Defendant was informed against in the Saginaw circuit court on the following charge:
"On the 14th day of June in the year one thousand nine hundred and thirty-six, * * * did assault one Robert Culver with a dangerous and offensive weapon to wit: a wrench but without intending to commit the crime of murder and without intending to inflict great bodily harm less than the crime of murder within the meaning of Act No. 328, § 82, Pub. Acts 1931, of Michigan."
The facts briefly stated are as follows: On the 14th day of June, 1936, between the hour of 1 and 2 a. m., defendant was driving an automobile on the Michigan avenue road about one-half mile north of the city limits of the city of Saginaw. He noticed a car parked alongside the highway without any lights showing. He stopped his car and proceeded toward the parked car. When he arrived there, he found Robert Culver and Grace M. Richter seated in the parked car. Defendant asked directions to a number on Maple street in Carrollton, a village adjacent to the city of Saginaw. After some conversation, defendant struck Robert Culver with an instrument, claimed by the prosecution to be a wrench. After partly stunning Robert Culver, the *Page 57 defendant forced Grace M. Richter to leave the parked car and get into his car. All of the above facts are admitted by defendant, but he contends that Robert Culver, the complaining witness, struck him first and that he, the defendant, struck Robert Culver with a pair of pliers instead of a wrench. The cause was submitted to a jury, who found defendant guilty as charged.
Defendant appeals and contends that the trial judge was in error in instructing the jury as follows:
"In regard to the actual striking of Robert Culver by accused, the burden of proof is on the accused to establish justification."
The trial court also gave the following instruction:
"Consequently, before the defendant may be convicted of the offense charged, you must find and determine beyond a reasonable doubt that defendant struck Robert Culver with a dangerous weapon. This must be done by considering all of the testimony in the case. Secondly: You must find and determine beyond a reasonable doubt, from the testimony which you have heard, that defendant had the intent to assault Robert Culver. The burden of proof rests on the people to establish these facts and that beyond a reasonable doubt, and unless you are so satisfied, the defendant should not be convicted of the offense charged against him."
And closed his instructions to the jury with the following:
"If you find from all the testimony here presented that the people have established beyond a reasonable doubt that June 14, 1936, A.D., at the township of Carrollton, Saginaw county, Michigan, defendant did assault one Robert Culver with a dangerous and offensive weapon, to-wit, a wrench, but without intending *Page 58 to commit the crime of murder and without intending to inflict great bodily harm less than the crime of murder within the meaning of the statute in such case made and provided, then your verdict shall be 'guilty.'
"If you find from all the testimony here presented that the people have failed to establish their charge, in whole or in part, beyond a reasonable doubt, then your verdict shall be 'not guilty.' "
In the trial of the cause, the defendant contended that he acted in self-defense, and introduced evidence to that effect, but regardless of what claims the defendant might make the burden of proof in criminal prosecutions remains at all times on the prosecution. In People v. Millard, 53 Mich. 63, we said, "In every criminal case the burden is throughout upon the prosecution."
In People v. McWhorter, 93 Mich. 641, we said:
"The charge of the court was based upon the theory that if the jury found that the people had made a case which convinced them beyond a reasonable doubt that the respondent was guilty as charged, then the burden of proof shifted, and it was incumbent upon the respondent to introduce evidence to restore the presumption of innocence. This is not so in criminal trials. The burden is always upon the people during the whole trial to prove the respondent guilty as charged."
In People v. Asbury, 257 Mich. 297, we said:
"Under settled law of this State, the burden was upon the people to show such facts and circumstances as convinced the jury beyond a reasonable doubt that the killing was not done in self-defense. People v. Coughlin, 65 Mich. 704. The burden was not upon defendant to satisfy the jury that he killed in self-defense. People v. Cathey, 220 Mich. 628; People v. Lintz,251 Mich. 367." *Page 59
See, also, People v. Orr, 243 Mich. 300; People v.Statkiewicz, 247 Mich. 260.
The effect of the trial court's charge was to place the burden of proving justification upon the defendant and in view of previously decided cases was an erroneous instruction. We have in mind 3 Comp. Laws 1929, § 17354 (Stat. Ann. § 28.1096), which provides:
"No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this State in any criminal case, on the ground of misdirection of the jury, * * * unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice."
In People v. O'Hara, 278 Mich. 281, 306, we had occasion to construe the above statute. We there said:
"The test is not whether there were some irregularities but instead did the defendants have a fair and impartial trial."
The above statute was never intended as a cureall for all errors made by the prosecution in the trial of a criminal case. In People v. Cathey, 220 Mich. 628, we said:
"The burden is not on the defendant who makes the defense of self-defense to satisfy the jury of the truth of his claim.People v. Coughlin, 65 Mich. 704. While in other portions of the charge the trial judge instructed the jury generally that the burden was on the people to establish the guilt of the defendant beyond a reasonable doubt, the excerpt just quoted ('Before a person can avail himself of the defense that he used a weapon in the defense of his life, he must satisfy the jury that the defense was necessary; that he did all he could to avoid it, and that it *Page 60 was necessary to protect his own life, or to protect himself from serious bodily harm that would give him reasonable apprehension that his life was in immediate danger.') would lead the jury to understand that the burden of satisfying the jury that the homicide was committed in self-defense was on the defendant. The failure to give defendant's appropriate requests either in the language of counsel or in substance and the charge above quoted both constituted reversible error."
In the case at bar the trial court in closing his instructions to the jury gave proper instructions as to the burden of proof. From the charge, viewed as a whole, the jury may have gotten the idea that, after the prosecution had proved its case beyond a reasonable doubt, the burden rested upon the defendant to prove justification.
For the error pointed out, the conviction should be set aside and a new trial granted.
CHANDLER, NORTH, and WIEST, JJ., concurred with SHARPE, J. *Page 61