¶1concurring:
¶2I agree with the result we reach in this case but regret that this Court would allow an instruction stating that malice may be presumed from the use of a deadly weapon, to be given in a murder trial even though the defendant was convicted “only” of involuntary manslaughter.
¶3The majority holds that because the guilty verdict was for an offense that does not have malice as an element, that the instruction could not have affected the fact-*265finding process and therefore was harmless. I cannot share this reasoning.
¶4Experience teaches that jurors so often, as do we all, compromise about their decisions and when their area of choice is bounded on the one extreme by a constitutionally erroneous instruction about murder and on the other by “not guilty,” we ourselves presume a great deal when we say that they did not commence their deliberations from the state’s strongest point: defendant could be, because he used a deadly weapon, presumed to entertain malice and be guilty of murder.
¶5“Harmless constitutional error” is to me self contradictory and a concept with which I have great difficulty. I am disposed toward a purer approach: if it’s constitutional error, it cannot be harmless.