(dissenting). I must respectfully dissent.
*56The majority reverse on the ground that the instruction of the trial court defining "intent to commit murder” was clearly erroneous. In the trial court no objection was made to the judge’s instruction to the jury. Where no objection is made, we only review and reverse where there is a manifest injustice. People v Dorrikas, 354 Mich 303, 316; 92 NW2d 305 (1958).
There was no manifest injustice here. The proof of defendant’s guilt was overwhelming. The evidence indicates that defendant, an auto-wash employee, when questioned by his employer about walking off the job, pulled a loaded gun from his pocket and shot his unarmed victim three or four times; once in the face, one in the back of the head and another in his victim’s back.
The trial court instructed as follows:
"We shall now discuss the State law that is involved. It says that any person who shall assault another with intent to commit the crime of murder shall be guilty.
"To constitute this offense, it must be shown that the defendant made an assault upon the complaining witness. That would mean that the Defendant Williams made the assault upon the complaining witness Gold-farb, with an actual intent to kill, under such circumstances as would have made the killing murder had death resulted therefrom.
"As [sic] assault is defined as an attempt or offer, with force and violence, to do bodily hurt to another, coupled with a present ability to carry the intention into effect.
"Murder is defined as where a person of sound memory and discretion wilfully and unlawfully kills any human being, against the peace of this State, with malice aforethought, express or implied.
"It is the intent with which the injury is inflicted or attempted that constitutes a material element of Assault With Intent to Commit Murder. And when such intent is shown, that which would have been only an *57assault, unaccompanied with the felonious intent, will be Assault With Intent to Commit Murder when thus accompanied.
"And when I talk about malice aforethought, there is no need, under law, that this malice or evil intent be entertained for a long time. It can be quickly formed. It can be momentarily performed and consummated, as long as there was malice aforethought prior to the doing of the act. Now, in this charge, there is another offense which is included therein. It is described as an Assault With Intent. to Do Great Bodily Harm Less Than the Crime of Murder. The statute says: any person who shall assault another with the intent to do great bodily harm less than the crime of murder shall be guilty.
"The offense under that statute involves an attempt or offer, with force and violence, to do bodily hurt to another, coupled with an intent to do great bodily harm less than the crime of murder.
"I have already described murder to you. Bear in mind, again, it is the intent with which the injury is inflicted or attempted that constitutes a material element of Assault With Intent to Do Great Bodily Harm Less Than the Crime of Murder. And when such intent is shown, that which only would be an assault, unaccompanied with the felonious intent, will be Assault With Intent to Do Great Bodily Harm Less Than the Crime of Murder, when thus accompanied.
"Therefore, you have before you two offenses. The first I have described as Assault With Intent to Murder; the second, Assault With Intent to Do Great Bodily Harm Less Than Murder.
"The testimony in this cause, as you well know, indicates that there was a dangerous weapon used. A deadly weapon or a dangerous weapon is defined as an instrument which reasonably and likely could produce death or serious bodily injury from the manner in which it is used.
"The law further says, with respect to this use of weapons, this: When a man assaults another with, or uses upon another a deadly weapon, in such a manner that the natural, ordinary, probable use of such deadly *58weapon in such manner would be to take a life, the law presumes that such a person so assaulting intended to take life. That is the inference, the presumption, that the law provides, with respect to the use of a deadly weapon.”
Under People v Martin,1 cited by the majority, the words "presumption” and "presumes” should not have been used in this instruction in the way they were used. But, in the within case, the jury was not obfuscated by an instruction that was inconsistent and clearly erroneous. People v Martin, supra, 559. In fact, viewing this instruction in its entirety, and in the context of the overwhelming evidence, it seems apparent the jury was adequately instructed and that defendant had a fair trial. Manifest injustice means something more than occurred here.
I would vote to affirm the guilty verdict.
392 Mich 553; 221 NW2d 336 (1974).