Borradaile, J.
A jury found the defendants guilty of murder in the second degree. MCLA 750.317; MSA 28.549. Ronald Carter was sentenced to life imprisonment, Joe Fountain was sentenced to a term of 7-1/2 to 15 years in prison, and Melvin Anderson was sentenced to a term of 5 to 10 years in prison. Two codefendants, Bruce Hunter and Rodney Braxton, were found not guilty. All five defendants were represented by separate counsel at the trial.
The deceased, Charles Flagg, was shot and stabbed repeatedly, and could have died from either the gunshot or stab wounds. Carter admitted firing the shots, but claimed they were in self-defense. No one admitted inflicting the stab wounds.
It was the theory of the people that there had been an altercation between the defendants and another group of young men at a Shrimp Hut in Detroit. A short while later the two groups met in front of a house on McClellan Street. When Charles Flagg attempted to act as a peacemaker, he was shot by Carter and stabbed and kicked by the other defendants.
It was Carter’s testimony that two cars pulled up on McClellan and five or six men got out and
jumped on Anderson. When he went to Anderson’s aid, Carter was hit from behind and knocked to the ground. He then grabbed a gun and fired into the air telling the group of people fighting him and his group to stop and go back. He said that when they kept coming he fired into the group in self-defense without intending to kill anyone.
Anderson testified that he was attacked and hit with a bicycle rim and a brick. He said Carter came to.his aid.
Fountain testified that he was in the house watching television and was not involved in the incident until after Carter and Anderson came into the house following the shooting of Flagg.
Appellate counsel argues that the trial judge committed reversible error when she spoke to a juror in chambers in the absence of defendants and their counsel, refused to reveal the substance of her conversation to counsel, and subsequently
sub sponte
excused the juror. The people claim that such action was authorized by MCLA 768.18; MSA 28.1041, which provides where a jury of 14 has been impaneled that should any condition arise during the trial which in the opinion of the court justifies the excusal of any of the jurors, the court may do so and the trial shall proceed unless the number of jurors be reduced to less than 12.
In the present case the jury of 14 was seated and the trial commenced on June 19, 1969. Midway in the trial a juror apparently asked to speak with the judge privately. On Monday morning, June 30, 1969, there was an in-chambers colloquy between the court and the juror, Mrs. Buckner.
The juror reported a telephone call and fears that she had therefrom if there were guilty verdicts in the case. Mrs. Buckner continued to sit with the jury through June 30, July 1 and July 2.
On Tuesday afternoon, July 1, 1969, the five defense counsel inquired of the court as to the meetings between the court and two of the jurors.
The court advised counsel that one juror’s matter was of no consequence, but that the other juror had a problem that was “critical”. All defense counsel stipulated to the release of the second juror except Carter’s counsel, Mrs. Ritter. She maintained that her client was entitled to disclosure of the reason.
On Wednesday morning, July 2, 1969, Mrs. Ritter moved for dismissal of the case against Carter on the basis that the judge had denied her request for disclosure.
She specifically argued that there
might be possible contamination of other jurors, but that without disclosure she could not evaluate that possibility. The motion was denied.
Mrs. Buckner did not sit on the jury on Thursday, July 3, 1969, or thereafter. However, she had already sat on the jury for three full days of testimony following her disclosure to the court, and counsel for the defendants were not told the substance of the disclosure.
In
People v Nickopoulos,
40 Mich App 146, 151 (1972), by Judge Holbrook, this Court said:
"The defendants and their attorneys had a constitutional right to be present at. the inquiry concerning jury tampering conducted by the trial judge in this case. We rule that such an inquiry constitutes a critical stage in the proceedings.
"The failure of the court to afford defendants in the instant case the right to be present at the inquiry, absent a waiver of this constitutional privilege, entitles defendants to a new trial without proof of actual injury or prejudice.
People v Medcoff, supra
[344 Mich 108 (1955)].
"This ruling is in no sense to be construed as a
disapproval or censure of the trial court’s action in questioning the jurors concerning the phone calls. This was both necessary and commendable. Judicial objection is based upon the defendants’ right to be present at every stage of their trial where their substantial rights might be affected. MCLA 768.3; MSA 28.1026; Const 1963, art I, §20.”
Similarly, in the present case the defendants and their attorneys had a constitutional right to be present at the inquiry concerning jury tampering conducted by the trial judge on June 30, 1969. At the conclusion of such inquiry, the trial judge had the authority pursuant to MCLA 768.18,
supra,
to excuse the juror if in her opinion such action was justified. Since the court failed to afford the defendants the right to be present at the inquiry, Ronald Carter is entitled to a new trial without proof of actual injury or prejudice, his attorney having clearly preserved the issue on the record. Although counsel for Joe Fountain and Melvin Anderson stipulated to the release of the juror, we hold that Fountain and Anderson also are entitled to a new tried because to hold otherwise on the facts of this ceise might result in a miscarriage of justice.
Two other issues raised on appeal will be discussed in order to decreeise the likelihood of error during retried. The defendemts claim that the court should have instructed the jury on manslaughter and assault with intent to do great bodily harm less than murder. The trial court limited the possible verdicts to murder in the second degree and not guilty. The record does not contain defense counsel’s written requests for instructions. See
People v Wynn,
386 Mich 627 (1972). We do find, however, that the testimony presented at the trial would have supported instructions on lesser included offenses if requested.
For example, any person who wounds any other
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Borradaile, J.
A jury found the defendants guilty of murder in the second degree. MCLA 750.317; MSA 28.549. Ronald Carter was sentenced to life imprisonment, Joe Fountain was sentenced to a term of 7-1/2 to 15 years in prison, and Melvin Anderson was sentenced to a term of 5 to 10 years in prison. Two codefendants, Bruce Hunter and Rodney Braxton, were found not guilty. All five defendants were represented by separate counsel at the trial.
The deceased, Charles Flagg, was shot and stabbed repeatedly, and could have died from either the gunshot or stab wounds. Carter admitted firing the shots, but claimed they were in self-defense. No one admitted inflicting the stab wounds.
It was the theory of the people that there had been an altercation between the defendants and another group of young men at a Shrimp Hut in Detroit. A short while later the two groups met in front of a house on McClellan Street. When Charles Flagg attempted to act as a peacemaker, he was shot by Carter and stabbed and kicked by the other defendants.
It was Carter’s testimony that two cars pulled up on McClellan and five or six men got out and
jumped on Anderson. When he went to Anderson’s aid, Carter was hit from behind and knocked to the ground. He then grabbed a gun and fired into the air telling the group of people fighting him and his group to stop and go back. He said that when they kept coming he fired into the group in self-defense without intending to kill anyone.
Anderson testified that he was attacked and hit with a bicycle rim and a brick. He said Carter came to.his aid.
Fountain testified that he was in the house watching television and was not involved in the incident until after Carter and Anderson came into the house following the shooting of Flagg.
Appellate counsel argues that the trial judge committed reversible error when she spoke to a juror in chambers in the absence of defendants and their counsel, refused to reveal the substance of her conversation to counsel, and subsequently
sub sponte
excused the juror. The people claim that such action was authorized by MCLA 768.18; MSA 28.1041, which provides where a jury of 14 has been impaneled that should any condition arise during the trial which in the opinion of the court justifies the excusal of any of the jurors, the court may do so and the trial shall proceed unless the number of jurors be reduced to less than 12.
In the present case the jury of 14 was seated and the trial commenced on June 19, 1969. Midway in the trial a juror apparently asked to speak with the judge privately. On Monday morning, June 30, 1969, there was an in-chambers colloquy between the court and the juror, Mrs. Buckner.
The juror reported a telephone call and fears that she had therefrom if there were guilty verdicts in the case. Mrs. Buckner continued to sit with the jury through June 30, July 1 and July 2.
On Tuesday afternoon, July 1, 1969, the five defense counsel inquired of the court as to the meetings between the court and two of the jurors.
The court advised counsel that one juror’s matter was of no consequence, but that the other juror had a problem that was “critical”. All defense counsel stipulated to the release of the second juror except Carter’s counsel, Mrs. Ritter. She maintained that her client was entitled to disclosure of the reason.
On Wednesday morning, July 2, 1969, Mrs. Ritter moved for dismissal of the case against Carter on the basis that the judge had denied her request for disclosure.
She specifically argued that there
might be possible contamination of other jurors, but that without disclosure she could not evaluate that possibility. The motion was denied.
Mrs. Buckner did not sit on the jury on Thursday, July 3, 1969, or thereafter. However, she had already sat on the jury for three full days of testimony following her disclosure to the court, and counsel for the defendants were not told the substance of the disclosure.
In
People v Nickopoulos,
40 Mich App 146, 151 (1972), by Judge Holbrook, this Court said:
"The defendants and their attorneys had a constitutional right to be present at. the inquiry concerning jury tampering conducted by the trial judge in this case. We rule that such an inquiry constitutes a critical stage in the proceedings.
"The failure of the court to afford defendants in the instant case the right to be present at the inquiry, absent a waiver of this constitutional privilege, entitles defendants to a new trial without proof of actual injury or prejudice.
People v Medcoff, supra
[344 Mich 108 (1955)].
"This ruling is in no sense to be construed as a
disapproval or censure of the trial court’s action in questioning the jurors concerning the phone calls. This was both necessary and commendable. Judicial objection is based upon the defendants’ right to be present at every stage of their trial where their substantial rights might be affected. MCLA 768.3; MSA 28.1026; Const 1963, art I, §20.”
Similarly, in the present case the defendants and their attorneys had a constitutional right to be present at the inquiry concerning jury tampering conducted by the trial judge on June 30, 1969. At the conclusion of such inquiry, the trial judge had the authority pursuant to MCLA 768.18,
supra,
to excuse the juror if in her opinion such action was justified. Since the court failed to afford the defendants the right to be present at the inquiry, Ronald Carter is entitled to a new trial without proof of actual injury or prejudice, his attorney having clearly preserved the issue on the record. Although counsel for Joe Fountain and Melvin Anderson stipulated to the release of the juror, we hold that Fountain and Anderson also are entitled to a new tried because to hold otherwise on the facts of this ceise might result in a miscarriage of justice.
Two other issues raised on appeal will be discussed in order to decreeise the likelihood of error during retried. The defendemts claim that the court should have instructed the jury on manslaughter and assault with intent to do great bodily harm less than murder. The trial court limited the possible verdicts to murder in the second degree and not guilty. The record does not contain defense counsel’s written requests for instructions. See
People v Wynn,
386 Mich 627 (1972). We do find, however, that the testimony presented at the trial would have supported instructions on lesser included offenses if requested.
For example, any person who wounds any other
person by the discharge of any firearm pointed intentionally but without malice at such person is guilty of manslaughter if death ensues from the wound. MCLA 750.329; MSA 28.561. If the jury had been instructed on manslaughter, it could have found that the evidence did not prove self-defense but that it did prove the wounding of Charles Flagg from the discharge of a firearm pointed intentionally at him but without malice and that he died from the wounds. Similarly, the jury might have found common-law manslaughter which has been defined as the unlawful killing of another without malice, express or implied.
People v Myers,
30 Mich App 409 (1971). Compare
People v Morrin,
31 Mich App 301 (1971). The testimony would also support an instruction on assault with intent to do great bodily harm less than murder. MCLA 750.84; MSA 28.279.
The other issue raised meriting discussion is the contention that the trial court erred in instructing the jury that every witness was presumed to speak the truth. While no objection was made to the instruction and this Court found no error in a similar instruction in
People v Poe,
27 Mich App 422 (1970),
leave granted
384 Mich 799, we think the trial court should not give the instruction upon retrial. Such an instruction has been held to derogate from the jury’s sole right to determine the credibility of witnesses, and to conflict with the presumption of innocence of a defendant.
United States v Meisch,
370 F2d 768 (CA 3, 1966). Additionally, it has been said that it shifts the prosecution’s burden of proving guilt beyond a reasonable doubt upon the presentation of even the slightest incriminating testimony.
United States v Birmingham,
447 F2d 1313 (CA 10, 1971). See also.
United States v Griffin,
382 F2d 823 (CA 6, 1967).
Reversed and remanded for a new trial.
All concurred.