On Remand

Following his second trial and conviction of second-degree murder (the first trial having failed for want of jury consensus), defendant Paul Mathis appealed unsuccessfully to this Court. People v Paul Mathis, 55 Mich App 694; 223 NW2d 310 (1974). Acting upon defendant’s delayed application, the Supreme Court remanded the case to the Court of Appeals for consideration of the issues raised in defendant’s application for leave. 395 Mich 788 (1975).

Defendant alleges a variety of instructional and *324other errors which, he argues, deprived him of a fair trial. With four of his contentions, we agree.

Defendant’s first claim of error raises an issue that has been resolved in his favor by People v Gilbert, 55 Mich App 168; 222 NW2d 305 (1974), and People v Skowronski, 61 Mich App 71; 232 NW2d 306 (1975). As in Gilbert and Skowronski, the judge below informed the jury that he had determined in a separate hearing that defendant had voluntarily uttered a statement to a policeman concerning the alleged crime. The jury’s task, the judge then declared, was twofold: to determine (1) whether the statement was made; and (2) whether, if made, it was true. Although the defendant did not object at the time, he did object when the matter was revived by the prosecutor in rebuttal argument. While a more prompt objection would have been preferable, we consider defendant’s effort sufficient to have preserved the error on appeal.

We therefore hold with Gilbert and Skowronski, supra, that the trial court erred reversibly in apprising the jury of his earlier finding at the Walker1 hearing. It is senseless to ask the jury whether a statement has been made after informing them that the statement was voluntary. The jury is thus left to wonder whether it is being asked, on the one hand, to side with the judge’s conclusion and proceed to determine the truth of the statement, or on the other, to overrule the judge and conclude on their own that the statement (no matter how voluntary) was never made. We cannot and do not expect a jury, so perplexed, to render a fair and impartial verdict. Consequently, we reverse.1 2

*325Defendant next asserts as error the lower court’s sua spon te instruction on voluntary manslaughter which failed to incorporate a charge on involuntary manslaughter. This issue is a mirror image of a question addressed and resolved in People v Ora Jones, 395 Mich 379, 390-391; 236 NW2d 461 (1975). We trust that it will not recur on retrial.

Defendant argues that reversible error arose from the following instruction:

"The element of malice is present in murder and not in manslaughter. Murder may be and often is committed without any specific intent or actual intention of killing.

"It is not necessary in all cases that one charged with murder must have intended to take the life of the person he slays by his wrongful act.

"If the intent with which he acted shall be equivolent [sic] in legal character to a crime purposely aimed against human life, you find the accused uses upon another a deadly weapon such as a pistol in such a manner that the natural and ordinary probable use of such a deadly weapon in such a manner would be to take the life, the law presumes that such a person so assaulting intended to take the life.

"You may find malice from the use of such a deadly weapon in such a manner in which it was used that the natural consequence would be to result in the death of the deceased.” (Emphasis added).

While the instant instruction is perhaps slightly less egregious than the charge condemned in People v Martin, 392 Mich 553; 221 NW2d 336 (1974), it is nonetheless reversibly erroneous. People v Conway, 70 Mich App 629; 247 NW2d 317 (1976). *326Compare People v Rosemary Gibson, 71 Mich App 543; 248 NW2d 613 (1976). Hence, instructional language speaking in terms of presumed malice or intent should be avoided on retrial, lest the jury’s province as factfinder be invaded and a possible •conviction undermined.

The trial court should also upon remand take pains to. see that the jury is properly instructed on self defense. In this regard, we note that one view of the facts would support defendant’s present argument that he had been residing with the decedent in her home at the time of her death. Thus, this evidence, if believed by the jury, would absolve defendant of an obligation to retreat before resorting to deadly force in self defense. See People v Smith, 54 Mich App 652; 221 NW2d 464 (1974), People v McDaniels, 70 Mich App 469; 245 NW2d 793 (1976), and People v McGrandy, 9 Mich App 187; 156 NW2d 48 (1967). Moreover, with regard to the requirement that defendant be non-aggressive, i.e., without fault in bringing on the deadly affray, People v Bright, 50 Mich App 401, 406; 213 NW2d 279 (1973), the lower court should charge (assuming sufficient evidence is adduced on the point) that defendant "may only be held legally accountable as an aggressor for responsive conduct by another that is reasonably attributable to appellant’s [defendant’s] own conduct”. People v Townes, 391 Mich 578, 592; 218 NW2d 136 (1974). See also LaFave & Scott, Criminal Law, p 395, quoted in People v Joeseype Johnson, 75 Mich App 337; 254 NW2d 667 (1977).

On all other claims of error, we agree with Judge Holbrook’s analysis.

Reversed and remanded.

(dissenting). Defendant was originally charged with second-degree murder, MCLA 750.317; MSA 28.549. During the preliminary examination the prosecutor moved and the court ordered over the defendant’s objection that a count of first-degree murder be added. MCLA 750.316; MSA 28.548. After a trial in which the jury was unable to agree, defendant was retried on the first-degree murder charge and convicted of second-degree murder by another jury on November 4, 1971. He was sentenced to a prison term of 14 to 30 years on December 2, 1971. Defendant requested appointed appellate counsel on January 14, 1972, and counsel was appointed on January 19, 1972. Appointed appellate counsel was removed by the trial court and defendant was allowed to proceed to this Court in propria persona. An order to show cause was later filed against appellate counsel. Defendant’s conviction was affirmed by this Court, 55 Mich App 694; 223 NW2d 310 (1974) . Defendant filed a delayed application for leave to appeal to the Supreme Court on or about June 27, 1975. On November 19, 1975, the Supreme Court remanded this case to this Court for consideration of the issues raised in defendant’s application for leave to appeal, 395 Mich 788 (1975) . Defendant raises numerous issues on appeal.

I

Defendant maintains it was legally and factually improper to charge him with first-degree murder. Defendant was originally charged with second-degree murder. However, during the preliminary examination the prosecutor moved and the court ordered that a charge of first-degree murder be added. Defendant claims error in that there was *328no evidence to support a first-degree murder charge, and that it was improper at that point to add such a charge.

The prosecution must show at a preliminary examination that the offense charged has been committed, there must be evidence on each element of the crime charged or evidence from which these elements may be inferred, including premeditation where the charge is firsbdegree murder. People v Oster, 67 Mich App 490; 241 NW2d 260 (1976). The facts herein could support a finding that defendant did have time to take a second look and premeditate in regards to this murder.

Defendant and the deceased herein lived together off and on for several months. They had previously had several violent arguments. Testimony of a girl who lived with them indicated that on the day of this incident defendant and the deceased had an argument which extended off and on for several hours. The defendant took the deceased’s gun from her purse. The deceased, who owned the home, told the defendant to pack up and leave. Defendant threatened several times to kill the deceased. The evidence indicated that the defendant went to the basement, retrieved a hammer and, thereafter, threatened the deceased with this instrument. The deceased told the defendant she would call the police unless he returned her gun and left the premises. The defendant responded that if she did call the police he would blow her brains out and tell the police that she was shot during a fight. The defendant and the deceased had bad blood between them. Defendant was apparently supported in part, at least, by the deceased who during the course of an argument demanded that he leave. He left the premises but returned shortly with the gun he had taken ear*329lier from the deceased’s purse. Shortly thereafter a shot was heard and defendant was seen with the murder weapon in his hand, emerging from the bathroom where the deceased’s body was. Premeditation can be inferred from the entire circumstances surrounding the killing. People v Vertin, 56 Mich App 669; 224 NW2d 705 (1974), People v Moss, 70 Mich App 18; 245 NW2d 389 (1976). Defendant did attempt to explain away certain of these facts and, if believed, his version of the story may have allowed a jury to find him guilty only of manslaughter or even possibly acquit on the basis of excusable homicide, an accident. Nevertheless, there was evidence which could support an inference of first-degree murder. We are not the examining magistrate. The examining magistrate herein did not err in finding evidence of premeditation.

Procedurally we also feel there was no error. Defendant objected to adding the first-degree murder count at the preliminary examination. An examining magistrate is not bound by the limitations of the written complaint and may examine not only the truth of the charge in the complaint, but may consider other matters connected with the charge which he deems pertinent. People v Hutchinson, 35 Mich App 128; 192 NW2d 395 (1971), People v Dochstader, 274 Mich 238; 264 NW 356 (1936), Yaner v People, 34 Mich 286 (1876). An examining magistrate may in his discretion add a count not originally charged upon a proper motion by the prosecutor. There was no introduction of unfair surprise nor any showing of prejudice. Therefore, the examining magistrate did not abuse his discretion by adding the first-degree murder count. An additional examination on the first-degree murder charge would have revealed *330the exact same evidence. Defendant has not shown how an additional examination would have benefited him or changed the results herein.

The trial court further did not err in denying defendant’s motion for a directed verdict of acquittal of murder in the first degree. See People v Royal, 62 Mich App 756; 233 NW2d 860 (1975). There was sufficient evidence adduced at trial to support an inference of every element of this crime, including premeditation and deliberation. See People v Morrin, 31 Mich App 301; 187 NW2d 434 (1971), lv den 385 Mich 775 (1971), People v Meier, 47 Mich App 179; 209 NW2d 311 (1973), People v Vertin, supra.

II

The trial court herein instructed the jury on first and second-degree murder and on manslaughter. However, the court’s instructions essentially charged only voluntary manslaughter. The prosecution claimed intentional shooting. One of the defenses asserted was that the shooting was accidental, that it occurred during the course of a fight between the defendant and the deceased. See, People v Ora Jones, 395 Mich 379, 393; 236 NW2d 461 (1975).1

The facts in the instant case justify affirmance. The court did instruct the jury on defendant’s theory of accident herein and explained that an accident could even constitute excusable homicide justifying acquittal. That instruction was as follows:

*331"Now the defendant also claims accident. Excusable homicide is a homicide which is committed by accident and misfortune in doing any lawful act by lawful means with usual, ordinary caution and without any unlawful intent, or by accident and misfortune in the heat of passion upon any sudden and sufficient provocation, or upon sudden combat, without any dangerous weapon being used and not done in a cruel or unusual manner.

"So, if you find that the gun went off accidentally while the defendant was trying to disarm Caroline Witt, you may find this to be an excusable homicide.”

The court also properly instructed the jury on self-defense. Defendant, however, sought to have the jury instructed only on first-degree murder.2 Also, at the conclusion of the instructions defendant indicated his approval of the instructions. This *332writer cannot justify reversal where defendant actually sought to narrow the jury’s consideration to one charge, sought to exclude the charge upon which he was convicted and also that which he now asserts was also proper. Defendant fully approved the court’s instructions after they were given, injustice did not result and the jury was instructed as to defendant’s theory of accident in the instant case.

Ill

Defendant contends that the trial court committed reversible error by improperly instructing the jury on the elements of malice. Defendant does correctly state that a trial court commits error when its instructions result in taking the question of malice from the jury. People v Martin, 392 Mich 553; 221 NW2d 336 (1974), People v Conway, 70 Mich App 629; 247 NW2d 317 (1976). Where the instruction is such that the effect is to imply malice as a matter of law from the use of a deadly weapon, error is committed. In Martin the court charged that: " 'if a man kills another suddenly without any warning, where a deadly weapon is used the law implies malice and the killing is murder’ ”. 392 Mich at 560. (Emphasis deleted.) This differs substantially from the charge given herein.

"The element of malice is present in murder and not in manslaughter. Murder may be and often is committed without any specific intent or actual intention of killing.

"It is not necessary in all cases that one charged with murder must have intended to take the life of the person he slays by his wrongful act.

"If the intent with which he acted shall be equivolent [sic] in legal cháracter to a crime purposely aimed *333against human life, you find the accused uses upon another a deadly weapon such as a pistol in such a manner that the natural and ordinary probable use of such a deadly weapon in such a manner would be to take the life, the law presumes that such a person so assaulting intended to take the life.

"You may find malice from the use of such a deadly weapon in such a manner in which it was used that the natural consequence would be to result in the death of the deceased.”

In People v Collins, 166 Mich 4, 7; 131 NW 78 (1911), the Court expressly approved the following charge:

" 'And it is the law that death resulting from an assault, in the absence of any proof to the contrary, is presumed to be felonious — either murder or manslaughter. And where the death is shown to have resulted from the use of a deadly weapon, in the absence of any proof to the contrary, in the absence of any testimony in relation to that, the presumption is that the death was inflicted with malice — with malice aforethought in causing the death, in the assault.’ ”

This charge is indistinguishable from the charge given in the instant case. See also People v Potter, 5 Mich 1 (1858), Wellar v People, 30 Mich 16 (1874), People v Miller, 91 Mich 639; 52 NW 65 (1892), People v Wolf, 95 Mich 625; 55 NW 357 (1893), People v Bourne, 385 Mich 170; 188 NW2d 573 (1971), Justice Brennan concurring, People v Rapier, 43 Mich App 297; 204 NW2d 339 (1972), People v Johnson, 53 Mich App 329; 220 NW2d 65 (1974), People v Juniel, 62 Mich App 529; 233 NW2d 635 (1975), People v Rosemary Gibson, 71 Mich App 543; 248 NW2d 613 (1976).

The fundamental question before this Court is whether the charge took away from the jury’s determination the important element of malice *334aforethought. See People v Rosemary Gibson, supra. This charge did not. The preliminary facts were for the jury to decide. If they did find that the defendant used a deadly weapon in such a way that the natural and ordinary probable use of such weapon would be to take a life, then they were permitted to find the element of malice. There is no error in this instruction. See 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1647, p 1980.

IV

The majority opinion states that: "Thus, this evidence, if believed by the jury, would absolve defendant of an obligation to retreat before resorting to deadly force in self defense”. This writer cannot conclude that this is so. In most of the cases involving co-occupants which hold that a defendant is not required to retreat before resorting to deadly force the defendant and the deceased were husband and wife. People v Lenkevich, 394 Mich 117; 229 NW2d 298 (1975), People v McGrandy, 9 Mich App 187; 156 NW2d 48 (1967), People v Paxton, 47 Mich App 144; 209 NW2d 251 (1973), People v McDaniels, 70 Mich App 469; 245 NW2d 793 (1976). The one case cited by the majority not involving a husband and wife is People v Smith, 54 Mich App 652; 221 NW2d 464 (1974). However, in Smith the defendant and the deceased had been living together for a number of years and in an effort to break off the relationship, defendant moved out of his house until the deceased could find a new residence. The defendant moved in with another woman. On the night of the slaying, the deceased came to the apartment where defendant was staying and an argument ensued. The Court held in Smith that defendant *335was a dweller there and had no duty to retreat. The facts in Smith are distinguishable. At the time of the confrontation in Smith, defendant was a resident of the apartment and the deceased was not a co-resident. The owner or co-occupant in Smith did not deny that defendant was rightfully living at the scene of this confrontation. The facts in the instant case reveal a situation where defendant was not a co-dweller with the deceased. The deceased owned the home, however, defendant lived there off and on. Defendant had a family elsewhere. On the day of this incident the defendant and the deceased argued and defendant was told to pack up and leave. Defendant did not pack up, but did leave for a period of time. Later that day he returned and shortly thereafter the fatal confrontation occurred. Obviously, this is not the same type of situation as considered by this Court in People v McGrandy, supra, or the Supreme Court in People v Lenkevich, supra, or in the other cases cited herein which were considered by this Court. This writer cannot conclude that this was defendant’s dwelling such that it granted him the right not to retreat from an alleged assault by his girlfriend who owned the house and had given defendant notice that he no longer had the right to be there.

V

Defendant also raises several additional issues. Defendant maintains that he was unconstitutionally twice put in jeopardy when the new trial resulted because the jury in the first trial was unable to agree on a verdict. This claim was recently considered by this Court and rejected. People v Morris, 69 Mich App 545; 245 NW2d 126 (1976).

*336Defendant also alleges that the court erred in instructing the jury on certain statements which were attributable to defendant and which were submitted by the prosecution at trial. We would advise the trial court to observe recent decisions of this Court which involve instructions to the jury as to statements attributable to defendants which are submitted at trial. See People v Gilbert, 55 Mich App 168; 222 NW2d 305 (1974), People v Skowronski, 61 Mich App 71; 232 NW2d 306 (1975). An erroneous instruction in regards to a defendant’s statements may well weigh heavily on a jury and invade their factfinding function. Nevertheless, this trial occurred several years prior to our guidance in those decisions. Defendant did not object at trial to these instructions. Defendant was free to familiarize the jury with the circumstances that attended the taking of his statement, including facts bearing on voluntariness, to impeach his credibility or to challenge the fact that it was ever given at all. Therefore, there was no prejudice and no error.

Defendant’s remaining allegations of error are meritless and require no discussion.

This writer votes to affirm.