The question is whether the record shows a factual basis for a plea of guilty of second-degree murder.
Arthur Haack, charged with first-degree murder, pled guilty to second-degree murder. The Court of Appeals affirmed: 1
"The facts recited by the defendant adequately establish second-degree murder as defined above. The defendant killed a man by intentionally pointing a loaded gun and firing that gun. He knew the gun was loaded. There was bad blood between the defendant and the decedent.”
We affirm.
I
During the plea-taking colloquy, Haack said that on the night of the homicide an acquaintance gave him a .45-caliber revolver to carry in his coat pocket. There were four bullets in the cylinder. Haack placed one of the empty chambers under the hammer and the other immediately to the left *370 of it. He thought the cylinder rotated clockwise and that the hammer would strike an empty chamber if the gun was fired. He put the gun in his pocket.
At a party later that night the deceased, whom Haack had not met before, asked Haack why he had a gun. Haack responded "if you knew the people that I knew you would carry a gun too”. Haack sought to terminate the conversation. The deceased moved away. Haack overheard another person urge the deceased to leave Haack alone. Then the deceased "turned and faced me and said that if I was such a big man with the gun why didn’t I shoot him”.
Haack described what followed:
"I figured this guy is pushing me far enough and I’m going to scare the hell out of him and let it go at that.
"I pulled the gun out and cocked the hammer and pulled the trigger. It fired.
"I found out that on a couple of makes of the older .45 revolvers that they spin counter clockwise instead of clockwise and that’s what happened.”
Haack contends his assertion to the judge that he believed the gun would not fire and he intended only to scare the deceased negates intent to kill, a requisite element of second-degree murder. He contends that while he intentionally pulled the trigger, the shooting was an accident. Alternatively, he contends that his belief the gun'would not fire was reasonable and is a mitigating factor that reduces the offense to manslaughter.
The prosecutor responds that intent to kill can be inferred from the facts recited by Haack when he offered his plea. Haack pointed a gun he knew was loaded at the deceased and intentionally *371 pulled the trigger. The prosecutor characterizes Haack’s action as "an erroneous Russian roulette”. The natural tendency of such reckless behavior is to cause death or great bodily harm.
II
Haack’s plea of guilty was accepted 2 before the effective date of the general revision of GCR 1963, 785 providing in subsection 7(3) for a determination of the factual basis for a plea of guilty. 3
*372
While former rule 785 and the statute* **
4
did not explicitly require a determination that there was a factual basis, such a requirement was established by judicial construction of the rule and statute in
People v Barrows,
"The direct questioning of a defendant by the trial judge on plea of guilty is required by the rule for the purpose of establishing the crime and the participation therein of the person pleading guilty. This is a precaution against involuntary or induced false pleas of guilty, and against subsequent false claims of innocence.” 5
*373 In reviewing convictions on pleas of guilty accepted before the 1973 revision of rule 785, this Court followed the Barrows rule requiring a factual basis supporting the conclusion that a crime was committed and that defendant participated in its commission. 6
In
People v Taylor,
"We reaffirm our holding in Barrows. No plea of *375 guilty should be accepted by a trial judge until facts sufficient to establish the defendant’s guilt have been set out in the record. Preferably, these facts should be brought forth through a direct examination of the accused by the trial judge at the time the plea of guilty is accepted.” 8
Ill
Intent to kill is an element of the offense of murder. Haack’s assertions to the judge that the shooting was an accident and that there were mitigating circumstances do not, however, negate a factual basis for his plea of guilty to second-degree murder. While Haack may not have actually intended to kill the deceased, intent to kill may be inferred by the trier of fact 9 where the natural tendency of the defendant’s behavior is to cause death or great bodily harm.
"A person who kills another is guilty of the crime of murder if the homicide is committed with malice aforethought. Malice aforethought is the intention to kill, actual or implied, under circumstances which do not *376 constitute excuse 10 or justification or mitigate the degree of the offense to manslaughter. The intent to kill may be implied where the actor actually intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or great bodily harm. * * *
"Thus, as 'malice aforethought’ is now defined, a killing may be murder even though the actor harbored no hatred or ill will against the victim and even though he 'acted on the spur of the moment’.”
People v Morrin,
The issue here is whether a factual basis has been established for the taking of a plea.* 11
In
Guilty Plea Cases,
Although Haack asserted the shooting was accidental, in deciding whether to accept his plea of guilty the judge could, on the strength of Haack’s inculpatory statements, properly reject his disclaimer of intent to kill and his assertion that the shooting was accidental and accept his plea of guilty. On Haack’s statement that he had pointed a revolver he knew was loaded at the deceased and *378 intentionally pulled the trigger, a trier of fact could properly infer intent to kill.
Before accepting a plea of guilty, the judge need not decide that a jury would convict. He may accept the plea if he finds from defendant’s recital a factual basis which would support conviction and that the defendant enters his plea advisedly. A guilty plea "may be accepted even though the defendant is unsure of his guilt and even where he denies his guilt if after careful inquiry the judge satisfies himself that there is a substantial factual basis for the plea and that the plea represents a well-considered and well-advised choice by the defendant”. 16
Affirmed.
Notes
The opinion of the Court of Appeals, filed December 7, 1973, Docket No. 16895, is unreported.
Haack was examined by the judge and offered his plea on January 29, 1973. The plea was taken under advisement. On February 13, 1973 the plea was accepted and Haack was sentenced to a prison term of 10-20 years.
June 1, 1973 was the effective date of the general revision of GCR 1963, 785.
The court rule in effect at the time Haack’s plea was accepted required the judge to examine the accused and “ascertain that the plea was freely, understandingly and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency”. GCR 785.3, effective January 1, Í963.
The foregoing language, which can be traced back to Court Rule No. 35A, added June 4, 1947, effective September 1, 1947 (
On June 8, 1967 this Court "repealed effective instanter” the various amendments of rule 785 adopted since January 1, 1963. The Court advised the profession and bench generally that various persons and groups had been requested to assist in drafting recommendations for amendment of rule 785: "Pending submission and approval by the Court of such forthcoming amendments, the bench and bar will proceed in accordance with original Rule 785, in accordance with article 1 of the Constitution of 1963 and in accordance with such decisions of the United States Supreme Court and of the Supreme Court of Michigan as may be deemed applicable to the particular criminal matter at hand.”
Effective June 1, 1973 rule 785 was amended (
"(3) Determining Factual Basis for Plea.
*372 "(a) The court shall not accept a plea of guilty or nolo contendere until it is satisfied that a crime was committed.
"Ob) The court shall not accept a plea of guilty until it is satisfied that a crime was committed and, through personal interrogation of the defendant, that defendant participated therein.
“(c) If defendant’s description of his actions and any otherwise admissible evidence presented to the court on the record during the plea taking proceedings would not substantially support a finding that defendant is in fact guilty of the charged offense or the offense to which he is pleading, the plea shall be rejected by the court.”
Effective December 7, 1975 (
"(3) An Accurate Plea.
"(a) If the defendant pleads guilty, the court, by questioning him, shall establish support for a finding that he is guilty of the offense charged or the offense to which he is pleading.
"(b) If the defendant pleads nolo contendere, the court shall not question him about his participation in the crime. The court shall:
"(i) state why a plea of nolo contendere is appropriate; and "(ii) conduct a hearing, unless there has been one, that establishes support for a finding that the defendant is guilty of the offense charged or the offense to which he is pleading.”
The statute provides that whenever a person pleads guilty it is the duty of the judge "to become satisfied after such investigation as he may deem necessary for that purpose respecting the nature of the case, and the circumstances of such plea, that said plea was made freely, with full knowledge of the nature of the accusation, and without undue influence. And whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered and order a trial of the issue thus formed.” MCLA 768.35; MSA 28.1058.
This court added:
"We have little doubt that the entry of the plea by his attorney was *373 made with defendant’s agreement. But Michigan’s rule on acceptance of pleas requires that the court ascertain more about the plea than that the defendant agrees that it is expedient to so plead. The rule is designed to require reasonable ascertainment of the truth of the plea.
"This requirement was present in the statute (CL 1948, § 768.35 [Stat Ann 1954 Rev § 28.1058]) which preceded Rule No 35A. It has frequently been given effect by this Court.
People v Utter,
See People v Rufus Williams,
"Such action meets the requirement of 'establishing the crime and participation therein of the person pleading guilty’ as required by Barrows. ”
See People v Butler,
"Regarding defendant’s claim that
People
v
Barrows, supra,
necessitates direct personal inquiry of the defendant for purposes of ascertaining the factual basis of the plea, defendant’s counsel interrogating defendant as to how he drove the car away more than satisfies
Barrows, People v Rufus Williams, supra, People v Stearns
[
In
People v Taylor,
Similarly, see People v Duffield,
The Court of Appeals has reversed a number of pre-rule-785.7
*374
guilty-plea convictions on the authority of
Barrows
for failure to establish a factual basis.
See, e.g. People v Atcher,
"The provision that 'the court shall examine the accused ** * * and * * * shall ascertain that the plea was * * * understandingly * * * made’ requires the judge to conduct such an examination as to show that what thé defendant actually did was indeed a crime or otherwise he could not understandingly plead guilty. If what he did was actually not a crime, then if he pled guilty to it, it would not be an understanding plea.
"In the instant case the judge’s examination so far as the record shows was to ascertain 'You are pleading guilty because you are guilty?’ This puts the burden on the defendant to know whether indeed he was legally guilty, and of what, and he might well not understand. See
People v Merhige,
"In any event it is the court’s duty to ascertain by its examination facts which would convince the court that indeed a crime had been committed by the defendant. Such examination is not the equivalent of a legal trial but it must objectively indicate that the court had fulfilled this obligation.
“Since the record as presented does not show the necessary examination, the defendant’s plea of guilty is vacated and this case is remanded to the trial court for appropriate proceedings.”
People v Taylor,
"Unfortunately, because of lack of clear precedent perhaps, in the case at bar the trial judge was confused as to who should know what. He told the defendant 'You know what happened’ and 'You know whether you’re guilty or not.’
"The court rule, however, requires that the
trial court
should 'know what happened’ so that the
trial court
would know whether the defendant was 'guilty or not’.”
People v Carlisle,
"The majority views — that the so-called 'presumption of malice’ actually authorizes merely the drawing of an inference; and that the burden of persuasion of guilt of murder (and so the negativing of facts of mitigation or justification) beyond a reasonable doubt remains always with the prosecution — are surely the correct ones if we are to abide by the guiding principle of Anglo-American criminal justice that a criminal defendant is to be considered innocent until shown by the prosecution to be guilty beyond a reasonable doubt.” LaFave & Scott, Criminal Law, § 68, p 540.
See Mullaney v Wilbur,
"Homicide is 'excusable’ if the death is the result of an accident and the actor was not criminally negligent.”
People v Morrin,
A different question would be presented if the issue were one of jury instruction, whether the judge had correctly instructed the jury on accidental death
(see People v Pepper,
See
fn 3,
supra,
for text of rule. The standard for review of this pre-rule-785 plea sho'uld not be more stringent than the standard now in force.
People v Armstrong,
Despite defendant’s disclaimer of knowledge that his confederate had a gun, on his own recital a jury could properly "conclude that he and his confederate agreed to commit the crime of robbery and, whether or not the defendant was aware his confederate had a gun, that carrying or using a gun was 'fairly within the scope’ of the common unlawful enterprise.
See People v Pearce,
The defendant admitted she had shot another woman with a gun. "Under the circumstances described in her own recital, a jury could properly infer intent to kill from the fact that she shot the victim with a gun.” Guilty Plea Cases, supra, p 130.
The defendant admitted he had set fire to a building in anger causing the death of two persons:
"The court did not ask him if he intended to kill anyone when he set the fire. It is asserted that the record does not show the elements of malice and intent to kill. However, it is not necessary * * * to admit that he acted with malice or intended to kill. A jury could properly infer intent to kill, even where the defendant disclaims such intent, from evidence that he intentionally set in motion a force likely to cause death or grievous bodily harm — here setting fire to a building.” Guilty Plea Cases, supra, p 131.
(Emphasis by the author.)
People v Coates,
Contrast People v Stoner,