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02/09/76 PEOPLE v. SMITH

February 9, 1976

PEOPLE
v.
SMITH



Appeal from Recorder's Court of Detroit, Thomas L. Poindexter, J.

Leave to appeal denied, 397 Mich .

V. J. Brennan, P. J., and Bashara and R. M. Maher, JJ. Bashara, J. (concurring in result). V. J. Brennan, P. J. (dissenting).

SYLLABUS BY THE COURT

Opinion of Maher, J.

1. -- Instructions to Jury -- Elements of Offense -- Requirements of Jury Instructions.

Once a defendant enters a plea of not guilty he has an absolute right to a jury determination upon all essential elements of the offense charged, which must be submitted to the jury in a charge which is neither erroneous nor misleading and which clearly indicates that the prosecution is required to prove each element beyond a reasonable doubt.

2. -- Intent -- Burden of Proof.

Reversal of a criminal conviction of an offense requiring intent is mandated where the burden is erroneously cast upon the defendant to prove the absence of the intent required for conviction.

3. -- Instructions to Jury -- Intent -- Burden of Proof -- Presumption of Guilt.

An instruction to the jury, in a case of assault with intent to commit murder, which improperly directed the jury to look to the defendant for evidence explaining his acts and, absent an explanation, to assume he had the requisite intent, has the overall effect of placing the burden on the defendant to produce evidence in order to overcome a presumption of guilt and is reversibly erroneous.

4. -- Defenses -- Self-Defense -- Elements of Self-Defense.

The defense of self-defense requires a showing that: (1) the accused was without fault or in other words was not the aggressor in bringing about the conflict; (2) under the circumstances as they appeared to the accused at the time he was in danger of death or of suffering great bodily injury; (3) except where assaulted in his own dwelling, there was no way open to the accused for retreat; and (4) the only recourse lay in repelling the attack by physical means.

5. -- Defenses -- Self-Defense -- Aggressors.

A person may only be held legally accountable as an aggressor for responsive conduct by another that is reasonably attributable to the aggressor's own conduct.

6. -- Defenses -- Self-Defense -- Instructions to Jury.

A trial court's instruction to a jury on self-defense, in a trial for assault with intent to murder, that the jury was to consider all the circumstances and facts surrounding the beginning of the incident in order to determine who was the aggressor, was misleading where the defendant had initially become involved in a dispute with an employee at the complainant's gas station and the complainant subsequently became involved in a new dispute which resulted in a gun battle with the defendant which did not involve the employee.

Opinion of Bashara, J.

7. -- Instructions to Jury -- Misleading Instruction -- Self-Defense.

An instruction to the jury which asked them to consider all of the circumstances surrounding the beginning of an incident was erroneous where the jury may have been misled into believing that one who starts an argument is precluded from asserting self-defense.

Opinion of V.J. Brennan, P.J.

8. Appeal and Error -- Instructions to Jury -- Objection -- Manifest ...


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