford opinion. We think that against the background of the common-law development of murder and manslaughter as set forth above, the language of the Bradford opinion invoked by the government must be read in context *fn23 and limited in its application more narrowly than the government would do.
We read Bradford as limiting the scope of voluntary manslaughter to killings where the perpetrator acts with a state of mind which, but for the presence of recognized mitigating factors, would render the killing malicious, and hence murder. The court expressly declared that "killings classified as voluntary manslaughter would in fact be second degree murder but for the existence of circumstances that in some way mitigate malice." Id. at 215 (emphasis added). Moreover, in the paragraph summarizing its Discussion of voluntary manslaughter in Bradford, the court stated that voluntary manslaughter "could more accurately be said to be (1) an unlawful killing of a human being (2) with malice which has been mitigated by the presence of circumstances judicially recognized as reducing the degree of criminality." Id. *fn24 Because a homicide resulting from an act committed with the intent to inflict only non-serious bodily injury would not be a killing with malice and would not constitute second-degree murder, such a killing could not constitute voluntary manslaughter as that offense was ultimately defined in Bradford. *fn25
Nor does authority from other jurisdictions cited by the government suggest a different Conclusion. The government relies in part on the Alabama Supreme Court's 1860 decision in McManus v. State, 36 Ala. 285 (1860). Although the court there did write that "voluntary manslaughter included all felonious homicides, less heinous than murder, which resulted directly from any unlawful force, aimed at, and applied to the party slain," 36 Ala. 285, 288 (1860), there was evidence in the case both that the defendant struck the fatal blow with malice and that he struck the blow in the heat of passion. Id. at 286. Moreover, in Harrington v. State, 83 Ala. 9, 16, 3 So. 425, 429 (1888), the Alabama Supreme Court expressly "modified" the McManus decision, suggesting that the language on which the government relies here, though perhaps "sufficient" in light of the evidence in McManus, is inappropriate "for general use and application." Id. at 13-14, 3 So. at 427. The Harrington court made clear that "the law does not pronounce the manslaughter to be voluntary merely because death ensues from the intentional application of mere unlawful force, such as a mere blow with the fist." Id. at 15-16, 3 So. at 428. However, a killing resulting from an "intention to do great bodily harm is sufficient" for voluntary manslaughter. Id. at 16, 3 So. at 428.
The government also seeks support from Wharton's 1907 treatise on homicide. F. WHARTON, THE LAW OF HOMICIDE (F. Bowlby 3d ed. 1907), cited in Bradford, supra, 344 A.2d at 214 nn.14 & 16. Although some general language there suggests that "unlawful force intentionally directed against [the victim] is sufficient to render the consummated act voluntary ," id. § 5, at 7, the authority for that proposition is the Alabama McManus decision as limited by Harrington. Id. at 7 nn.5 & 6. As such, we view Wharton's treatise as indicating that voluntary manslaughter may occur where one acts with a state of mind other than an intent to kill adequate to establish malice, such as intent to inflict serious bodily injury or conscious disregard of extreme risk to life. See supra note 21; cf. F. WHARTON, (supra) , § 166, at 265 (voluntary manslaughter may arise from the commission of an act "likely to endanger life"). *fn26
Finally, the government's contention that a homicide in which there is any intent to injure or apply force against the victim should be deemed voluntary manslaughter collides with the apparently near-universal classification, in jurisdictions which divide manslaughter into its voluntary and involuntary forms, of killings following a simple assault as involuntary, rather than voluntary, manslaughter. This division is made clear in the Bradford opinion itself. Despite the fact that in both instances there is an intent to injure or apply force to the victim, the Bradford opinion listed death "following an assault excessive correction of children by parents or teachers" as illustrations of involuntary manslaughters. F. WHARTON, (supra) at 215, at 339. Were the government's interpretation correct, the Bradford court would have included killings resulting from an assault or excessive correction of children as examples of voluntary manslaughter. Similarly, Wharton's treatise, upon which the government relies, also classifies killings resulting from assaults, in which there was clearly intent to inflict some, but not serious, bodily injury, as involuntary manslaughters. Id. § 215, at 339 ("one committing a minor assault upon another, not intending to kill, but accidentally doing so, is guilty of involuntary manslaughter"); id. at 340-41 ("a killing resulting from an assault by one person upon another is a killing in the commission of an unlawful act [and thus involuntary manslaughter], where, if the blow had not proved mortal, the assailant would have been subject to prosecution for assault and battery"). The treatment in Bradford and Wharton's treatise of a killing resulting from an assault or battery, such as a bare-fisted blow, not involving intent to kill or inflict serious bodily injury is not surprising; it reflects the traditional and uniform common law rule classifying such killings as involuntary, rather than voluntary, manslaughter. See 2 W. LAFAVE & A. SCOTT, (supra) note 6, § 7.13, at 296 ("it is almost universally held . . . that one is guilty of involuntary manslaughter who intentionally inflicts bodily harm upon another person," thereby causing an unintended and unforeseeable death (emphasis added)); MODEL PENAL CODE, supra, § 210.3, comment 8, at 78 & n.95 and cases cited ("it was an important feature of prevailing law at the time the Model Penal Code was drafted that one who caused the death of another by a simple battery was generally guilty of manslaughter or of involuntary manslaughter where that was a separate category" (emphasis added)); see also 2 W. BURDICK, (supra) , § 465a, at 203 (including instances of death caused by a blow by the fist or by a kick as illustrations of involuntary manslaughter). Indeed, in every reported case we have found from a jurisdiction which divides manslaughter into its voluntary and involuntary forms discussing killings resulting from the delivery of a single or a few blows, not administered with intent to kill or inflict serious bodily injury, such killings are classified as involuntary, rather than voluntary manslaughter. See, e.g., People v. Morgan, 275 Cal. App. 2d 603, 607-09, 79 Cal. Rptr. 911, 913-14 (1969) (affirming involuntary manslaughter conviction where defendant struck several blows against and committed an assault and battery against victim); People v. McManis, 122 Cal. App. 2d 891, 895-98, 266 P.2d 134, 136, 138 (Dist. Ct. App. 1969) (affirming involuntary manslaughter conviction where defendant struck deceased in the jaw, knocking him to ground, and co-defendant kicked deceased in the face); Wyrick v. State, 96 Ga. App. 847, 847, 102 S.E.2d 53, 54 (1958) (describing a death resulting from an assaultive blow "not likely have produced death" as involuntary manslaughter); People v. Woods, 80 Ill. App. 3d 56, 61-62, 35 Ill. Dec. 136, 398 N.E.2d 1086, 1089-91 (1979) (where defendant struck decedent four times in the head, ensuing death constituted involuntary manslaughter), aff'd, 81 Ill. 2d 537, 43 Ill. Dec. 733, 410 N.E.2d 866 (1980); People v. Parr, 35 Ill. App. 3d 539, 542, 341 N.E.2d 439, 442 (1976) (assailant who caused death by striking assailant with fist found guilty of involuntary manslaughter); Compton v. State, 250 Ind. 103, 110, 235 N.E.2d 181, 185 (1968) ("where one unlawfully strikes another, thus committing an unlawful assault and battery, from which death ensues, one is guilty of involuntary manslaughter"); Commonwealth v. Sheppard, 404 Mass. 774, 776-77, 537 N.E.2d 583, 584 (1989) (where defendant killed victim by striking him in the face, the killing was involuntary manslaughter); People v. Myers, 30 Mich. App. 409, 426, 186 N.W.2d 381, 390 (1971) (manslaughter by assault constitutes involuntary manslaughter); see also Harrington, supra, 83 Ala. at 14, 16, 3 So. at 427, 429 (reversing conviction for voluntary manslaughter where defendant caused death by intentionally directed blow against the decedent); State v. Barker, 128 W.Va. 744, 38 S.E.2d 346, 351 (1946) (reversing voluntary manslaughter conviction where defendant struck victim once, knocking her to the ground and causing death; while such a killing could be involuntary manslaughter, "a verdict of voluntary manslaughter will not lie"). Adoption of the government's position would apparently render our jurisdiction unique in American jurisprudence.
We must conclude, in conformity with the overwhelming weight of authority on the matter, that voluntary manslaughter involves only those homicides where the perpetrator's state of mind would constitute malice aforethought and the homicide murder, but for the presence of legally recognized mitigating circumstances. If the perpetrator's state of mind is not one which would constitute malice, the fact that he or she intends to inflict non-serious injury or otherwise direct force against the victim does not render a killing voluntary manslaughter. Thus, to the extent that a death resulting from conduct accompanied by an intent to cause something less than serious bodily injury rises to the level of an unlawful homicide, it is governed by the involuntary manslaughter doctrines to which we now turn.
E. Involuntary manslaughter
As described in the preceding subsection, voluntary manslaughter is a killing committed with an intent to kill or do serious bodily injury, or with a conscious disregard of an extreme risk of death or serious bodily injury, where the presence of mitigating factors precludes a determination that the killing was malicious. The absence of malice under these circumstances thus reduces the offense to one form of manslaughter. In contrast, where a killing is not committed with a specific intent to kill or do serious bodily injury, or in conscious disregard of an extreme risk of death or serious bodily injury, there is no question that the killing was without malice. *fn27 However, even such an unintentional or accidental killing is unlawful, and thus constitutes involuntary manslaughter, unless it is justifiable or excusable. Indeed, it is the absence of circumstances of justification or excuse which renders a non-malicious killing "unlawful." Accordingly, one key to distinguishing those unintentional killings which are unlawful, and hence manslaughter, from those to which no homicide liability attaches *fn28 is determining the circumstances under which a killing will be legally excused.
Generally, at common law, where a person kills another in doing a "lawful act in a lawful manner," the homicide is excusable. W. CLARK & W. MARSHALL, (supra) , § 275, at 371. As this phrase implies, two categories of unintentional killings were not excused and thus were manslaughter: killings in the course of lawful acts carried out in an unlawful, i.e., criminally negligent, *fn29 fashion, and killings in the course of unlawful, i.e., criminal, acts. *fn30
1. Criminal-negligence involuntary manslaughter
The law pertaining to the first category, which may be labelled "criminal-negligence" manslaughter, see supra note 29, has undergone considerable transformation, and the cases have steadily narrowed the range of conduct deemed sufficiently culpable to sustain a manslaughter conviction. In the thirteenth century, it appears that even a person who caused death "by misadventure," or in a completely non-negligent fashion, had no legal defense to a homicide charge. See Perkins, Malice Aforethought, supra note 16, at 539 n.23, 540. By the mid-eighteenth century, however, if a death-producing act "was done with due caution, or was accompanied only by slight negligence," the perpetrator lacked the "culpable negligence" required to render the homicide manslaughter. 3 J. STEPHEN, supra, at 76 (summarizing the views of a treatise published in 1762). Cf. 4 W. BLACKSTONE, (supra) , at* 192 (involuntary manslaughter occurs "where a person does an act, lawful in itself, but in an unlawful manner and without due caution and circumspection").
Under current law in the District of Columbia, one who unintentionally causes the death of another as the result of non-criminal conduct is guilty of involuntary manslaughter only where that conduct both creates "extreme danger to life or of serious bodily injury," and amounts to "a gross deviation from a reasonable standard of care." Faunteroy v. United States, 413 A.2d 1294, 1298-99 (D.C. 1980). Thus, provided it does not fall within the scope of the misdemeanor-manslaughter doctrine, conduct resulting in death is excused unless it creates an extreme risk of death or serious bodily injury. *fn31 Indeed, in our jurisprudence the only difference between risk-creating activity sufficient to sustain a "depraved heart" murder conviction and an involuntary reckless manslaughter conviction "lies in the quality of [the actor's] awareness of the risk." Dixon, supra note 12, 135 U.S. App. D.C. at 406, 419 F.2d at 293 (Leventhal, J., Concurring); see also Bradford, supra, 344 A.2d at 215 n.22 ("if [the actor] is aware of the risk, the crime is murder and not involuntary manslaughter. If he is not aware . . . and he should have been aware, the crime is involuntary manslaughter"). The gravity of the risk of death or serious bodily injury required in each case is the same. *fn32
2. Misdemeanor involuntary manslaughter
The second category of unexcused unintentional homicides are those occurring in the course of certain unlawful acts. Centuries ago, the "unlawful act" category of involuntary manslaughter included all killings occurring in the course of a criminal act not amounting to a felony, i.e., a misdemeanor. See 3 STEPHEN, (supra) , at 75 (quoting, and criticizing, the doctrine recorded in a 1762 treatise); see also 4 W. BLACKSTONE, (supra) , at *fn33 As time passed, however, the misdemeanor-manslaughter rule "came to be considered too harsh," and "the courts began to place limitations upon it." 2 W. LAFAVE & A. SCOTT, (supra) note 6, § 7.13, at 287. Thus, in many jurisdictions, a homicide occurring in the course of a misdemeanor is involuntary manslaughter only if the offense is malum in se, rather than malum prohibitum. *fn34 2 W. LAFAVE & A. SCOTT, (supra) note 6, § 7.13(c), at 287; R. PERKINS & R. BOYCE, (supra) , at 109; 2 C. TORCIA, (supra) , § 167, at 266-67. Where the misdemeanor manslaughter doctrine applies, involuntary manslaughter liability attaches even where the defendant does not act with the degree of recklessness ordinarily required for involuntary manslaughter predicated on criminally negligent behavior. In effect, the defendant's intentional commission of a misdemeanor supplies the culpability required to impose homicide liability.
In the District of Columbia, the misdemeanor-manslaughter doctrine has developed along substantially similar lines. Although the doctrine is established in the law in this jurisdiction, we have been mindful of the danger that the traditional misdemeanor-manslaughter rule, imposing involuntary manslaughter liability whenever a killing occurs in the commission of a misdemeanor malum in se, might cast too wide a net. *fn35 The risk of an unreasonable application of involuntary manslaughter liability is especially pronounced in view of the massive increase since the early common-law era in the number and forms of misdemeanors. In Bradford v. United States, supra, 344 A.2d at 215, we described as a variety of involuntary manslaughter a killing occurring "as the result of an unlawful act which is a misdemeanor involving danger of injury." The misdemeanor-manslaughter rule was applied in United States v. Walker, 380 A.2d 1388 (D.C. 1977) ("Walker I"), a case in which the defendant, while allegedly carrying a pistol without a license, dropped it in the stairwell of an apartment building. The gun discharged, fatally wounding a bystander. Id. at 1389. Concluding that carrying a pistol without a license in violation of D.C. COde 22-3204 (1989), where the offense "resulted in the shooting and death of another," is a misdemeanor "dangerous in and of itself," the court reversed the trial court's dismissal of the involuntary manslaughter indictment brought against the defendant. Id. at 1391. *fn36 We think that the category of misdemeanors dangerous in and of themselves encompasses misdemeanors which bear an inherent danger of physical injury, and includes simple assault, D.C. Code § 22-504 (1989), the misdemeanor at issue in this case.
This limitation, however, is incomplete. Although some misdemeanors, at least when viewed in the abstract, prohibit activity which seems inherently dangerous, they may also reach conduct which might not pose such danger. A special difficulty arises in the case of simple assault, as presented here, because that misdemeanor is designed to protect not only against physical injury, but against all forms of offensive touching, see Guarro v. United States, 99 U.S. App. D.C. 97, 99-100, 237 F.2d 578, 580-81 (1956) (offensive sexual touching); Ray v. United States, 575 A.2d 1196, 1199 (D.C. 1990) (spitting on another person), and even the mere threat of such touching. Robinson v. United States, 506 A.2d 572, 574 (D.C. 1986) (intent to frighten). To hold a defendant liable for involuntary manslaughter where a death freakishly results from spitting at another, putting one's hand on another in a sexually offensive manner, or lightly tapping another on the face, would create too severe an attenuation of the link between the criminal sanction imposed and the defendant's culpability. In such circumstances, there is no foreseeable risk of bodily injury of any appreciable sort.
Accordingly, the fact that death results in the commission of what is classified as an inherently dangerous misdemeanor, is alone insufficient to establish guilt of misdemeanor involuntary manslaughter. Rather, the defendant must commit the misdemeanor in a way which is dangerous under the particular circumstances of the case. See 2 W. LAFAVE & A. SCOTT, (supra) note 6, § 7.13(e), at 298 ("the question [in unlawful-act involuntary manslaughter cases] ought to be not whether the crime is generally dangerous, but whether the defendant's conduct in the particular death-causing situation was under the circumstances dangerous" (emphasis added)). *fn37 We think a misdemeanor will be dangerous under the circumstances if the manner of its commission entails a reasonably foreseeable *fn38 risk of appreciable physical injury. *fn39 If the manner in which an inherently dangerous misdemeanor is committed creates such a foreseeable risk of appreciable physical injury, the defendant should bear the consequences of criminal homicide if the result is not just bodily injury but death itself. *fn40 A killing resulting from a misdemeanor which does not satisfy the standard just described will be excused. *fn41
In sum, it can be seen that as a whole, the law of homicide is broadly symmetrical. The four mental states recognized as malicious for purposes of second-degree murder exist in manslaughter, as well. One who acts with the specific intent to kill or to inflict serious bodily injury is guilty of murder. If those two states of mind are accompanied by recognized circumstances of mitigation, however, the crime is voluntary manslaughter. (It is conceivable that voluntary manslaughter liability might arise where one, acting under circumstances of mitigation, consciously disregards an extreme risk of death of serious bodily injury, but such scenarios seem highly improbable.) The other two malicious mental states also have corollaries in the involuntary manslaughter category. One who acts in conscious disregard of an extreme risk of death or serious bodily injury is guilty of murder, but if he or she is only unreasonably unaware of such a risk, the crime is involuntary manslaughter. Finally, one who kills in the course of a felony enumerated in D.C. Code § 22-2401 is guilty of murder, but one who kills in the commission of a misdemeanor, cf. supra note 33, under the circumstances described above is guilty of involuntary manslaughter.
IV. THE INSTANT APPEALS
Guided by the foregoing Discussion of the law of manslaughter, we turn now to an assessment of the manslaughter instructions in appellants' cases. We conclude that the jury instructions given in each case were erroneous.
A. Appellant Comber
Both the voluntary and involuntary manslaughter instructions given in appellant Comber's case misstated the law as above explicated in significant respects. *fn42 With regard to voluntary manslaughter, the trial court's instruction erroneously defined the mental states required for the offense. The trial court instructed the jury that to prove voluntary manslaughter, the government had to prove that the defendant committed an unjustified or unexcused killing, and that the defendant intended to commit the acts which caused death. The trial court then explained that to prove a killing was without justification or excuse, the government had to prove that the defendant did not kill in self-defense. In effect, then, the trial court instructed the jury that as long as he was not acting in self-defense, appellant Comber was guilty of voluntary manslaughter if he intended to commit some act which in fact caused Joseph Pinkney's death, no matter how unexpectedly. As is plain from our Discussion above, however, to be guilty of voluntary manslaughter, a person must intend to kill, intend to inflict serious bodily injury, or act in conscious disregard of an extreme risk of death or serious bodily injury. Although a voluntary manslaughter conviction is proper only where the defendant acts with a state of mind which, but for the presence of mitigating factors, would support a second-degree murder conviction, the instructions in appellant Comber's case permitted the jury to find him guilty if it found only that he intended to commit some act which resulted in death. *fn43 The instruction thus allowed the jury to convict Comber of voluntary manslaughter where his mental state and conduct would not constitute that offense. *fn44
The involuntary manslaughter instruction given in Comber's case was also erroneous. The instruction described the criminal negligence variety of involuntary manslaughter, not the misdemeanor-manslaughter variety. Had the trial court not modified the standard "redbook" instruction to limit involuntary manslaughter only to deaths resulting from unintentional acts, it would properly have defined the elements of criminal negligence involuntary manslaughter. *fn45 The instruction properly described the degree to which appellant's conduct had to deviate from a reasonable person standard and the gravity of the risk required to support an involuntary manslaughter conviction. However, the addition that the jury could find appellant guilty of involuntary manslaughter only if it concluded that appellant Comber's conduct was not intentional was an incorrect statement of law. Although it is true that an involuntary manslaughter conviction is appropriate only where death is unintentional, the offense is not limited to killings resulting from death-producing conduct which is unintentional. In fact, many intentional acts, provided that they either involve the creation of the requisite risk of death or constitute inherently dangerous misdemeanors committed in such a way that appreciable bodily injury is a foreseeable result, may constitute involuntary manslaughter. The instructions given in appellant Comber's case thus precluded the jury from finding him guilty of involuntary manslaughter under circumstances where such a verdict might have been appropriate. *fn46
B. Appellant Hayward
Two types of instructional error similarly occurred at appellant Hayward's trial. First, the trial court gave the standard voluntary manslaughter instruction, which erroneously defines that offense. *fn47 Second, the trial court refused to give an involuntary manslaughter instruction upon the defendant's request.
Unlike the voluntary manslaughter instruction given in appellant Comber's case, the voluntary manslaughter instruction in appellant Hayward's case contained no description of the mental state required for the offense but included a definition of justification and excuse. The instruction given to the jury thus contained, in effect, the classic common law definition of the undifferentiated crime of manslaughter. As a voluntary manslaughter instruction, it is thus over-inclusive. The instruction makes voluntary manslaughter of all unexcused homicides, including involuntary manslaughter of both the criminal negligence and misdemeanor varieties. Indeed, given the instruction's truncated description of the circumstances which would excuse a homicide, *fn48 the instruction might even permit a voluntary manslaughter conviction in cases where no homicide liability would be appropriate. Furthermore, under the instructions given by the trial court, the jury was authorized to find Hayward guilty of voluntary manslaughter without ever finding that he acted with the mental state required for that offense.
In addition, apparently persuaded by the prosecutor's argument that involuntary manslaughter is restricted to cases in which death results from an unintentional act, the trial court ruled that an involuntary manslaughter instruction would be inappropriate. However, involuntary manslaughter is by no means limited to cases in which death results from an unintentional act. An intentional act or intentional conduct done with no aim to cause death or serious bodily injury will constitute involuntary manslaughter if it creates an extreme risk of death or serious bodily injury and amounts to non-conscious recklessness. Alternatively, an intentional act which causes death is involuntary manslaughter if it is a misdemeanor dangerous in and of itself which is committed in a manner such that appreciable bodily injury to the victim was a reasonably foreseeable result. The evidence in appellant Hayward's case was sufficient to support an involuntary manslaughter jury instruction under either theory. Day v. United States, 390 A.2d 957, 962 (D.C. 1978), overruled on other grounds, Graves v. United States, 490 A.2d 1086 (D.C. 1984) (en banc) (lesser-included offense instruction is appropriate where there is any evidence, however weak, sufficient to support a Conclusion that the defendant is guilty of the lesser rather than the greater offense). Appellant Hayward was entitled to an involuntary manslaughter instruction which the trial court declined to give. *fn49
At bottom, the key element of Discussion in this case is not whether appellants were improperly convicted of manslaughter, but whether they were convicted of the proper type of manslaughter. See Williams v. United States, 105 U.S. App. D.C. 348, 267 F.2d 625 (1959) (per curiam) (where defendant struck decedent who fell to the ground, hit his head, and later died, court affirmed conviction for undifferentiated crime of manslaughter). Because the punishment for both forms of manslaughter is governed by a single statutory provision, at first blush it may seem that a proper Disposition of these cases might simply be to remand for resentencing for involuntary, rather than voluntary, manslaughter. However, appellant Comber may be entitled to a new trial on a distinct ground of instructional error. See supra note 46. We recognize, moreover, that to the extent appellants could have been convicted of involuntary, rather than voluntary, manslaughter, it might well have been on the basis of a misdemeanor-manslaughter theory. *fn50 Just as the jury must decide in a felony-murder case that the defendant committed the underlying felony, Turner v. United States, 459 A.2d 1054, 1057 (D.C. 1983), so too should the jury decide in a misdemeanor-manslaughter case that the defendant committed the underlying misdemeanor and in such a manner that appreciable physical injury was reasonably foreseeable. Conversely, in both cases, the evidence could have supported a jury finding that appellants acted with a state of mind which would have amounted to malice, but that each appellant killed in the heat of passion so that the killing was mitigated to voluntary manslaughter. Because the evidence was sufficient to support such a Conclusion, the government is entitled to retry both appellants on the charge of voluntary manslaughter. We conclude under all the circumstances that retrial is appropriate for both appellants. *fn51
Reversed and remanded.