I would reverse on the authority of Sandstrom v Montana (442 US 510).
The trial court’s entire charge on the definition of intent, in this case where the crucial issue was not whether defendant-appellant had stabbed deceased, which was admitted, but whether his intent was to cause death, to cause serious physical injury, or to defend himself from attack from the deceased and others, allegedly armed with clubs and sticks, is as follows:
"Let me now define this word intent for you.
"A person is presumed to intend the natural and probable consequences of his acts. Criminal intent is an intent to do knowingly and willfully that which is condemned as wrong by law. A criminal intent may be inferred from all the circumstances of the case. It need not be established by direct proof to constitute the crime. There must not only be the act, but also the criminal intent and these must occur. The latter being equally essential with the former. The existence of criminal intent constitutes a question of fact for the determination by you. The burden of showing intent, the intent with which a crime has been committed, rests upon the Prosecution to establish by evidence beyond a reasonable doubt. So where the law requires that the People must establish a specific or certain intent on the part of the one charged with the commission of the crime, the law does not expect or require for obvious reasons that intent must be proved by direct proof to an absolute certainty or with mathematical precision. Intent, and I mean criminal intent, is always an essential element to the commission of a crime such as we have here. It may be proved by direct evidence or it may be proved from circumstances surrounding the transaction or act itself, or it may be proved by a combination of both.
*121"Well, what is intent? Intent is the frame of mind of the perpetrator of the act at the time it is committed. You must probe the mind. You may say to yourselves, well, how are we to determine what a person’s intentions are? Well, ladies and gentlemen, we can only determine that by one’s acts, by one’s conduct, by what was done and what was said, if anything. You should consider what was allegedly done; what means were allegedly employed; the type of instrument allegedly used, if any; the part of the body allegedly attacked; and all these circumstances, and from these surrounding circumstances, you then are to determine the intention of the perpetrator at the time.
"Under our law, every person is presumed to intend the natural and inevitable consequences of his own acts. The jury has the right to infer from the results produced, the intention to effect such result. The intent formed is a secret and silent operation of the mind, and it’s physical manifestation. The accomplishment of the thing determined upon, one’s mind is compelled from necessity to refer to the acts and physical manifestations of the intent exhibited by the results produced is the safest, if not the only proof of the fact to be ascertained. A person acts intentionally with respect to a result or to conduct described by Statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.” (Emphasis added.)
In Sandstrom (supra, p 512) the Supreme Court was presented, in a case in which intent was an element of the crime charged, with the instruction "the law presumes that a person intends the ordinary consequences of his voluntary acts”. It held that the instruction violated the Fourteenth Amendment’s requirement that the State prove every element of a criminal offense beyond a reasonable doubt, as it had the effect of relieving the State of the burden of proof on the critical question of Sandstrom’s state of mind. Given the lack of qualifying instructions as to the legal effect of this presumption, the court (p 524) could not discount the possibility that the jury may have interpreted the instruction as a "conclusive” presumption or as a "burden—shifting” presumption on the element of intent. Citing Morissette v United States (342 US 246), the court stated that where the intent of the accused is an ingredient of the crime charged, its existence is a jury issue, and "[i]t follows that the trial court may not withdraw or prejudge the issue by instruction that the law *122raises a presumption of intent from an act.” (Sandstrom v Montana, supra, p 522.)
The Sandstrom jurors were told not that they had a choice or that they might infer the conclusion that "the law presumes that a person intends the ordinary consequences of his voluntary acts,” but were told only that the law presumed it. The Supreme Court therefore did not rule upon the effect of such qualifying instructions, other than, perhaps, "whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instructions.” (Sandstrom v Montana, supra, p 514.)
Our Court of Appeals in People v Getch and People v Marr (50 NY2d 456) has indicated that the charge will be read as a whole, and if qualifying instructions were given and made clear that the burden of proof was not shifted to the defendant, that the so-called "presumption” was permissive, and it was for the jury to decide whether the conclusion should be drawn after considering all of the circumstances, then the instruction will not have been error.
However, reading this instruction on intent as a whole, it is clear to me that the words "the intent exhibited by the results produced is the safest, if not the only proof of the fact to be ascertained” (emphasis added) overbear the qualifying portions and make it more likely that a reasonable juror may have interpreted the instruction as a conclusive or a burden-shifting presumption. This matter should therefore be reversed and remanded for a new trial.
Appellant failed to object at trial to the portion of the charge at issue. As I believe this instruction to be a violation of due process which deprived appellant of a fair trial, we should consider it as a matter of discretion in the interest of justice (CPL 470.15, subd 6, par [a]; see, also, People v Thomas, 50 NY2d 467).
Kupferman, J. P., and Lupiano, J., concur with Bloom, J.; Fein and Carro, JJ., dissent in an opinion by Carro, J.
Judgment, Supreme Court, Bronx County, rendered on May 4, 1978, affirmed.