BLAIR MOODY, JR., J.
Ronald Tyrone Wilder and codefendant Lee Chester Butts were charged with first-degree murder committed in the perpetration or attempted perpetration of a robbery (first-degree felony murder), MCL 750.316; MSA 28.548, and armed robbery, MCL 750.529; MSA 28.797. Following a jury trial, defendant Wilder and codefendant Butts were found guilty of both offenses. The court sentenced defendant to life imprisonment for the first-degree felony-murder conviction and 15 to 30 years for the armed robbery conviction.
The first-degree murder statute provided, before it was amended by 1980 PA 28:
"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life." MCL 750.316; MSA 28.548.
The armed robbery statute provides:
"Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years." MCL 750.529; MSA 28.797.
Defendant appealed to the Court of Appeals on several grounds. A majority of the Court affirmed the conviction of first-degree felony murder. The Court found that no specific instruction on malice was required. Judge RILEY dissented from this portion of the opinion. However, the Court unanimously agreed that defendant's armed robbery conviction must be vacated on the basis that defendant could not properly be convicted of both first-degree felony murder and the underlying felony of armed robbery without violating the prohibition against double jeopardy. 82 Mich. App. 358; 266 N.W.2d 847 (1978).
Defendant applied to us, and we granted leave to appeal, on the question whether Michigan recognizes a felony-murder rule permitting malice to be supplied from the intent to commit the felony underlying the murder. The prosecutor filed a cross-appeal, and we granted leave to appeal on the question whether defendant was placed twice in jeopardy by being convicted and sentenced both for first-degree felony murder and the underlying felony of armed robbery. 403 Mich. 816 (1978).
We concurrently granted leave in another case involving the same basic question. People v Jankowski, 408 Mich. 79; 289 N.W.2d 674 (1980). The cases were argued consecutively before the Court.
With respect to the first issue, we hold that defendant's conviction of first-degree felony murder must be vacated on the authority of the Court's decision in People v Aaron, 409 Mich. 672; 299 N.W.2d 304 (1980). Although the instant case was not argued and submitted together with Aaron and its companion cases, leave to appeal was granted on the same day leave was granted in Aaron, the question presented was essentially identical to the question in Aaron and its companions, and the cases were argued at the same session of this Court. Therefore, we treat this case as a companion to People v Aaron for purposes of applying the rule stated therein.
The trial court's first-degree felony-murder instruction erroneously defined the element of malice. Thus, if charged again with first-degree felony murder, defendant must be retried under proper instruction.
I
The evidence in this case indicated that the victim, Roosevelt Reaves, was killed by a single gunshot wound of the head inflicted by codefendant Butts during a scuffle in the hallway of the victim's apartment building. Defendant and codefendant Butts were apparently bent on obtaining money from the victim when the shooting occurred. A female acquaintance of the victim was present in the apartment when he responded to a ringing of the doorbell. She testified that she saw the victim, the defendant, and codefendant Butts in the apartment hallway. She stated that Butts had a gun and ordered her and the victim to lie on the floor. The victim struggled with the assailants and made his way to the door. At that point, the witness said, she heard a shot and saw the victim fall. The police arrived shortly afterward. Defendant was arrested four days later.
II
The felony-murder rule has traditionally allowed courts to supply the element of malice in felony-murder prosecutions from the intent to commit the underlying felony. In People v Aaron, this Court resolved the status of the felony-murder rule in Michigan jurisprudence. We first determined that Michigan has never enacted a felony-murder statute which incorporated the rule:
See generally Moreland, Law of Homicide (Indianapolis: Bobbs-Merrill, 1952), pp 42-50; LaFave Scott, Criminal Law, § 71, pp 545-561; Perkins, Criminal Law (2d ed), pp 37-45; 1 Anderson, Wharton's Criminal Law and Procedure (1957 ed), § 251, pp 539-543.
"Michigan does not have a statutory felony-murder doctrine which designates as murder any death occurring in the course of a felony without regard to whether it was the result of accident, negligence, recklessness or willfulness. Rather, Michigan has a statute which makes a murder occurring in the course of one of the enumerated felonies a first-degree murder:
"`Murder which is perpetrated by means of poison, lying in wait, or other wilful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life.' MCL 750.316; MSA 28.548.
* * *
"Thus, we conclude that Michigan has not codified the common-law felony-murder rule. The use of the term `murder' in the first-degree statute requires that a murder must first be established before the statute is applied to elevate the degree." People v Aaron, 717-718, 721.
We then decided that in the absence of a statutory felony-murder rule the common law must be consulted. Const 1963, art 3, § 7. Under the direct challenge to the rule, we held that the common-law doctrine should be abolished in Michigan to the extent previously in force:
"Our review of Michigan case law persuades us that we should abolish the rule which defines malice as the intent to commit the underlying felony. Abrogation of the felony-murder rule is not a drastic move in light of the significant restrictions this Court has already imposed. Further, it is a logical extension of our decisions * * *.
"We believe that it is no longer acceptable to equate the intent to commit a felony with the intent to kill, intent to do great bodily harm, or wanton and willful disregard of the likelihood that the natural tendency of a person's behavior is to cause death or great bodily harm. * * * In a charge of felony murder, it is the murder which is the harm which is being punished. A defendant who only intends to commit the felony does not intend to commit the harm that results and may or may not be guilty of perpetrating an act done in wanton or willful disregard of the plain and strong likelihood that such harm will result. Although the circumstances surrounding the commission of the felony may evidence a greater intent beyond the intent to commit the felony, or a wanton and willful act in disregard of the possible consequence of death or serious injury, the intent to commit the felony, of itself, does not connote a `man-endangering-state-of-mind'. Hence, we do not believe that it constitutes a sufficient mens rea to establish the crime of murder.
"Accordingly, we hold today that malice is the intention to kill, the intention to do great bodily harm, or the wanton and willful disregard of the likelihood that the natural tendency of defendant's behavior is to cause death or great bodily harm. We further hold that malice is an essential element of any murder, as that term is judicially defined, whether the murder occurs in the course of a felony or otherwise. The facts and circumstances involved in the perpetration of a felony may evidence an intent to kill, an intent to cause great bodily harm, or a wanton and willful disregard of the likelihood that the natural tendency of defendant's behavior is to cause death or great bodily harm; however, the conclusion must be left to the jury to infer from all the evidence." People v Aaron, 727-729.
What is henceforth required in all first-degree murder prosecutions in this state is that the trial court include within its instruction to the jury the element of malice as defined in Aaron. The underlying felony itself will no longer per se provide the element of malice in such prosecutions.
In the instant case, the trial court gave the following instructions as to murder:
"Now as to the first count in the information, that is murder first-degree, felony, that means this: was there a robbery or attempt[ed] robbery, and while the robbery or the attempt[ed] robbery was going on was Mr. Roosevelt Reaves killed and murdered?
"Now if the prosecution has shown you that these two men were acting in concert, that is together, and that they aided and assisted each other in the perpetration or the commission of a robbery, or the commission of attempt[ed] robbery, and Mr. Reaves was killed as a result of that, they have proven to you beyond a reasonable doubt that this is first-degree murder, felony. The felony being the robbery.
"Now I know you have heard of a premeditated killing. We are not concerned with that in this case, because the law supplies the premeditation and the deliberation if a person is killed in the perpetration of a robbery, or the attempt[ed] perpetration of a robbery. The prosecution does not have to prove premeditation and deliberation, it is automatically supplied because the law says that, if a person is killed in the perpetration or attempt[ed] perpetration of a robbery that is first-degree murder, felony. But you must be satisfied beyond a reasonable doubt that there was a robbery or the attempt[ed] perpetration of a robbery committed by these defendants, not by somebody else. And that's important. The prosecution must prove that they committed that act or attempted to commit that act of robbery and during that Mr. Reaves was killed."
It is apparent that the trial court's instruction violates the dictates of Aaron. The trial court assumed that a killing perpetrated during the commission of an armed robbery constitutes first-degree felony murder. This approach is erroneous. Therefore, the decision of the Court of Appeals is reversed.
III
The instant case presents a second question which is similar to the one resolved in this Court's decision of People v Jankowski, 408 Mich. 79; 289 N.W.2d 674 (1980). What we must determine here on similar principles is whether defendant Wilder was deprived of his constitutional right not to be placed twice in jeopardy for the same act when he was convicted and sentenced both for first-degree felony murder and the underlying felony of armed robbery. See US Const, Ams V, XIV; Const 1963, art 1, § 15.
"[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." US Const, Am V.
"No person shall be subject for the same offense to be twice put in jeopardy." Const 1963, art 1, § 15.
See generally, Comment, Statutory Implementation of Double Jeopardy Clauses: New Life For a Moribund Twice In Jeopardy, 75 Yale LJ 262 (1965); Sigler, A History of Double Jeopardy, 7 Am J Legal Hist 283 (1963); Recent Developments, Criminal Law — Multiple Punishment Under the Crime Control Act — A Need for Reexamination of Wharton's Rule and Double Jeopardy, 52 Wash. L Rev 142 (1976).
We hold that conviction and sentence for both first-degree felony murder and the underlying felony violates the state constitutional prohibition against double jeopardy, as the evidence needed to prove first-degree felony murder requires proof of the underlying lesser included felony.
My colleague suggests that there is an analytical distinction between logically included offenses and legislatively determined included offenses. Whether an offense is a logically included or legislatively included offense, the offense is the "same" offense for double jeopardy purposes under Blockburger v United States, 284 U.S. 299; 52 S Ct 180; 76 L Ed 306 (1932). See Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374, 406-407; 280 N.W.2d 793 (1979) (KAVANAGH, J., dissenting), app dis sub nom Brintley v Michigan, 444 U.S. 948; 100 S Ct 418; 62 L Ed 2d 317 (1979). First-degree felony murder requires proof of the underlying felony. See Whalen v United States, 445 U.S. 684; 100 S Ct 1432; 63 L Ed 2d 715 (1980). Nor does this suggested approach alter the analysis under our state constitutional prohibition against double jeopardy. The legislatively determined lesser included offense, the underlying felony, is a necessary prerequisite to a first-degree felony-murder conviction and, on the facts of this case, renders them the "same" offense.
A
The guarantee against twice being put in jeopardy under the United States Constitution was first made applicable to the states in the relatively recent case of Benton v Maryland, 395 U.S. 784, 794; 89 S Ct 2056; 23 L Ed 2d 707 (1969). At the same time, in an allied case, the Supreme Court enunciated the proper scope of Federal protection:
"The Court has held today, in Benton v Maryland, that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. That guarantee has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v Pearce, 395 U.S. 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
In the instant case, we deal with imposition of multiple punishment.
See Schwartz, Multiple Punishment for the "Same Offense": Michigan Grapples with the Definitional Problem, 25 Wayne L Rev 825 (1979).
At the outset, we recognize that the statutes with which we deal are devoid of any express or reasonably ascertainable legislative intent to create more than a single crime or punishment. To the extent that legislative intent is not entirely free of doubt, the doubt must be resolved in favor of lenity. See Whalen v United States, 445 U.S. 684, 694; 100 S Ct 1432; 63 L Ed 2d 715 (1980); Simpson v United States, 435 U.S. 6, 14-15; 98 S Ct 909; 55 L Ed 2d 70 (1978); United States v Bass, 404 U.S. 336, 347; 92 S Ct 515; 30 L Ed 2d 488 (1971). We are therefore confronted with a different constitutional concern than that addressed in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979), app dis sub nom Brintley v Michigan, 444 U.S. 948; 100 S Ct 418; 62 L Ed 2d 317 (1979). The question presently before this Court involves "the traditional application of double jeopardy protection as a restraint on courts and prosecutors imposing double punishment for a single criminal act". People v Jankowski, 86.
B
In such instances, Michigan has adopted a standard of review which focuses upon the proof of facts necessary to conviction. Where the proof adduced at trial indicates that one offense is a necessarily or cognate lesser included offense of the other, then conviction of both the offenses will be precluded. People v Cook, 236 Mich. 333; 210 345 N.W. 296 (1926); People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976); People v Stewart (On Rehearing), 400 Mich. 540; 256 N.W.2d 31 (1977); People v Jankowski, 86.
See People v Ora Jones, 395 Mich. 379, 387; 236 N.W.2d 461 (1975); 4 Anderson, Wharton's Criminal Law and Procedure (1957 ed), § 1799, pp 631-632.
In some jurisdictions, the same general conclusion has been reached, though under slightly different legal tests. See, e.g., Newton v State, 280 Md. 260; 373 A.2d 262 (1977); State ex rel Wikberg v Henderson, 292 So.2d 505 (La, 1974); State v Thompson, 280 N.C. 202; 185 S.E.2d 666 (1972); State v Thomas, 114 N.J. Super. 360; 276 A.2d 391 (1971), modified 61 N.J. 314; 294 A.2d 57 (1972); Ex Parte Jewel, 535 S.W.2d 362 (Tex Crim App, 1976); Ronzani v State, 24 Wis.2d 512; 129 N.W.2d 143 (1964).
Other states have reached the opposite conclusion. See, e.g., State v Clayton, 109 Ariz. 587; 514 P.2d 720 (1973); Turner v State, 248 Ark. 367; 452 S.W.2d 317 (1970), rev'd on other grounds sub nom Turner v Arkansas, 407 U.S. 366; 92 S Ct 2096; 32 L Ed 2d 798 (1972); Slater v State, 316 So.2d 539 (Fla, 1975); State v Briggs, 533 S.W.2d 290 (Tenn, 1976).
In resolving the question before us, some courts have referred to the doctrine of "merger". See, e.g., State v Woods, 286 N.C. 612; 213 S.E.2d 214 (1975), vacated on other grounds sub nom Woods v North Carolina, 428 U.S. 903; 96 S Ct 3207; 49 L Ed 2d 1208 (1976); State v Hubbard, 123 N.J. Super. 345; 303 A.2d 87 (1973); State v Carlson, 5 Wis.2d 595; 93 N.W.2d 354 (1958).
At common law, the doctrine of merger was a specialized rule which applied when the same criminal act was both a felony and a misdemeanor. In such a case, the misdemeanor merged in the felony and only the felony was punishable. See 22 CJS, Criminal Law, § 10, pp 42-46. Michigan has abolished the doctrine of merger by statute. See MCL 768.4; MSA 28.1027. See also People v Causley, 299 Mich. 340, 347; 300 N.W. 111 (1941).
More recently, however, some jurisdictions have adopted the once specialized common-law merger to a more general application in double jeopardy analysis. See, e.g., Chittum v State, 1 Md. App 205, 210-211; 228 A.2d 628, 631 (1967); Lievers v State, 4 Md. App. 219, 221; 242 A.2d 178, 179 (1968). Under this modern interpretation, the term "merger" now refers to cases where "one crime necessarily involves another". Commonwealth ex rel Moszczynski v Ashe, 343 Pa. 102, 104; 21 A.2d 920, 921 (1941), quoted in Commonwealth v Sparrow, 471 Pa. 490, 504; 370 A.2d 712, 719 (1977), overruled Commonwealth v Tarver, 493 Pa. 320; 426 A.2d 569 (1981) (robbery is the same offense as first-degree felony murder); State v Honie, 310 A.2d 872, 873 (Del, 1973). The purpose of this doctrine is to preclude multiple convictions and punishments. People v Cassidy, 40 N.Y.2d 763, 767; 358 N.E.2d 870, 873; 390 N.Y.S.2d 45 (1976); State v DeSanto, 157 N.J. Super. 452, 464; 384 A.2d 1169, 1176 (1978).
In Michigan, it is clear that the Court has adopted what is fundamentally a similar test. See People v Cook, 236 Mich. 333, 335-336, 338; 210 N.W. 296 (1926); People v Martin, 398 Mich. 303, 307-310; 247 N.W.2d 303 (1976); People v Stewart (On Rehearing), 400 Mich. 540, 547-549; 256 N.W.2d 31 (1977); People v Jankowski, 86. However, we focus upon the technical concept of necessarily and cognate lesser included offenses and the proof of facts presented at trial. See People v Ora Jones, 387. Thus, Michigan employs the same basic concept known as merger in some other jurisdictions; yet we do not denominate the principle as such.
According to the evidence produced at trial in this matter, the felony of armed robbery was an underlying offense of the murder committed by these defendants. The underlying felony has been found by this Court to be a necessary element of every prosecution for first-degree felony murder:
"We hold that there are lesser included offenses to first-degree felony-murder. Second-degree murder is always a lesser included offense of first-degree murder. First-degree murder is second-degree (common-law) murder plus an element, viz., either premeditation or the perpetration or attempt to perpetrate an enumerated felony. People v Allen, 390 Mich. 383; 212 N.W.2d 21 (1973)." People v Carter, 395 Mich. 434, 437-438; 236 N.W.2d 500 (1975).
Under Michigan authority, the fact that the elements of first-degree felony murder do not in every instance require or include the elements of armed robbery does not mean the offense of armed robbery is not necessarily included in the felony murder here. It is recognized that the underlying felony might be characterized as a cognate lesser included offense, not a necessarily included offense. See State v Thompson, 280 N.C. 202, 215-216; 185 S.E.2d 666, 675 (1972). Though theoretically arguable, such a position is irrelevant when the legal analysis depends not upon the theoretical elements of the offense but upon proof of facts actually adduced. We stated in People v Jankowski, 91:
"For purposes of the double jeopardy analysis, as a matter of state constitutional law, the question is not whether the challenged lesser offense is by definition necessarily included within the greater offense also charged, but whether, on the facts of the case at issue, it is."
In this case, proof required to convict of first-degree felony murder necessarily included first proving culpability as to the underlying felony. In this regard, the trial court correctly instructed the jury:
"[Y]ou must be satisfied beyond a reasonable doubt that there was a robbery or the attempt[ed] perpetration of a robbery committed by these defendants, not by somebody else. And that's important. The prosecution must prove that they committed that act or attempted to commit that act of robbery and during that Mr. Reaves was killed."
The fact implicit in the double-jeopardy lesser included offense analysis is that the greater crime of first-degree felony murder cannot have been committed without necessarily committing the underlying felony element of armed robbery. Defendant Wilder and codefendant Butts must necessarily have been found guilty of armed robbery or attempted armed robbery before any conviction of first-degree felony murder could arise incident to the robbery.
Confronted with a similar situation in People v Martin, this Court stated:
"A defendant may be charged and tried for each act that constitutes a separate crime. However, when tried for an act which includes lesser offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense. The prohibition against multiple punishment for the same crime cannot be avoided by the form of the charge. `The form of pleading cannot assume such importance that it will permit defendant to be convicted of both the included and greater offense.' People v Greer, 30 Cal.2d 589, 599; 184 P.2d 512, 518 (1947). Accord, United States v Belt, 516 F.2d 873 (CA 8, 1975), cert den 423 U.S. 1056; 96 S Ct 790; 46 L Ed 2d 646 (1976).
"The guarantee against double jeopardy protects against not only a second prosecution for the same offense, but it also `protects against multiple punishments for the same offense'. North Carolina v Pearce, 395 U.S. 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
"`[T]he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.' Ex Parte Lange, 85 US (18 Wall) 163, 173; 21 L Ed 872 (1874).
"Accord, State v Waldenburg, 9 Wn. App. 529; 513 P.2d 577 (1973); Gallinaro v Commonwealth, 362 Mass. 728; 291 N.E.2d 420 (1973). See also People v Anderson, 62 Mich. App. 475; 233 N.W.2d 620 (1975), [remanded 406 Mich. 987 (1979)]." 398 Mich. 309-310.
Consequently, defendant's conviction of both first-degree felony murder and the underlying felony of armed robbery constitutes reversible error under existing Michigan authority.
Question may arise as to the effect, if any, of our decision in People v Aaron on the analysis of double jeopardy in cases involving first-degree felony murder. In Aaron, we have determined that conviction of first-degree felony murder in Michigan requires proof of every element of murder, including malice. Though the trial court did not properly instruct on malice in this case, it did properly instruct that proof of armed robbery was a necessary element of first-degree felony murder.
Pursuant to Aaron, proof of malice is necessary to constitute murder under the first-degree murder statute. However, proof of the underlying felony is also necessary to raise second-degree murder to first-degree murder. Consequently, the felony still remains as a necessary element to the statutory offense and its proof is required for conviction. The double jeopardy analysis is thus left unaffected by the Aaron decision.
C
The decision we reach in this case is fundamentally consistent with existing authority of the United States Supreme Court. A lesser included offense principle was employed recently to invalidate an Ohio defendant's conviction in successive proceedings for joyriding and auto theft arising from the same criminal incident. Brown v Ohio, 432 U.S. 161, 168; 97 S Ct 2221; 53 L Ed 2d 187 (1977).
Some confusion may exist over the use of various tests to establish a double jeopardy violation in Federal and state courts. Basically, there are few significant variances between the Federal test and our own. However, some differences do exist and should be noted.
For instance, Michigan has adopted a distinct constitutional position from the Federal courts as pertains to questions of multiple prosecution. See North Carolina v Pearce, 395 U.S. 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969). In this regard, Michigan has implemented the minority position espoused in Justice Brennan's "same transaction" analysis in Ashe v Swenson, 397 U.S. 436, 453-454; 90 S Ct 1189; 25 L Ed 2d 469 (1970) (Brennan, J., concurring). The rule in Michigan as to multiple prosecution is that all crimes arising from the same transaction must be prosecuted in a single proceeding, except under closely circumscribed conditions. See People v White, 390 Mich. 245; 212 N.W.2d 222 (1973). The test we employ in this instance is slightly more protective of defendant's double jeopardy right than the collateral estoppel analysis used by a majority of the Federal Court in Ashe.
Similarly, the test concerning multiple punishment under our constitution has developed into a broader protective rule than that employed in the Federal courts. Under Federal authority, the Supreme Court established the "required evidence" test enunciated in Blockburger v United States, 284 U.S. 299; 52 S Ct 180; 76 L Ed 306 (1932). See also its original expression in Morey v Commonwealth, 108 Mass. 433 (1871). In Blockburger, the Court outlined their test:
"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. 304.
This approach isolates the elements of the offense as opposed to the actual proof of facts adduced at trial. See Harris v United States, 359 U.S. 19, 23; 79 S Ct 560; 3 L Ed 2d 597 (1959); United States v Kramer, 289 F.2d 909, 913 (CA 2, 1961). Under this test, convictions of two criminal offenses arising from the same act are prohibited only when the greater offense necessarily includes all elements of the lesser offense. Accordingly, conviction of both offenses is precluded only where it is impossible to commit the greater offense without first having committed the lesser offense. From the perspective of lesser included offenses, the Supreme Court in cases concerning double jeopardy has thus adhered to the common-law definition of such offenses. See People v Ora Jones, 387.
The Federal test in Blockburger can thus be distinguished from this Court's approach in two principal ways. First, we find the proper focus of double jeopardy inquiry in this area to be the proof of facts adduced at trial rather than the theoretical elements of the offense alone. Proof of facts includes the elements of the offense as an object of proof. Yet, the actual evidence presented may also determine the propriety of finding a double jeopardy violation in any particular case. See People v Martin, 309; People v Stewart, 548; People v Jankowski, 91.
Second, we have held that double jeopardy claims under our constitution may prohibit multiple convictions involving cognate as well as necessarily included offenses. People v Jankowski, 91.
Use of this principle by the Supreme Court can be traced back to one of the earliest decisions of the Court in this area. In re Hans Nielsen, 131 U.S. 176; 9 S Ct 672; 33 L Ed 118 (1889). Relying upon the original test discussed in Morey, the Court determined that a prior conviction of unlawful cohabitation precluded a subsequent conviction of adultery because the former offense was an "essential and principal ingredient of adultery" and conviction of the greater offense barred conviction of the lesser included offense.
Further, the Supreme Court confronted essentially the same question we face now in the context of successive prosecution in Harris v Oklahoma, 433 U.S. 682; 97 S Ct 2912; 53 L Ed 2d 1054 (1977). The defendant in Harris was convicted of felony murder for killing a grocery store clerk during a robbery and then prosecuted for robbery with firearms. In reversing the subsequent conviction of the lesser included offense, the Court made the following statement:
"When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one. In re Hans Nielsen, 131 U.S. 176; 9 S Ct 672; 33 L Ed 118 (1889); cf. Brown v Ohio, supra, 432 U.S. 161. `[A] person [who] has been tried and convicted for a crime which has various incidents included in it, * * * cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.' In re Nielsen, supra, 131 U.S. 188. See also Waller v Florida, 397 U.S. 387; 90 S Ct 1184; 25 L Ed 2d 435 (1970); Grafton v United States, 206 U.S. 333, 352; 27 S Ct 749; 51 L Ed 1084 (1907)." Harris v Oklahoma, 682-683.
We recognize that In re Hans Nielsen, Brown, and Harris involved successive prosecutions. Nevertheless, the underlying logic and analysis which focuses upon lesser included offense principles is a valuable tool in determining whether there has been multiple punishment, i.e., whether two offenses are the "same" offense, in a particular case. If a defendant should not be required to defend against successive prosecutions for the "same" offense, and thereby not suffer double punishment, neither should he be subjected to multiple punishment at a single trial for the "same" offense.
In a recent multiple prosecution case the Pennsylvania Supreme Court held that aggravated robbery is a lesser included offense of first-degree felony murder. An earlier decision involving convictions for both murder and robbery at a single trial holding that robbery was a separate offense for double jeopardy purposes was expressly overruled. Commonwealth v Tarver, fn 9 supra. For a discussion of the similarity between the first-degree murder statutes of Michigan and Pennsylvania, see People v Aaron, 409 Mich. 672, 718; 299 N.W.2d 304 (1980).
Most recently, the Supreme Court has confronted the felony-murder double jeopardy problem within the framework of multiple punishment in the same prosecution. Whalen v United States, supra. Whalen was convicted in the District of Columbia of rape and of killing the same victim in the perpetration of rape. He was sentenced consecutively to terms of imprisonment of 20 years to life for first-degree murder and 15 years to life for rape. The District of Columbia Court of Appeals affirmed. 379 A.2d 1152 (DC App, 1977).
The Supreme Court reversed the Court of Appeals primarily on grounds that, within the context of the District of Columbia Code, Congress had not authorized consecutive sentences both for felony murder and the underlying offense of rape. Whalen v United States, 445 U.S. 684, 690.
The Supreme Court recently applied the Blockburger rule in a case involving a single prosecution and conviction of both conspiracy to import marijuana and conspiracy to distribute marijuana. Albernaz v United States, 450 U.S. 333; 101 S Ct 1137; 67 L Ed 2d 275 (1981). These two offenses are different offenses, not the "same" offense — each requires proof of a fact that the other does not. Albernaz, 345 (Stewart, J., concurring). This is not the situation in the instant case, nor in Whalen v United States, fn 6 supra.
In addition, as an interrelated basis of decision, the Court addressed the double jeopardy implications in Whalen by applying a provision of the District of Columbia Code which embodied the double jeopardy rule earlier enunciated in Blockburger v United States, 284 U.S. 299; 52 S Ct 180; 76 L Ed 306 (1932). The Whalen Court concluded that the law did not authorize consecutive sentences for both felony murder and the underlying felony of rape since it was not the case that each provision requires proof of a fact which the other did not. Blockburger v United States, 304. To the contrary, conviction of felony murder required proof of all the elements of the offense of rape. See United States v Greene, 160 US App DC 21, 34; 489 F.2d 1145, 1158 (1973). Cf. Harris v Oklahoma, 682-683.
As the two offenses were determined to be basically the "same" offense for purposes of double jeopardy, the Court found the multiple punishment impermissible. Any ambiguity in congressional intent concerning the necessary elements of proof under the particular facts was resolved in favor of lenity. See Simpson v United States, 14-15.
IV
Thus, we find a constitutional basis to prohibit conviction of both first-degree felony murder and the underlying necessarily included felony of armed robbery in this case. Conviction of both first-degree felony murder and the underlying felony violates defendant's state constitutional right against double jeopardy.
The trial court's first-degree felony-murder instruction failed to include a proper instruction on the element of malice. We therefore reverse the decision of the Court of Appeals and vacate defendant's first-degree felony-murder conviction.
In this context, the improper instructions relating to the felony-murder charge cast no doubt upon the validity of the armed robbery conviction. As the conviction of the greater offense of first-degree felony murder is vacated, it is no longer a double jeopardy violation to allow the conviction of the lesser offense, armed robbery, to stand.
Accordingly, we reinstate the conviction of the lesser offense of armed robbery and remand to the trial court. If the prosecuting attorney is persuaded that the ends of justice would be better served by retrial for first-degree felony murder, he may so advise the trial court and the conviction of armed robbery shall also be vacated and a new trial on both charges may be conducted in conformity with this opinion. See People v Martin, 398 Mich. 303, 307, 313-314; 247 N.W.2d 303 (1976).
COLEMAN, C.J., and KAVANAGH, WILLIAMS, LEVIN, and FITZGERALD, JJ., concurred with BLAIR MOODY, JR., J.