¶1(dissenting).
¶2I respectfully dissent.
¶3The trial court instructed the jury in the case, giving instructions allowing a finding of first-degree murder if the jury found the killing took place in the commission of a forcible felony — specifically “Willful Injury.” Hence, the court instructed the jury it might find the defendant guilty under the “felony-murder” rule. Iowa Code section 707.2 (1991) states in relevant part:
A person commits murder in the first degree when the person commits murder under any of the following circumstances: Jfc ⅜ ⅜ ⅜ #
(2) The person kills another person while participating in a forcible felony.
¶4A forcible felony is defined in Iowa Code section 702.11 (1991) as follows:
A “forcible felony” is any felonious child endangerment, assault, murder, sexual abuse other than sexual abuse in the third degree committed between spouses or in violation of section 709.4, subsection 2, paragraph “c” subpara-graph (4), kidnapping, robbery, arson in the first degree, or burglary in the first degree.
¶5Willful injury is defined in Iowa Code section 708.4 (1991) as follows:
¶6Willful Injury.
Any person who does an act which is not justified and which is intended to cause and does cause serious injury to another commits a class “C” felony.
¶7The trial court gave the uniform instruction on “malice” and also gave instruction 16A, advising the jury how malice might be found, as follows:
¶8INSTRUCTION NO. 16A
Malice may be concluded from the commission of Willful Injury which results in death.
¶9It is this instruction to which the defendant objects. I believe the instruction was in error and it prejudiced the defendant.
¶10Both the defendant and the State rely upon State v. Ragland, 420 N.W.2d 791 (Iowa 1988). In that case, the court stated:
If, as defendant argues, the State was not required to prove malice, then there would be a violation of due process. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970) (due process protects accused against conviction except by proof beyond a reasonable doubt of every fact necessary to constitute the crime charged). … *
We do not believe that our felony-murder rule violates due process. The legislature has the right to prescribe those acts which are murder and to further define acts which constitute first-degree murder. In enacting section 707.2(2), the legislature did not relieve the State of proving any element of murder nor did it create any presumptions which shifted the burden of proof from the State to the defendant. (Emphasis added.) ... In [State v.] Nowlin [244 N.W.2d 596, 604-05 (Iowa 1976) ], we pointed out that not all killings which occur during designated felonies are first-degree murder. Rather only murders which occur during designated felonies are first-degree murder. Under our statute the difference between killing and murder is malice aforethought. If the State does not prove this malice there can be no finding of murder. See State v. Oliver, 341 N.W.2d 744, 747 (Iowa 1983).
In the context of willful injury as the underlying felony, it is true that evidence establishing the intent required for that crime will often be the same as that proving the malice aforethought required for murder. However, malice aforethought and intent to cause serious injury are distinct elements and the presence of one does not necessarily prove the presence of the other. The State was required to prove both elements.
¶11Ragland, 420 N.W.2d at 794.
¶12In the present case, the court’s instruction number 16A violates the principles set out above in Raglandby allowing the jury to conclude from a finding of willful injury that resulted in death that defendant carried out that injury with malice afore*49thought. The jury would have the right to so find, under proper instructions, but the court invited the jury to so find only because the jury might find the defendant committed willful injury. This was error. I do not believe, given this instruction, it can be said the defendant did not suffer prejudice from that error.
¶13I also believe defense counsel lapsed in the failure to object to the hearsay testimony of officer James Rowley. I would find such lapse was ineffective assistance of trial counsel and it prejudiced the defendant since it refuted the evidence the defendant and the decedent victim did not leave the bar together.
¶14I would reverse the case for a new trial.