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April 30, 1976


Appeal from Kent, John H. Vander Wal, J.

Danhof, P. J., and D. E. Holbrook and Allen, JJ.


1. Witnesses -- -- Cross-Examination -- Arrest Record -- Hearings -- Truth and Veracity.

A prosecutor may not test the credibility of character witnesses who are testifying to the defendant's reputation for truth and veracity by questioning them about arrests or misconduct of the defendant unless the prosecutor first substantiates the arrests out of the jury's presence, and he may then use only those arrests which relate to truth and veracity.

2. Assault and Battery -- Intent -- Instructions to Jury -- Homicide -- Elements.

An instruction to a jury that "the law defines an assault as * * * an offer or attempt to do a physical injury, a corporal injury, to another with apparent ability to carry it out," which was immediately followed by the definition of the element of intent to murder was adequate to inform the jury of the elements of the crime of assault with intent to murder.

3. Assault and Battery -- Instructions to Jury -- Misleading Instructions.

An instruction to a jury in a trial for assault with intent to murder that "he law presumes that every man intends the legitimate consequences of his own acts that are knowingly and intentionally committed and cannot be justified or excused on the grounds of an innocent intent because they are responsible for natural consequences of their acts" is misleading.

The opinion of the court was delivered by: Per Curiam

Lewis Robinson and Inzell Robinson were convicted of assault with intent to murder. Defendants appeal.

Defendants, Lewis and Inzell Robinson, were jury tried and convicted of assault with intent to murder, MCLA 750.83; MSA 28.278, sentenced to 10 to 16 years in prison, and appeal of right.

It would be of insignificant utility to present a detailed recitation of the trial testimony. Suffice it to say that the case arose out of a shooting incident involving defendants and a police officer who attempted to ticket Lewis Robinson for a broken taillight. The officer's version is essentially that Lewis Robinson threatened to kill him and reached to his rear pocket, that he grabbed Lewis, that Lewis prompted his brother to get a weapon from defendants' vehicle and shoot the officer, and that Inzell Robinson aimed a rifle at the officer, fired and missed. Further fire was exchanged while the officer struggled with Lewis and summoned assistance. Eventually, other police arrived and placed defendants under arrest. This version was supported in part by a passerby. According to the trial testimony of the Robinson brothers, they never intended to harm the officer, the officer overreacted, Lewis was reaching for his billfold when the officer grabbed him and roughed him up, the officer fired first, and Inzell fired his shots in the air. The record reveals that a total of seven shots were fired, and that no one was injured, most of the bullets having struck the police cruiser or defendants' vehicle.

During the course of trial, defense counsel called character witnesses for defendants. The prosecutor cross-examined several of these witnesses concerning whether they knew *fn1 of defendants' prior arrests. The trial court failed to conduct an examination outside the jury to substantiate the arrests before it allowed their use to test the candor and knowledge of the character witnesses. Further, the trial court gave no instruction as to the limited purpose of the arrests, although counsel requested such, and the court informed it would do so at the proper time. This was reversible error. People v Dorrikas, 354 Mich 303; 92 NW2d 305 (1958). Should character witnesses be produced at a new trial, and should their testimony be restricted to defendants' reputations in the community for truth and veracity, the prosecutor may not test the credibility of the character witnesses via arrests or misconduct of defendants that are unrelated to truth and veracity. People v McClow, 40 Mich App 185, 195; 198 NW2d 707 (1972).

Defendant Lewis Robinson was charged as an aider and abettor to his brother. Defendants contend the trial court failed to inform the jury that an aider and abettor must possess the requisite intent or have knowledge that the principal has the requisite intent, *fn2 and failed to instruct that the jury must find guilt of the principal before the aider and abettor may be convicted. *fn3 We have reviewed the instructions and are convinced ...

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