concurring-in-part-and-dissenting-in-part">D. C. Riley, P. J.

(concurring in part, dissenting in part). With the majority’s able treatment of issues I, II and IV, I have no qualms.

Our paths diverge, however, on the question whether, in a felony-murder context, the law imputes malice merely from the commission of a statutorily-enumerated felony. A growing chorus of Michigan appellate decisions (which once included the author of the majority opinion) has concurred in the landmark case of People v Fountain, 71 Mich App 491; 248 NW2d 589 (1976). See People v Martin, 75 Mich App 6; 254 NW2d 628 (1977), People v Ulmer, (amended opinion) 78 Mich App 319; 259 NW2d 875 (1977), and People v Wright, 80 Mich App 172; 262 NW2d 917 (1977).

In Fountain, Judge Walsh, after an exhaustive analysis of Michigan law, concluded:

"Michigan has neither a statutory felony-murder doctrine nor a common law felony-murder doctrine. Malice is not, in this state, imputed to an act of killing from the intent to commit an underlying felony. Although malice may be inferred from the nature of the underlying felony and the circumstances surrounding its com*39mission, the presence or absence of malice in each case remains a question for jury determination. "Insofar as the trial court’s instructions removed the essential element of malice from the jury’s consideration, they were erroneous.” 71 Mich App at 505-506.

Wholeheartedly, I concur.

With regard to points raised in the present majority opinion, I offer the following observations.

The majority, though correctly defining malice "as an 'intent to kill either express or implied’ ”, quoting People v Morrin, 31 Mich App 301, 310; 187 NW2d 434 (1971), blurs this definition by suggesting that, apart from an intent-to-kill malice, there exists a species of "malice associated with the felony itself’. It does not advance analysis to employ a legal term of art in a popular, but inexact sense. Although popular usage would equate the term "malicious” with "malevolent”, legal usage is far more precise. In legal terms, malice is not an essential element of any of the felonies listed in Michigan’s felony-murder statute. To suggest otherwise is to obfuscate the issue at bar.

II.

The majority properly recognizes that Pennsylvania decisions may illuminate, but need not control, the course of Michigan law. "We are * * * free to adopt such a construction of the law in Michigan as commends itself to our judgment.” In re Cameron’s Estate, 170 Mich 578, 580; 136 NW 451 (1912).

Although acknowledging our freedom to differ *40with the Pennsylvania courts, the majority cites People v Podolski, 332 Mich 508; 52 NW2d 201 (1952), and the PodolskiCourt’s "approving” reference to Commonwealth v Moyer, 357 Pa 181; 53 A2d 736 (1947), to suggest that the decisional authority for Fountain (i.e., the Utter-Treichel-Andrus trilogy1) did not portend the abolition of a common law felony-murder rule in Michigan. Reference to Podolskidiscloses, however, that the decision focused almost entirely on causation, 332 Mich at 514-515; that the Supreme Court guardedly quoted a passage from Moyeron causation ("[w]e adopt the above-quoted [Moyer] reasoning as far as applicable to the instant case”, 332 Mich at 516); that the majority’s quotation from Moyernowhere appears in Podolski; and that Podolskisupports the Fountainview on felony murder ("[u]nder the testimony, the jury had a right to consider that defendant had the murderous intent that any innocent resisting person should die as a result of resistance”, 332 Mich at 514 [emphasis added]).

Moreover, whatever doubt is engendered by the majority’s incautious treatment of Podolskiand Moyermust surely be dispelled by a reading of People v Carter, 387 Mich 397; 197 NW2d 57 (1972). There the Supreme Court vacated defendants’ convictions of first-degree felony murder committed in the course of a robbery since the trial court’s charge took "from the jury the essential question of malice”, 387 Mich at 397 (Emphasis added.), and thus denied them an ability to convict of manslaughter. In my view, the majority’s position cannot withstand a close examination of the *41reasoning and result in Carter, supra,a case that reaffirms the Utter-Treichel-Andrus line of cases.

III.

While People v Allensworth, 401 Mich 67, 71; 257 NW2d 81 (1977), contains language arguably at variance with Fountainand its progeny, the terse remarks in Allensworth, bereft of citation and uttered in the course of a discussion on an unrelated issue, do not compel a conclusion that the commission of an enumerated felony ipso facto satisfies the malice requirement of first-degree felony murder; Allensworth, without more, cannot override the Supreme Court’s comprehensive and reasoned analysis in People v Carter, supra.See also the similarly titled People v Carter, 395 Mich 434; 236 NW2d 500 (1975).2

IV.

If the Michigan Criminal Jury Instructions are to be canvassed for whatever light they may shed, then a balanced examination would perforce include reference not only to CJI 16:1:15 and 16:1:16 with accompanying Use Notes3 but also to the Commentary at pp 16-122 to 16-123:

"The Committee had grappled with the [Fountain] problem in determining how juries should be instructed in criminal cases. Three varieties of instructions had been drafted and presented to it. The first instruction strictly imputed malice; i.e., that all the jury had to do *42was determine that the felony had been committed and that a death had resulted from the commission of the felony. The second instruction embodied the Pavlic standard; i.e., that the felony had to be one inherently dangerous to human life in the way it was committed. The third instruction’s requirements were that, as in wanton act murder, there had to be the intentional creation of a very high degree of risk of death with some knowledge of its probable consequences, and that the commission of one of the enumerated felonies would raise this wanton act second-degree murder to first-degree murder. The Committee first concluded that the distinction between committing a felony in a dangerous way and the intentional creation of a very high degree of risk of death was more a matter of semantics than of substance. The Committee discussed whether the standard should be the same as wanton act murder and concluded that it would be wisest to leave this as a question of fact to be determined by the jury under all the circumstances of a particular case. The most difficult decision was whether malice could be imputed simply from the commission of one of the enumerated felonies. During the course of completing the jury instructions, the matter was voted on three times.

"In conclusion, the amount of danger and the indifference to human safety should be determinative of felony-murder. The 1969 inclusion of 'larceny of any kind, extortion, and kidnapping’ in the first-degree murder statute clearly aggravates some of the problems inherent in a felony-murder rule. The distinguishing characteristic between ñrst-degree and second-degree murder should not rest upon whether or not the murder was committed during the course of an enumerated crime, unless that crime is overwhelmingly associated with fatal consequences because of the way it is committed. No one would suggest that larceny, especially petty larceny, is attended by such consequences. A standard that the intentional commission of a petty larceny, without more, is sufficient to satisfy the mens rea of felony-murder cannot be reconciled with our concept that punishment should be related to moral guilt, or at least to the dangerousness of the defendant’s actions.” (Footnote omitted, emphasis added.)

*43Obviously, then, the Special Committee, just as this Court, could not reach consensus on the Fountainquestion. The failing of CJI 16:1:16 is amply illustrated by its attendant Use Note ("This instruction is optional and is to be used with caution, only where appropriate”) which fails to describe "appropriate” occasions for its use.

At any rate, the Commentary’s concluding paragraph clearly sides with Fountainin suggesting that "the way [an enumerated crime] is committed” — a question for the factfinder if ever there was — should distinguish first- from second-degree felony murder.

"The felony-murder rule has existed for over three hundred and fifty years as an enigma in the law of homicide.” II Michigan Criminal Jury Instructions, Commentary, p 16-107. It "may well linger on in the United States for many years in a morass of judicial interpretations and statutes”. Id. at 16-111.

In apparent agreement with the foregoing comments, the majority recognizes "that doubt as to the existence of a common law or statutory felony-murder rule may continue until the Legislature or the Supreme Court speaks definitively to the issue”. Thus, my colleagues on the panel "advise trial judges to instruct on malice as applied to the killing”.

This recommendation misses the mark for it adds a greater burden on the prosecution than the majority deems necessary and it raises the prospect (anathema to the majority) that a jury will acquit a felon who, in their view, has acted without malice in taking a victim’s life.

*44The better approach, I believe, is to encourage the Supreme Court speedily to address the Fountainissue, sua sponte if need be, and thereby to satisfy its "general obligation to explain and reconcile the law for bench, bar and populace”. People v Clemons, 74 Mich App 448, 461, fn 1; 253 NW2d 795 (1977) (Riley, J., concurring). Short of swift action by the Court, or of curative legislation, the trial and lower appellate courts of this state must anticipate with extreme dismay the development of a crazy quilt of conflicting decisions on felony murder — a development not unlike the Ora Jonesretroactivity4 fiasco. Considerations of justice and judicial economy militate in favor of prompt Supreme Court action on the issue.

VI.

For the reasons cited above, I would reverse defendant’s conviction, remanding for a new trial in which a properly instructed jury would pass upon his conduct.

Thus, I dissent.

People v Utter, 217 Mich 74; 185 NW 830 (1921), People v Treichel, 229 Mich 303; 200 NW 950 (1924), and People v Andrus, 331 Mich 535; 50 NW2d 310 (1951).

Similarly, see Corrigan and Grano, 1976 Annual Survey of Michigan Law: Criminal Law, 23 Wayne L Rev 473, 504-506 (1977), which correctly interprets People v Carter, 395 Mich 434; 236 NW2d 500 (1975).

The cited jury instructions and use notes can be found on p iv, fn 11 of the majority opinion.

People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). See, e.g., People v Harrison, 71 Mich App 226; 247 NW2d 360 (1976), People v Clemons, 74 Mich App 448; 253 NW2d 795 (1977), People v Jackson, 70 Mich App 478; 245 NW2d 797 (1976), and People v Page, 73 Mich App 667; 252 NW2d 239 (1977).

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How this case has been treated — in progress