dissenting:
I respectfully dissent. Because of a single word in comprehensive unobjected to jury instructions, where the court used the word “presume” instead of “infer” the state court conviction of the defendant of assault with intent to commit murder is collaterally attacked and set aside by the majority. The conviction had been affirmed by the Michigan Court of Appeals and leave to appeal was denied by the Supreme Court of Michigan. Habeas relief was denied by a district judge knowledgeable of Michigan law, by long experience, who found no prejudicial error in the instructions.
It is the well established rule that even in a direct appeal from a conviction which is attacked on the ground of an alleged erroneous instruction, that all of the instructions and not one single instruction or word *433must be considered in determining the issue. Cupp v. Naughten, 414 U.S. 141, 146, 147, 94 S.Ct. 396, 400, 401, 38 L.Ed.2d 368 (1973). When this rule is correctly applied, as did the district judge, it will be seen that no prejudicial error occurred.
Previous to the instruction now objected to, the court had charged the jury on the subject of intent as follows:
So how do you determine a person’s intent? And it states right here. You may infer from what is said and what is done. Now that’s a sure-fire proposition. You take into consideration what the person says, and what the person does, and you ought to be able to determine what his intent is.
For instance, if I had a gun — you will have to excuse me — Mr. Wyse [the prosecuting attorney], you’re the object today — and I pointed it at his toe and I actually shot him in the toe. I would think that would indicate that I intended to hurt him but not to kill him.
Now let’s say I took that gun and I aimed it at his head and I pulled that trigger. Now I think the intent there would be to kill him, to get rid of him. And that’s what I mean by considering the acts and the words of a person in determining what that person intends to do.
The court gave correct instructions on the offense of assault with intent to commit murder, presumption of innocence, reasonable doubt, and on the lesser included offense of assault with intent to commit bodily injury.
After the court instructed the jury, the record discloses the following:
THE COURT: Wait a minute. Are there any objections to the court’s charge?
MR. MOLETTE: No, your honor.
THE COURT: All right.
MR. WYSE: No objections, your honor.
THE COURT: All right. Thank you.
Thus, both counsel stated to the court that they had no objection to the instructions. Had objection been made, the court would then have had an opportunity to rule on the objection and correct the instruction if it was erroneous.
Michigan applies the contemporaneous objection rule. People v. Townes, 391 Mich. 578, 218 N.W.2d 136 (1974). This is also the federal rule. Rule 30, Fed.R.Crim.P. Under both rules, however, because of the supervisory jurisdiction of the reviewing courts, manifest and serious errors may be considered even not objected to. No such error existed in the present case.
The majority opinion graphically relates the heinous crime committed by the defendant as follows:
Ms. Boulley gave the following account of the incident in her testimony at trial: Burton tricked her into admitting him in to the house where she and their daughter were staying. He then held a gun to Ms. Boulley’s head. He stated that he was not going to hurt her but that he wanted to discuss her reasons for refusing to see him. She replied that there was no reason for them to see one another. Petitioner removed the bullets from the gun to demonstrate that he was not going to hurt her. Ms. Boulley then attempted to secure herself and her child in the bathroom, but Burton pushed the door open. He stabbed her repeatedly with a pen knife, ransacked the house, and returned to the bathroom to stab Ms. Boulley several more times. In all, petitioner stabbed her approximately forty times in the neck, chest, arms and back. Finally, he threatened to kill her and their daughter if she informed the police that he was the assailant.
This evidence was not seriously controverted. After seriously injuring and maiming her by the repeated stabbings, Burton declined to even call an ambulance to take her to the hospital until she took an oath not to tell the police. When she was taken to the hospital, she was placed in intensive care suffering from the mutilation of her body.
At the trial in the state court, the defendant did not even take the witness stand to deny the stabbings. He questioned the sufficiency of the evidence, but this was for the state courts and not for us to decide in a *434habeas proceeding. The verdict of the jury was supported by overwhelming uncontroverted evidence as was held by the state courts as well as by the district judge. Even if a small part of the state judge’s instructions to the jury was erroneous, the error was harmless beyond a reasonable doubt and we should so hold. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
The district court was correct in ruling that appellant had not exhausted his state remedies with respect to his belated contention made for the first time in the federal court that he did not have effective assistance of counsel.
We should follow the principles of federalism and not collaterally attack the factual determinations of state courts in criminal proceedings where there is some evidence to support them as was held by the district court. The judgment of the district court denying the writ of habeas corpus should be affirmed.