State v. Johnson

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
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                                 No. 90-578


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Chittenden Circuit
 Roy Johnson
                                              February Term, 1992



 Matthew I. Katz, J.

 William Sorrell, Chittenden County State's Attorney, and Pamela Hall
   Johnson, Deputy State's Attorney, Burlington, for plaintiff-appellee

 Charles Martin of Martin & Paolini, Barre, for defendant-appellant



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      JOHNSON, J.   Defendant appeals from a first-degree murder conviction.
 He argues that (1) the evidence, when viewed most favorably to the State,
 failed to establish causation; (2) the trial court's instructions regarding
 malice and evidence of other crimes constituted plain error; (3) the court
 committed reversible error by allowing a sequestered juror to return from
 emergency leave without determining whether he had been prejudicially
 influenced against defendant; (4) the court's examination of an expert wit-
 ness put into doubt the impartiality of the trial; and (5) the conviction is
 void because due process requires that a charge carrying a life sentence be
 brought by grand jury indictment rather than by information.  We affirm.
                                     I.
      Defendant contends that the court erred by not granting his motion for
 judgment of acquittal because the evidence was insufficient for the jury to
 conclude that his conduct proximately caused the victim's death.  Viewing
 the evidence in the light most favorable to the State, and excluding the
 effect of modifying evidence, State v. Papazoni, ___ Vt. ___, ___, 596 A.2d 1276, 1276 (1991), we conclude that there was sufficient evidence for the
 jury to find causation.
      Aside from the testimony of the state medical examiner, most of the
 direct evidence in the case was supplied by an eye witness, who recounted a
 sequence of bizarre events culminating in the abandonment of the victim in
 the Lamoille River.  In the early morning hours of May 31, 1989, following a
 night of imbibing alcohol and driving from one location to another,
 defendant, the victim, and the witness arrived at a spot along the river.
 Defendant, who allegedly had already attempted to asphyxiate the victim only
 an hour or so earlier, drove his car into the victim soon after they
 arrived.  Apparently, the victim was bruised and in pain but not seriously
 injured.
      Defendant then pushed the victim into the river.  As the victim stood
 in two or three feet of water, defendant threw an eight- or nine-inch rock
 at him, and was about to throw another larger rock when the witness inter-
 vened.  Shortly thereafter, defendant threw the victim's wallet farther out
 into the river, purportedly to induce him to proceed deeper into the water.
 Defendant knew that the victim was in his sixties, in poor health, gullible,
 and drunk.  He also knew that the victim believed the wallet contained a
 significant amount of money.  The victim did indeed swim farther out into
 the cold water.  Failing to retrieve the wallet, he remained afloat by
 clinging to a branch of a half-submerged tree that extended into the river.
 Defendant rejected a suggestion that they rescue the victim, stating, "He's
 history.  He knows too much."  Apparently, this statement was in reference
 to a crime spree of the preceding days, in which defendant had the victim
 write worthless checks for a variety of valuable items.  Defendant and the
 witness left, and sometime that morning the victim drowned.
      A person is responsible for a death proximately caused by criminal
 conduct, even though the person's conduct was not the immediate cause of
 death.  United States v. Guillette, 547 F.2d 743, 749 (2d Cir. 1976).  When
 the immediate cause of death is the natural result of the accused's conduct,
 the chain of direct legal causation remains unbroken.  Id.; State v.
 Yudichak, 151 Vt. 400, 403, 561 A.2d 407, 409 (1989).  This principle
 applies even when the victim sets in motion the immediate cause of death.
 Accordingly, "if a person acting on a well grounded and reasonable fear of
 death or bodily injury induced by an accused's threats or actual assaults,
 dies in an attempt to extricate himself from the danger, the accused bears
 criminal liability for the death."  Guillette, 547 F.2d  at 749 (defendants
 criminally responsible for victim's death, even assuming victim planted the
 bomb that killed him to protect himself from defendants' attempts to dis-
 suade him from testifying); see also State v. Myers, 7 N.J. 465, 475, 81 A.2d 710, 715 (1951) (first-degree murder conviction upheld where wife
 jumped into river and drowned after husband struck her several times and
 told her to jump in).
      We recognize that the witness was intoxicated at the time these events
 took place, that he interacted with the other two men throughout the entire
 episode and may have had reason to inculpate defendant, that cross-examin-
 ation brought to light many inconsistencies in his story, and that he
 testified that he believed the victim did not want to return from the river
 and was sitting in the tree waving goodbye as the other two men left.
 Assessing the credibility of witnesses, however, is the province of the
 jury, State v. Jost, 127 Vt. 120, 128, 241 A.2d 316, 322 (1968), and there
 was ample evidence for a reasonable jury to conclude that, to silence the
 victim, defendant intended to cause his death by luring or frightening him
 into the river in his inebriated condition.  Not only was there evidence of
 a motive for the killing, but there was also evidence that defendant had
 attempted to kill the victim earlier by asphyxiation, and that the victim's
 body had bruises and abrasions that could have been caused by an automobile
 driven at a slow speed.  Given this evidence, the jury could have concluded
 that, even if the victim had an opportunity to return to shore, he was
 afraid to do so for fear of defendant, and that his death was the natural
 result of defendant's conduct.
      Defendant correctly points out that "the causal connection between the
 death of the decedent and the unlawful acts of the [defendant] cannot be
 supported on mere conjecture and speculation."  State v. Rounds, 104 Vt.
 442, 457, 160 A. 249, 254 (1932).  In Rounds, there was some question as to
 whether the decedent died from blows suffered in a fistfight a month earlier
 or from injuries resulting from a fall out of his hospital bed.  Noting
 that some of the defendant's blows had been struck in self-defense, the
 Court concluded that there was no competent evidence tending to establish
 that death resulted from any "unlawful" blows.  Id. at 455-56, 160 A.  at
 253.  Here, the evidence, not mere conjecture, supports the reasonable
 conclusion that defendant intended to cause the death of the victim.  See
 Papazoni, ___ Vt. at ___, 596 A.2d  at 1277 (despite reasonable possibility
 that victim of vehicular homicide was attempting to commit suicide, there
 was sufficient evidence for jury to conclude that death resulted from the
 defendant's recklessness); State v. Norton, 147 Vt. 223, 231, 514 A.2d 1053, 1058 (1986) (although no witness observed victim's death, evidence
 was sufficient for jury to find that the defendant forced victim over edge
 of quarry to his death).
                                     II.
      Next, defendant argues that parts of the court's charge constituted
 plain error.  There are no precise criteria for determining whether plain
 error exists.  See State v. Ross, 152 Vt. 462, 474, 568 A.2d 335, 342 (1989)
 (Morse, J., dissenting); 3A C. Wright, Federal Practice and Procedure { 856,
 at 337 (2d ed. 1982) ("the cases give the distinct impression that 'plain
 error' is a concept appellate courts find impossible to define, save they
 know it when they see it").  In general, we must examine the record in each
 case, and determine whether the error is so prejudicial that "it undermines
 confidence in the outcome of the trial."  United States v. Sblendorio, 830 F.2d 1382, 1388 (7th Cir. 1987), cert. denied, 484 U.S. 1068 (1988); see
 United States v. Young, 470 U.S. 1, 16 (1985) (reviewing court must evaluate
 claim of plain error against entire record of case).  Only in extraordinary
 cases will we find plain error.  State v. Mecier, 145 Vt. 173, 178, 488 A.2d 737, 741 (1984).
                                     A.
      Defendant first contends that the court committed plain error by
 allowing the jury to consider defendant's failure to rescue as evidence of
 malice or intent to kill.  The challenged charge reads as follows:
             The law imposes no general duty to rescue.  Hence if
           Defendant was not responsible for the victim's peril,
           but merely failed to attempt a rescue, such failure does
           not constitute any crime charged in this case.  Although
           not a crime, you may consider any failure to rescue as
           possible evidence of malice or intent if you conclude
           that Defendant had the capacity, means and ability to
           make a rescue.
 We agree that the last sentence was inaccurate because if the jury had
 concluded that defendant was not responsible for the victim's peril,
 defendant would not be guilty of the charged crime and there would be no
 need to consider whether malice or intent was present.  Nevertheless, there
 was no plain error.  This particular charge followed a detailed statement by
 the court explaining that the jury must find that defendant's conduct was
 both the cause in fact and the proximate cause of the victim's death.  The
 jury could not reasonably have construed the charge as a whole to mean that
 defendant could be criminally responsible for his failure to rescue even if
 he did not put the victim in peril.  Given this conclusion, it would have
 been proper for the jury to consider defendant's failure to rescue in
 determining whether defendant intended to kill the victim.  See State v.
 Cole, 150 Vt. 453, 456, 554 A.2d 253, 255 (1988) ("Intent is rarely proved
 by direct evidence; it must be inferred from a person's acts and proved by
 circumstantial evidence."); see also 2 W. LaFave & A. Scott, Substantive
 Criminal Law { 7.2(b), at 193 (1986) (intent to kill must be gathered from
 killer's actions and words in light of the surrounding circumstances).
                                     B.
      Defendant also claims that the court's malice instruction constituted
 plain error because (1) it combined the elements of malice and intent,
 thereby allowing the jury to convict defendant on the first-degree murder
 charge without finding that he intended to kill; and (2) the third component
 of the court's definition of malice is so similar to the criminal negligence
 standard that it allowed the jury to convict defendant of murder based on
 facts that justify only a conviction of involuntary manslaughter.  Although
 we find no plain error, we take this opportunity to clarify the concepts of
 malice and intent as they relate to first- and second-degree murder.
      Murder is defined most frequently as the unlawful killing of a person
 with "malice aforethought."  2 LaFave & Scott, supra, { 7.1, at 181.
 Although some courts continue to define the term "malice aforethought" with
 archaic phrases such as "evil disposition," "wicked purpose," and "heart
 fatally bent on mischief," those phrases do not approximate the term's
 literal meaning in modern times, and indeed it is doubtful that an "ill-
 will" element was ever required for a murder conviction.  See id. at 181-82;
 People v. Woods, 416 Mich. 581, 622-24, 331 N.W.2d 707, 726-27 (1982).
 Initially, the malice element simply meant a premeditated intent to kill
 without legal justification.  See 2 LaFave & Scott, supra, at 182.  As the
 common law developed, the definition of malice expanded to include an intent
 to cause serious bodily injury or an extreme indifference to human life,
 which encompassed what is commonly  called "depraved-heart murder."  Id. at
 182-83; see State v. Doucette, 143 Vt. 573, 582, 470 A.2d 676, 682 (1983).
 The courts began to use the phrase "malice aforethought, express or
 implied"; "express" malice referred to murder with a premeditated intent to
 kill, while "implied" malice referred to depraved-heart murder, felony
 murder, or unreasonable "heat of passion" murder.  See 2 LaFave & Scott,
 supra, at 182-83.
      In the nineteenth century, a majority of the states divided murder into
 degrees to graduate punishment on the basis of culpability and to narrow the
 category of capital offenses.  See id. { 7.7, at 236; People v. Aaron, 409
 Mich. 672, 718, 299 N.W.2d 304, 321 (1980).  Since then, many jurisdictions
 with statutes similar to ours have held that a conviction of premeditated
 first-degree murder requires that the State prove that the defendant
 intended to kill.  See State v. Lacquey, 117 Ariz. 231, 234, 571 P.2d 1027,
 1030 (1977) ("to show premeditation and deliberation, the State must prove
 that the defendant made a decision to kill prior to the act of killing");
 People v. Alexander, 140 Cal. App. 3d 647, 665, 189 Cal. Rptr. 906, 916
 (1983) ("Except where the felony murder rule is applicable, first degree
 murder must be predicated on express malice -- the defendant must
 specifically intend to kill."); Hounshell v. State, 61 Md. App. 364, 371,
 486 A.2d 789, 793 (1985) (first degree murder -- wilful, deliberate,
 premeditated -- "is the actual intent coupled with the fully-formed
 malicious purpose to kill"); State v. Garcia, 398 Mich. 250, 259, 247 N.W.2d 547, 550 (1976) (statute prohibiting wilful, deliberate and premeditated
 killing requires that there be an "intent to accomplish the result of
 death"); State v. Jones, 303 N.C. 500, 505, 279 S.E.2d 835, 838 (1981)
 ("intent to kill is an essential element of [premeditated] first degree
 murder"); Commonwealth v. Weinstein, 499 Pa. 106, 115, 451 A.2d 1344, 1348
 (1982) (Commonwealth must prove that the defendant specifically intended to
 kill in order to establish premeditated first-degree murder).  But cf.
 Commonwealth v. Puleio, 394 Mass. 101, 108, 474 N.E.2d 1078, 1083 (1985)
 (conviction of first-degree murder may rest upon showing that the defendant
 "intended to do an act creating a plain and strong likelihood that the
 victim's death or grievous harm would follow"). (FN1) As Justice Traynor
 explained:
           [The wanton disregard for human life] mental state
         must be distinguished from the state of mind described
         as "wilful, deliberate, and premeditated . . . ."  The
         latter phrase encompasses the mental state of one who
         carefully weighs the course of action he is about to
         take and chooses to kill his victim after considering
         the reasons for and against it.
 People v. Conley, 411 P.2d 911, 918, 49 Cal. Rptr. 815, 822 (1966).
      Vermont's murder statute, which has been left virtually unchanged since
 its enactment in 1869, provides as follows:
           Murder committed by means of poison, or by lying in
         wait, or by wilful, deliberate and premeditated killing,
         or committed in perpetrating or attempting to perpetrate
         arson, sexual assault, aggravated sexual assault,
         robbery or burglary, shall be murder in the first
         degree.  All other kinds of murder shall be murder in
         the second degree.
 13 V.S.A. { 2301.  Early on, this Court stated that "[t]he statute has in no
 degree altered the common-law definition of murder."  State v. Tatro, 50 Vt.
 483, 494 (1878).  In that same case, the Court concluded that to constitute
 a premeditated murder of the first degree, "the act must, indeed, be done
 with malice aforethought.  And that malice must be actual, not construct-
 ive."  Id. at 492 (emphasis in original).  This statement made it clear that
 premeditated first-degree murder requires a showing of a "purpose and intent
 to kill."  Id. at 494.  Language from later cases supports such a conclu-
 sion.  See State v. Girouard, 135 Vt. 123, 138, 373 A.2d 836, 846 (1977)
 ("It is axiomatic that murder in the first degree requires proof of
 murderous intent with a purpose of mind to kill as distinguished from an
 act done upon sudden impulse without meditation or murderous intent.");
 State v. Carr, 53 Vt. 37, 47 (1880) (same).
      Other cases, however, could be construed to undermine such a
 conclusion.  For example, in State v. Battick, 133 Vt. 558, 561, 349 A.2d 221, 223 (1975), the Court cited Tatro and State v. Blair, 53 Vt. 24 (1880)
 for the proposition that the malice required for premeditated first-degree
 murder can be either actual or constructive.  In fact, Tatro stands for the
 opposite proposition, and Blair is completely unrelated to the issue
 addressed by the Court.
      The Court in State v. Doucette, 143 Vt. at 582, 470 A.2d  at 682, like
 the trial court here, defined malice as "an intention to kill, an intention
 to do great bodily harm, or a wanton disregard of the likelihood that one's
 behavior may naturally cause death or great bodily harm."  The Court took
 the malice definition from a Michigan felony-murder case, which held, as did
 Doucette, that the mental element of felony murder could not be presumed
 merely from an intent to commit the felony.  See Aaron, 409 Mich. at 728,
 299 N.W.2d  at 326.  Thus, Aaron and Doucette stand for the proposition that
 a killing during "the perpetration of a felony" is first-degree murder if,
 at a minimum it evidences a wanton disregard of the likelihood that death
 will result.  Id.; Doucette, 143 Vt. at 582, 470 A.2d  at 682 (jury may
 convict a person of felony murder where evidence of malice indicates that
 the defendant "acted with extreme indifference to the value of human life").
 This holding, which allows a first-degree felony murder conviction based on
 a showing of implied (constructive) malice, does not conflict with our
 affirmation of well established case law requiring a showing of intent to
 kill in premeditated murder cases. (FN2)
      In short, whichever element intent is assigned to, see In re Dunham,
 144 Vt. 444, 448, 479 A.2d 144, 146 (1984) ("wilful" element denotes intent
 to kill),we believe that the law of this state has always been, and we now
 expressly hold, that premeditated first-degree murder requires the State to
 prove intent to kill. (FN3) Case law that suggests otherwise is overruled to
 the extent that it is inconsistent with this affirmation of Vermont law.
 Our holding today does not concern felony murder or second-degree murder, in
 which the mental element may be premised on any of the three components of
 the definition of malice enunciated in Doucette.  See People v. Hill, 94
 Mich. App.  777, 782, 288 N.W.2d 408, 411 (1979). (FN4)
      Our holding does suggest that continued use of the archaic and arcane
 language associated with the word "malice" could only be a source of
 confusion to jurors.  Accordingly, because the term "malice aforethought"
 has no real meaning other than denoting various mental states, see 2 C.
 Torcia, Wharton's Criminal Law { 137, at 170 (14th ed. 1979), and because it
 has been the source of much confusion in the case law and in jury
 instructions, see Aaron, 409 Mich. at 714, 299 N.W.2d  at 319, the trial
 courts should refrain from using the term in jury instructions. (FN5) Rather
 than describing malice as a requisite element of murder, the trial courts
 should indicate the appropriate states of mind required for each type of
 murder.  See Woods, 416 Mich. at 626, 331 N.W.2d  at 727 (in order to make
 instructions "accurate, fair and comprehensible to the average person,"
 supreme court prohibited trial courts from using "malice" language in jury
 charge).
      Although we agree with defendant that the use of the tripartite
 definition of malice in the charge in this case had potential for confusion,
 we find no plain error.  After explaining to the jury that malice is ill
 will, and that it could be shown "by callous and wanton disregard of the
 likelihood that one's behavior may naturally cause death or great bodily
 harm," or "by intent to do such harm or by intent to kill," the court
 defined premeditation and then instructed as follows:
             It is not enough that the Defendant is shown to have
           had time to premeditate.  He must actually have
           premeditated as well as actually intended to kill to be
           guilty of first degree murder.  (Emphasis added.)
 The court explicitly stated that the State must prove each element beyond a
 reasonable doubt, and that the element of premeditation requires that
 defendant actually intend to kill.  Viewed in its entirety, the charge did
 not constitute plain error.  See State v. Norton, 147 Vt. at 235, 514 A.2d 
 at 1061; see also State v. Joy, 452 A.2d 408, 411 (Me. 1982) (murder case in
 which court held that a charge strictly conforming to current law can hardly
 be called plain error).
      Other jurisdictions, in similar situations, have refused to find
 reversible error.  For example, in People v. Johnson, 93 Mich. App. 667,
 670-72, 287 N.W.2d 311, 313-14 (1979), the defendant argued for the first
 time on appeal that the court's charge, which included the same tripartite
 definition of malice charged here, permitted the jury to convict him of
 first-degree murder based on the conclusion that he created a high risk of
 death rather than that he intended to kill.  The appellate court acknow-
 ledged that an actual intent to kill was required to convict a person of
 first-degree murder other than felony murder, but concluded that on the
 whole the charge was proper because the court had also instructed the jury
 that a first-degree murder conviction required an intent to kill.  Id.; see
 also Williams v. Abshire, 544 F. Supp. 315, 320 (E.D. Mich. 1982) (no error
 where court gave implied malice definition but also instructed the jury that
 intent to kill was required for crime charged); People v. Ogen, 168 Cal. App. 3d 611, 618-19, 215 Cal. Rptr. 16, 20 (1985) (no error where court
 instructed on malice in general, defined express malice, and then indicated
 that premeditated murder requires a showing of express malice); cf. People
 v. Murtishaw, 29 Cal. App. 3d 733, 763, 631 P.2d 446, 463-64, 175 Cal. Rptr. 738, 755-56 (1981) (implied malice and intent-to-kill instructions
 cannot coexist; however, charge was not prejudicial because evidence showed
 a virtual certainty that the defendant intended to kill his victim).
        Considering all the evidence presented in the case, the state of the
 law on malice, and the trial court's explicit instruction on intent to kill,
 reversal is not warranted.  See State v. Burgess, 96 Mich. App. 390, 399-
 400, 292 N.W.2d 209, 213 (1980) (although court should have made the
 distinction between the mental states required by express and implied
 malice, its failure to do so was not plain error considering the evidence of
 intent to kill and the court's instruction that the evidence must show "a
 preconceived design to 'take the victim's life'").
      Nor is reversal warranted by the similarity of the language of the
 implied malice instruction and the involuntary manslaughter instruction.
 Both instructions included language referring to a wanton disregard for the
 risk of death or serious bodily injury.  Immediately preceding the malice
 instruction, however, the court explained that an act of murder must be
 "done on purpose, [] to be distinguished from accidental or mistaken."  As
 stated, the court also charged that a first-degree murder conviction
 requires the jury to find that defendant actually intended to kill.  On the
 other hand, the court defined involuntary manslaughter as "the killing of
 another human being but not accompanied by any intention to take life."  The
 court further explained that involuntary manslaughter is the result of reck-
 lessness or "a gross deviation from the standard of care that a reasonable
 person would observe in the same situation."  The jury convicted defendant
 of first-degree murder.  Because the instructions plainly stated the
 different mental elements required for convictions of first-degree murder
 and involuntary manslaughter, there is no plain error, if any error at 
 all. (FN6)
                                     C.
      Defendant also argues that the court's instruction allowing the jury to
 consider evidence that he aided the victim in passing bad checks was plain
 error because it permitted the jury to consider his character in determining
 his guilt.  We disagree.
      The court instructed as follows:
           There has been some discussion in this case about
         other crimes than homicide.  The Defendant here is
         charged with one crime only.  He is accused of murdering
         [the victim].  However, in considering the evidence you
         may consider the following, if you deem it pertinent.

           Passing checks for which there are not sufficient
         funds to cover those checks is a crime.  A person who
         aids in such a crime or counsels or solicits another to
         commit such a crime, is himself guilty of that crime.
 The court did not specifically state that evidence of passing bad checks
 could be considered only as evidence of a motive for the killing, the pur-
 pose for which it was presented.  Nevertheless, considering that the court
 informed the jury that defendant was charged with only one crime, and that
 the uncharged bad acts were unrelated to the charged crime, we find no
 plain error.  See State v. Holcomb, ___ Vt. ___, ___, 590 A.2d 894, 897
 (1991) (no plain error where uncharged bad act was entirely different and
 thus created no risk that jury would use the evidence as proof that the
 defendant was predisposed to commit charged crime).
                                    III.
      Defendant argues that the trial judge also committed plain error by
 intervening excessively on behalf of the State when he asked the state
 medical examiner several questions concerning the possible effects of
 hypothermia.  According to defendant, testimony elicited by the judge
 allowed the State to prove its case by establishing that hypothermia may
 have caused the victim to slip from the tree into the water where he
 drowned.
      Defendant's argument is without merit.  The medical examiner had
 already testified that hypothermia could have resulted in the victim's
 impaired judgment and loss of consciousness.  The court asked whether such
 impaired judgment would have outward manifestations obvious to the average
 person, and the examiner answered that in an extreme case, a victim may
 have difficulty grasping objects or attempting to rescue himself.  In
 further response to the court's inquiry, the examiner stated that he had no
 opinion as to whether any such manifestations occurred in this instance.
 The intervention here cannot be compared to the intervention that occurred
 in the cases cited by defendant, where the court's statements and examin-
 ation of the witnesses gave the impression that the judge favored the pros-
 ecution.  See United States v. Singer, 710 F.2d 431, 436 (8th Cir. 1983)
 (judge coached the prosecution "throughout the entire proceeding"); West v.
 State, 519 So. 2d 418, 421 (Miss. 1988) (thirty interventions, twenty of
 which the judge coached the prosecutor on what to ask).  Here, on one
 occasion the judge attempted to clarify testimony that had become confused
 during several redirect and recross examinations.  There was no abuse of
 discretion on the court's part.  See V.R.E. 614(b) ("court may interrogate
 witnesses, whether called by itself or by a party"); State v. Shaw, 149 Vt.
 275, 281-82, 542 A.2d 1106, 1109-10 (1987).
                                     IV.
      Next, defendant argues that the court erred by permitting a juror to
 separate from a sequestered jury during trial and then failing to examine
 the juror, or the court officer who accompanied him, in order to assure that
 the juror was not prejudicially influenced against defendant during his
 absence.  This argument is also without merit.  On the second day of trial,
 before any testimony was heard, the trial court informed counsel that it was
 considering allowing one of the jurors, who was the associate director of
 the University of Vermont's physical plant, to leave for two hours to
 respond to an emergency situation at one of the university dormitories.  The
 court stated that "a court officer will be with [the juror] at all times so
 that he won't discuss the case or hear about the case with anybody."  The
 court allowed the juror to leave despite the objection of defendant, which
 was predicated on his concern that the juror's departure would "delay the
 trial."  Before the juror left, the court told the officer "to ensure that
 nobody discusses the case with [the juror]," and warned the juror not to
 discuss the case with anyone.  Approximately two hours later, the juror
 returned and the trial proceeded without the court examining the officer or
 the juror, and without any request for such an examination.
      As defendant points out, one claiming an impartial jury due to "any
 suspicious taint by extraneous influences" need only "demonstrate that the
 irregularity had the capacity to influence the result, not that it actually
 did so."  State v. Griffin, 152 Vt. 41, 45, 563 A.2d 642, 645 (1989); see
 State v. Onorato, 142 Vt. 99, 106, 453 A.2d 393, 396 (1982) (reversible
 error occurs when, "upon discovering the possibility of jury prejudice," the
 court "fails to voir dire the jury to determine if in fact any prejudice has
 been created").  Here, however, there was absolutely no indication of
 extraneous influence upon the juror.  Cf. Onorato, 142 Vt. at 105, 453 A.2d 
 at 396 (during overnight recess, juror heard that the trial was defendant's
 second trial); State v. Woodard, 134 Vt. 154, 155, 353 A.2d 321, 321 (1976)
 (juror overheard telephone conversation in which the defendant stated that
 he was hung unless he had an alibi).  Consequently, the court's failure to
 examine the officer or the juror was not reversible error, if error at all.
                                     V.
      Finally, defendant asserts that prosecution by information in cases
 where the defendant is charged with crimes punishable by life imprisonment
 violates Chapter I, Article 10 of the Vermont Constitution, which provides,
 in part, that no person can be "justly deprived of his or her liberty,
 except by the laws of the land, or the judgment of his [or her] peers."  We
 disagree.
      In State v. Stimpson, 78 Vt. 124, 139, 62 A. 14, 19 (1905), this Court
 ruled that the above constitutional provision "does not require common law
 felonies to be prosecuted by indictment."  The Court based its decision on
 the fact that the challenged statute in that case, which allowed state's
 attorneys to prosecute most crimes by information, provided the due process
 of law required by the Constitution.  Id. at 133-39, 62 A.  at 17-19.  At
 this time, the procedure for prosecuting persons is governed by V.R.Cr.P. 7,
 which provides that "[a]ny offense may be prosecuted by indictment or
 information at the option of the prosecuting officer."  As stated in the
 reporter's notes to that rule, "[t]he protection of an independent finding
 of probable cause which the indictment gives the defendant is amply supplied
 by the provisions of Rules 4(b) and 5(c), which require such a finding by a
 judicial officer in the case of a prosecution upon information."  Given this
 protection, we see no reason to overturn established law and practice by
 holding that the Vermont Constitution requires prosecution by indictment for
 crimes carrying a life sentence.  See State v. Barr, 126 Vt. 112, 117, 223 A.2d 462, 466 (1966).
      Affirmed.


                                    FOR THE COURT:





                                    _______________________________________
                                    Associate Justice



FN1.   The holding in Commonwealth v. Puleio, 394 Mass. 101, 108, 474 N.E.2d 1078, 1083 (1985) is not that different from our holding today because, as
 noted above, intent to kill can be proved by showing that the defendant was
 aware that death was substantially certain to occur.  Moreover, the
 Massachusetts statute differs from ours in that first-degree murder is,
 among other things, "'[m]urder committed with deliberately premeditated
 malice aforethought . . . .'"  Id. at 107, 474 N.E.2d  at 1082 (quoting G.L.
 c. 265, { 1).  Thus, the statute requires that the malice, rather than the
 killing, be premeditated.
     At least one federal case, construing a federal murder statute similar
 to ours, see 18 U.S.C. { 1111 (1982), has suggested that the government need
 only show wanton disregard to support a conviction of either first- or
 second-degree murder.  See United States v. Shaw, 701 F.2d 367, 392 n.20
 (5th Cir. 1983), cert. denied, 465 U.S. 1067 (1984).  That same case,
 however, held that deliberation and premeditation "involve a prior design to
 commit murder."  Id. at 392.

FN2.   We note that State v. Battick, 133 Vt. 558, 561, 349 A.2d 221, 223
 (1975) also involved a felony murder.  In that case, however, the Court
 indicated that the trial court found not only that the crime was committed
 during the perpetration of a felony, but that it was premeditated.

FN3.    Intent to kill may be found when the assailant desires that death
 result, or when the assailant knows or is substantially certain that death
 will result.  2 W. LaFave & A. Scott, Substantive Criminal Law { 7.2(a), at
 191 (1986).

FN4.   Manslaughter is generally defined as an unlawful killing of a person
 absent malice aforethought.  See State v. Duff, 150 Vt. 329, 331, 554 A.2d 214, 215 (1988).  In straightforward terminology, voluntary manslaughter is
 an intentional killing committed under extenuating circumstances that would
 mitigate, but not justify, the killing, such as provocation that would cause
 a reasonable person to lose self control.  See State v. Wheelock, No. 89-
 475, slip op. at 8 (Vt. April 3, 1992); 2 W. LaFave & A. Scott, Substantive
 Criminal Law { 7.10, at 252 (1986).  Involuntary manslaughter is an
 unintentional killing where the assailant's failure to perceive the risk of
 death or injury constitutes gross negligence.  Wheelock, slip op. at 8;
 State v. Stanislaw, 153 Vt. 517, 525, 573 A.2d 286, 291 (1990).

FN5.   We have the authority to restrict the use of the word "malice"
 because it is a common-law concept that has not been incorporated into 13
 V.S.A. { 2301.  See People v. Woods, 416 Mich. 581, 626-27 n.14, 331 N.W.2d 707, 727 n.14 (1982).

FN6.    In another case issued today, State v. Brunell, No. 89-628, slip op.
 at 8 (Vt. May 22, 1992), we pointed out that the difference between the
 implied intent to kill required for a second-degree murder conviction, and
 the criminally negligent conduct required for an involuntary manslaughter
 conviction, is "the defendant's awareness of the risk and the degree of that
 risk."  To be convicted of murder, the defendant must be subjectively aware
 of a very high risk of death or serious bodily injury, while the defendant
 convicted of involuntary manslaughter need not be aware of the risk, which
 is somewhat less than the risk in the case of murder.  Id.; see People v.
 Watson, 30 Cal. 3d 290, 296, 637 P.2d 279, 283, 179 Cal. Rptr. 43, 47
 (1981) (though definitions of implied malice and gross negligence bear a
 general similarity, they are not the same; implied malice "contemplates a
 subjective awareness of a higher degree of risk than does gross
 negligence").