Opinion
Docket No. 70122.
Decided July 29, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Stuart B. Lev), for defendant on appeal.
Before: R.B. BURNS, P.J., and ALLEN and D.E. HOLBROOK, JR., JJ.
This case comes to us by an order of the Supreme Court wherein they state:
"[I]n lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), this case is remanded to the Court of Appeals for consideration of the question of whether it was reversible error for the trial court to instruct the jury that `it is presumed that a person intends the natural consequences of his acts' in light of People v Wright, 408 Mich. 1; 289 N.W.2d 1 (1980), and reconsideration of whether reliance on the defendant's confession to support evidence of premeditation and deliberation so as to warrant a bindover on first-degree murder contravenes this Court's decision in People v Allen, 390 Mich. 383; 212 N.W.2d 21 (1973).
"Jurisdiction is not retained." 417 Mich. 909 (1983).
It should be noted that the defendant did not object to the trial judge's instructions, nor did she raise any such issue on appeal. This is understandable as the trial was conducted August 31, 1979, and People v Wright, 408 Mich. 1; 289 N.W.2d 1 (1980), was decided March 4, 1980.
In Wright the Court found an instruction, "The law presumes that every man or woman intends the natural, the probable, and the legitimate consequences of his or her own willful and voluntary acts", to be unconstitutional.
In our opinion there is no distinction between the two instructions.
We have carefully reviewed the record of the preliminary examination in this case and, other than the defendant's confession, there is no evidence to support premeditation and deliberation so as to warrant a bindover on first-degree murder. People v Allen, 390 Mich. 383; 212 N.W.2d 21 (1973).
The case is reversed and remanded for a new trial on second-degree murder.