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“The charge of the court entirely overlooks this presumption and nothing was said upon the subject.”
In People v. Karamol, supra, respondent directly presented a request in writing that the court charge:
"In this case, as in all criminal cases, the defendant is presumed, or held, to be innocent until he is proved guilty, and, before a conviction can be had, he must be proved guilty beyond a reasonable doubt. He is not called upon to prove his innocence; that being presumed without proof.'
This was refused. It was held that the charge as given was not the equivalent of the request, and, counsel having especially made the request in writing, it was error to refuse it. We conclude that under the situation presented here, in the absence of any request upon that subject, the charge is sufficient and can be sustained by previous decisions of this court. People v. Graney, 91 Mich. 646 (52 N. W. 66); People v. Smith, 92 Mich. 10 (52 N. W. 67); People v. McWhorter, 93 Mich. 641 (53 N. W. 780); People v. Ostrander, 110 Mich. 60 (67 N. W. 1079). In the latter case it is said:
"It is next argued that the court neglected to charge the jury as to the presumption of innocence. The attention of the court was not called to this point. The court, however, did very fully instruct the jury that they must be convinced, by the evidence, of the guilt of the accused, beyond any reasonable doubt. This point is ruled by People v. Graney, 91 Mich. 646 [52 N. W. 66); People v. Smith, 92 Mich. 10 [52 N. W. 67].”
Counsel for the defense state in their brief:
“Respondent was caretaker of the Ford farm at Dearborn, in Wayne county. Many trespassers had been accustomed to invade the farm and shoot there regardless of notices posted thereon forbidding such conduct.”
We find no evidence in the record supporting either of these statements. Bryant does testify that “on this farm is posted 'No shooting allowed on private property,'” and the only evidence of what property Dahlman was killed on is that of Leitz, who on cross-examination said:
"I did not know whether I was on private property when I got across the river, and I did not shoot after I crossed the river. I know now that the property we were on is Ford's farm."
We have already stated all that is disclosed of respondent's employment and duties. We find no evidence in the record of any person or persons trespassing and shooting upon the Ford farm before the day in question, beyond a remote inference from the testimony of Bryant that once, in a conversation with respondent regarding people hunting on the premises, he promised respondent "a bushel of corn or something similar for every gun that he brought in. * * He wanted to buy oats and hay for his horse, and the question came up in a joking way, and I told him I would give him five bushels of oats." And McDonald's testimony that Rogulski told him an inspector offered him $5 for getting a gun, and he went after it. It is claimed in his behalf that a desire to obtain the offered reward made respondent especially anxious to get possession of this gun, and when, having secured it, he was in the act of carrying it away, it was accidentally discharged. The court submitted this theory to the jury and said:
“The prosecution claims he was there for the purpose of getting this gun, and that he desired to get hold of this gun for the purpose of exchanging it for a prize that he understood had been offered him for guns that he might collect; that Mr. Ford, the owner of the farm, and his tenants had given out that he would not allow any hunting or shooting upon the farm, and this was one of the means, as it is claimed by the prosecution, that the defendant understood they were taking to prohibit and to avoid having shooting upon the place.
The court also said:
"And so, the whole matter more or less rests upon this particular situation. On this occasion was this a friendly conversation that they were having? Was it entirely agreed to upon the part of the young man and the defendant? Or if, on the occasion in question, he was raising that gun up for the purpose of giving it back to the boys, as has been suggested by counsel, and, in such case, he would not be guilty.”
We find scant evidence in the record to support such a theory. On the contrary, the only witnesses to the transaction testify unequivocally that, after securing possession of the gun, either by a ruse or forcibly taking it, respondent, facing them, ordered them to "come along with me," repeating the order when they hesitated and inquired what was the matter, and, when deceased made the step and asked for his gun, shot him dead, accidentally it is said and found by the jury under direction of the court.
Under the circumstances shown, the question of accidental shooting might well be urged as an issue for the jury. It is undisputed that respondent stood facing deceased and his companions, clear of them, untouched by them, suddenly at variance with them, holding the gun in his hand pointed towards them, and practically at the heart of deceased when it was discharged; and that it was discharged by some act of his there can be no question-guns do not discharge themselves. In support of a theory that this gun was unusually liable to accidental discharge, the testimony of Daniel that it was a cheap gun, not made of good steel, liable to explode, and he would not use it for $50, is urged. The fact that it might be more liable to explode, or burst, when discharged, than some other guns, has no tendency to support such theory. It did not burst; it was simply discharged. There is no evidence it was out of order in any way, nor whether the trigger pull was light or heavy.
Assuming, as his counsel urge, that respondent was caretaker of the property on which he found these boys trespassing and on which he had heard them shooting, that it was his duty to prevent trespassing, that persons had frequently before ignored notices and invaded those premises to shoot there, and in the performance of his duties he went where they were either to drive away or arrest them, it further appearing that when he took their gun and ordered them to go with him, repeating it and they did not obey, deceased at the same time indicating a disposition to repossess himself of the gun, it could well be argued that such facts tended to rouse a hostile impulse, ill feeling, and motive on his part toward deceased resulting in his intentionally using the weapon. It is due to the court to state that the apparent invasion of the province of the jury in instructing them as a matter of fact that respondent fired the shot accidentally was approved by the prosecution.
In submitting the question of involuntary manslaughter to the jury, the court instructed them that if respondent was at the time engaged in an unlawful act, not amounting to a felony, which resulted in the killing, even though death was not intended, he would be guilty of manslaughter, saying among other things:
“Now, I charge you that this man had no business, he had no legal right, to take this gun from these boys. It was a matter that it was not for him to correct, if they were there even as trespassers upon that farm; that even Mr. Ford himself, who was the owner of the place, and had he forbidden persons to go upon that farm and do shooting, would have no right to go down there and take this boy's property from him, and if he did that by force he would be engaged in an unlawful act. And so, in this case, if this man went there for the purpose of taking this gun away from these boys, and he was in the act of taking the gun from them, against their will, taking it way from them, and in the taking it away from them and in the keeping of it and in the carrying of it he even accidentally shot this boy, he is guilty of involuntry manslaughter.'
It is claimed by respondent that this portion of the charge is erroneous on two grounds: First, that under the single, short count of the information filed in this case charging murder a conviction for involuntary manslaughter cannot be had; second, because the court erroneously said to the jury that respondent had no business to take the gun from the boys, and he would be guilty of involuntary manslaughter if he accidentally shot the boy while keeping and carrying away the gun. Such excerpts from the charge must be considered in connection with the evidence in the case and the charge taken as a whole. So considered, we cannot regard them as misleading. The evidence was plain and conclusive that the shooting immediately followed respondent's taking the gun from Leitz, he had not separated from them, but had just stepped back three or four feet, and, facing the three boys, ordered them to come along with him. The entire transaction covered but a very short space of time.
If the evidence showed that respondent obtained possession of this gun from Leitz either by a ruse or by violence, with a wrongful intention to permanently deprive the owner of it and convert it to his own use, by delivering it to Bryant for a reward, or otherwise, his acts would amount in effect to larceny, if not to robbery. If he intentionally but without malice aimed or pointed the gun at Dahlman designing no mischief, but by its discharge death resulted, he was guilty of a careless use of firearms in violation of the statute upon that subject, and the offense was manslaughter. Section 11511, 3 Comp. Laws (5 How. Stat. [2d Ed.]