People v. Newman

309 N.W.2d 657, 107 Mich. App. 535

Opinions

Per Curiam.

Our brother Bronson has made a very thorough summary of the facts of this case in his dissent.

We find the trial court’s error in its failure to adequately instruct the jury on the theory of the defense of accident to be dispositive of this case. As was held by panels of this Court in People v Morris; 99 Mich App 98; 297 NW2d 623 (1980), and People v Stanley Jones, 69 Mich App 459; 245 NW2d 91 (1976), where the theory of accidental homicide is central in the defendant’s trial, even where the defendant failed to request an instruction on that defense, it is error requiring reversal for the trial court to fail to adequately instruct the jury on the defense so as to focus the jury’s attention on that central issue.

Defendant here advanced the theory of accident throughout his defense. The trial court instructed the jury on the defense of accident as it pertained to first- and second-degree murder but not as it pertained to voluntary manslaughter. Therefore, it was possible that even though the jury was instructed to consider the court’s instructions as a whole it could have concluded that the defense of accident applied only to the charges of first- and second-degree murder and not to voluntary manslaughter.

We cannot say with certainty that if the jury had been instructed that accident was a defense to voluntary manslaughter it would have convicted defendant of that crime. We reverse defendant’s conviction of voluntary manslaughter and remand for entry of judgment of conviction of involuntary manslaughter. We grant the prosecution the option of vacating that conviction and seeking a new trial in this case.

As to the remaining issues raised on appeal by this defendant, we find no merit thereto and concur in the disposition accorded them by Judge Bronson.

Reversed and remanded in accordance with this opinion.