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acquiesced, and the court instructed the jury that respondent could not be convicted of either murder or voluntary manslaughter under the testimony, but might be convicted of involuntary manslaughter, or “assault and battery, or even an assault.” The record shows respondent was found “guilty of manslaughter" —whether voluntary or involuntary is not stated. He was sentenced to serve not less than two years and not more than five years at Jackson State prison.

On the trial six witnesses were sworn by the prosecution, two companions of Dahlman named Leitz and Woitha, Dr. Bell, who examined the body of Dahlman in the morgue, a game warden named Daniel, and two men named Bryant and McDonald, employees of Henry Ford, owner of the demense upon which the shooting occurred; the three last named having come upon the scene shortly after the shooting, while his companions were carrying away Dahlman's remains.

No testimony was introduced or offered by the defense.

Defendant was in Ford's employ. The nature of his employment is not shown. The only testimony relative to his employment is that of Bryant, who testifies :

"He was working for the Ford people at the time of the shooting.

He started to work for Ford about three weeks before the shooting. I knew nothing about the man before he started to work for

us.'

On the morning of this tragedy, Dahlman and his two companions went out from Detroit to Dearborn together, taking with them a single-barreled shotgun belonging to Dahlman. They were friends and neighbors living in Detroit. Leitz was 20 years old. The ages of the others are not given. Leitz and Woitha worked in factories in Detroit. The record gives no information as to deceased's avocation, age, or size. They are called boys by witnesses and the court. They purposed to and did call upon a family named Jubs, living near Dearborn, where Leitz was acquainted. They asked for George Jubs, apparently a younger member of that family, who was not at home. The three then left their coats in the Jubs barn, walked together across a field towards the River Rouge carrying Dahlman's gun, and on the way they fired it two or three times at a mark. In their rambling they crossed the river when one of them saw a field mouse run under a brush, and they all then devoted themselves to trying to find and get it. While they were so engaged, respondent came up and greeted them, asking what they were looking for. Having been informed, he in apparent good nature joined in the hunt for a few minutes, and finally inquired the kind and name of the gun they had, which at that time Leitz was carrying. Leitz, in response, said he did not know, but would tell as soon as he looked, and just as he was giving the information respondent took the gùn from his hands. Of what then occurred Leitz testifies :

“Just as I said that he pulled the gun out of my hands. Then he says to the three of us, 'Now you will have to come along with me.' I says to him, “What is the matter?' He says, 'Never mind, you will have to come along with me.' 'Just as he says that, Walter stepped, made a kind of step, and says, 'Please Mister, give me my gun.' Just when he said that he fired and killed him.

After Walter was shot, he says, 'I am shot,' and he fell. Rogulski then walked away without looking at the boy who was shot. He had the gun with him and walked up the hill. When Walter fell and Rogulski started up the hill, we ran about 20 yards or so from the River Rouge. Before we ran I looked around and saw a man standing up on the hill about 500 yards away. I could not tell whether he had a gun or not. While running I heard a shot. Where the shot came from I could not tell. It sounded as though it came from above the hill.

Al Woitha stayed in the center of the field,

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and I went back to the house and asked Mr. Jubs to come along with me. I told him that my friend was shot.

He said he was sick so he could not go along with me. I asked him if it would be safe for me to go across and get him. He says yes, he thought it would be all right. So we both went across and got Walter, my friend Al and myself. We found him lying on his face where he fell. He was shot just below the heart and was dead. We picked him up and carried him across the Rouge."

In its general outlines Woitha's testimony as to what occurred is substantially the same as Leitz's, though he does not appear to be as intelligent a witness.

They were the only eyewitnesses who testified, and were closely questioned as to respondent's manner of holding and handling the gun at or about the time it was discharged. Witness Daniel testified that one of them, in detailing the occurrence later, said the gun was cocked when respondent took it, and that it was handed to him. Leitz testified that the gun was not cocked while he was carrying it, that he did not know how it was when respondent took it, and he did not subsequently say that it was cocked when he gave it to respondent, who "grabbed it just like that, right in between me. Q. In between your hands he put his hands? A. Yes.” When asked how respondent was carrying the gun, he replied:

"He was carrying it this way (indicating).
"Q. Meaning the barrel pointed up?
“A. The barrel pointed at us, sir.'
Woitha testifies:

"I was looking for the field mouse, and I see him take the gun.

The gun was hanging down towards the ground. When he fired it he held it straight, under his arm, with one hand on it, and he was facing Walter. Walter cried, 'I am shot, shot,' and fell right down.

I don't know whether Mr. Leitz gave him the gun or whether Rogulski took

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it. I saw Rogulski take the gun away from Dahlman. Rogulski was moving off backward when I saw him.

Rogulski said nothing, none of us had hold of the gun. He raised the gun with one hand; his left hand hanging by his side. Then the gun went off, Walter fell crying 'I am shot.'"

Respondent took the gun to witness McDonald and told him "that somebody had been shot.” McDonald telephoned to Bryant, and they together visited the scene of the shooting. They found tracks and blood marks which they followed up until they found the dead body of Dahlman. Looking around, they saw Leitz and Woitha, running away through a field. Upon being called, they went back. Bryant testifies :

“The fact that their friend was dead did not seem to bother them a great deal. They talked to me in a perfectly calm manner and related, I presume, the whole incident."

McDonald testifies :

“The boys seemed pretty well frightened, highly excited and very nervous.

Daniel, the game warden, who had been notified by telephone, also came upon the scene and examined the body. He testified that the wound was about the size of a quarter of a dollar, on the left side under the nipple. Dr. Bell testified to death by a gunshot wound, to the right of the left nipple, which probably

arter would cover; the wound missing the heart, ranging from front backward and slightly upward.

It is contended that the court committed prejudicial error in failing to charge that respondent is entitled to the presumption of innocence. It must be conceded a well-settled rule of law in criminal prosecutions that the defendant is presumed innocent until that presumption is overcome by testimony establishing the contrary beyond a reasonable doubt, and that it is the duty of the court to so instruct the jury in substance, or in exact words if so requested. Respondent did not present any requests upon that subject, and the court did not so charge in exact language. In support of their contention that this is reversible error, counsel for respondent cite People v. De Fore, 64 Mich. 693 (31 N. W. 585, 8 Am. St. Rep. 863), and the late case of People v. Karamol, 173 Mich. 354 (139 N. W. 1). The charge of the court contains much strong language cautioning the jury as to the burden of proof and rights of respondent, in that connection even taking from the jury, and directing a verdict for respondent on, all questions of murder in either degree and voluntary manslaughter, impressing upon them, we think, by the directions given and substance of the language used the thought embodied in the rule of presumption of innocence, saying:

"There is no presumption that there was manslaughter committed on the part of the defendant, unless it has been proved, and the burden of the proof is that the people must show beyond a reasonable doubt that the defendant is guilty of the offense charged, or of the lesser offense that you may find him guilty of.

If your minds then, after considering all the testimony in the case, are in such a condition that you cannot say to a moral certainty that the defendant is guilty, a reasonable doubt exists in your minds, and you should acquit him. He is here simply as the defendant, and it is the duty of the prosecution to prove him guilty beyond a reasonable doubt.

* Now, it is for you gentlemen to say. In determining these questions, and in weighing all this evidence, the defendant is entitled to every reasonable doubt as I have already said. And should you find in this case that there is a reasonable doubt as to whether this defendant was at that time engaged in this unlawful act, and the shooting was the result of the unlawful act, if there is a reasonable doubt as to that, then you should find for the defendant, not guilty.”

It cannot be said here, as in People v. De Fore, supra, that:

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