During the late morning of November 29, 1969, defendant, the decedent and a group of friends gathered at Early Porchia’s apartment where they were engaged in drinking.
Apparently at some point as defendant, decedent and two others werе about to leave, defendant confronted decedent with a gun. A verbal exchange ensued, the essence of which was an accusation or intimation that decedent was having an affair with defendant’s girlfriend. General argument follоwed and as they all reached the porch the gun which defendant held discharged, fatally wounding Frank York. Defendant indicаted that that particular gun could be and often had been fired just using the hammer. His defense was that *319 the shooting had been аccidental, claiming he was only bantling the gun to decedent who was to sell it for him.
Defendant was charged with first-degree murder. A jury trial resulted in a verdict of guilty of manslaughter. The Court of Appeals affirmed, Levin, J. dissenting.
On appeal, defendant raises three issues, all claiming instructional errors.
1. Did the trial court err in instructing the jury that it could presume that defendant’s unlawful act was done with unlawful intent, where the defense was accident?
2. Did the trial court err in instructing the jury on manslaughter where the prosecutor argued premeditated murder and the defense argued excusable homicide?
3. Did the trial court err in its supplеmental instructions to the jury by misleading them and coercing a verdict?
Defendant’s first issue is that which requires reversal of his conviction. Though persistently contending that the decedent met his demise as the consequence of accident, defendant did not have the benefit of such theory embodied in the trial court’s jury instructions. It appears that the only "defense” аs such explained to the jury was self-defense. And it appears that even it was removed from the jury’s consideration.
Thоugh the fifth of the five enumerated essentials of the people’s case was that defendant had not acted in self-defense, the court later stated in a supplemental instruction that, "Now as I recall the testimony, you need not еven concern yourself with number 5. There is no claim here that there was self-defense.”
*320 True, justifiable homicide was never raised in the case, but excusable homicide was.
The failure of the trial court to explain the legal ingredients оf excusable homicide set the stage for the second error which had the cumulative effect of assuring defendant’s conviction. Having determined the jury was in need of further clarification on the element of intent, the trial court gavе the following supplemental instruction:
"Something has been said about intent in this case, and as bearing upon that question, I say to you that where an unlawful act is done, the law presumes it was done with an unlawful intent.
"Intent, except when confessеd, is a matter of presumption. Intent, unless confessed, can only be proved by acts, as jurors cannot look into thе breast of the accused. And where an act is knowingly committed, it naturally leads to certain consequences, аnd a jury has a right to draw the inference, as they draw all other inferences, from the facts in evidence which to their minds fаirly proves its existence.
"If the direct tendency of a man’s willful act is to produce injury and. injury is in fact produced, the intent to produce it is in law deducible from the act itself, for the law presumes that every person intends the usual consеquences which accompany the use of the means employed in the manner employed.”
• The above quoted instruction was taken from 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 906, Form 338, p 1244.
This instruction is a composite of language from the opinions in
People v Carmichael,
"Where аn unlawful act is done, the law presumes it was done with an unlawful intent, and here the act of administering the poison was unquestiоnable [sic] unlawful.”
Clearly, this language has no applicability to the circumstances of the case at bar.
Examining the Scott cаse we find a charge of assault with intent to murder. The victim, a drunken sailor, attempted unsuccessfully several times to engage defendant Scott in an altercation. Finally the victim approached him, whereupon defendant Scott asked for and was given a loaded gun. He pointed it at the victim over objection and shot him in the face, wounding him seriously but nоt fatally. Regarding intent our Court said:
"The intent to kill must undoubtedly be established, as an inference of fact, to the satisfaction of the jury; but they may draw that inference, as they draw all other inferences, from any fact in evidence which, to their minds, fаirly proves its existence. Intentions can only be proved by acts, as juries can not look into the breast of the criminal. And where any act is knowingly committed which naturally and usually leads to certain consequences, a jury certainly has the right, in the exercise of ordinary sagacity, to draw the inference that such results are intended.”6 Mich 287 , 296.
We conclude that the instructions, when read as a whole, did not present to the jury all the law of the case. Under the facts presented the instructions on intent were erroneous as given. They focused upon intent regarding the consequences of the аct and never even considered the intent to do the act itself. The defendant’s theory of defense was not addrеssed to intent to kill, but rather that *322 the shooting was accidental. However, this element became the subject of prеsumption under the instructions as given.
Defendant was entitled to have all the elements of the crime submitted to the jury in a chаrge which was neither erroneous nor misleading. See
People v Liggett,
Having found reversible error on this issue we find it unnecessary to address ourselves to the others, for we would not presume that the trial court would err in its instructions upon retrial.
Reversed and remanded for new trial.