(dissenting). The trial court instructed the jury in this case as follows:
"You must therefore, members of the jury, in deciding this case, determine whether or not from the testimony you believe and believe beyond a reasonable doubt that the defendant in attempting to prevent the taking of his property found himself in some personal physical danger. I charge you as a matter of Michigan law that the defendant would have a right to use deadly force in his effort to prevent the taking of his property so long as he at the same time were defending himself from personal physical danger.
* * *
"The defendant would have no right to use deadly *313force without your believing beyond a reasonable doubt that he was doing so in order to prevent physical danger to himself.
"Now, it is the defendant’s reasonable belief which you must assess in this particular case. If you find from the evidence that the defendant at the time that he shot his rifle reasonably believed that he was in some personal physical danger as a result of the exercise of his rights to protect his property — if that’s what you find he was doing — you may give the defendant the benefit of that doubt and so you are to determine that the taking of the life in this particular case was not unlawful.”
The above charge placed on defendant the burden of establishing his defense of self-defense. This was erroneous since "[t]he burden of proof to exclude the possibility that the killing was done in self-defense rests on the prosecution”. People v Jackson, 390 Mich 621, 626; 212 NW2d 918 (1973), quoting People v Stallworth, 364 Mich 528, 535; 111 NW2d 742 (1961).
Generally, failure to object to the charge given waives any objection on appeal. GCR 1963, 516.2. However, as the Supreme Court pointed out in People v Liggett, 378 Mich 706, 714; 148 NW2d 784(1967):
"It is settled law of this state that the trial judge should instruct the jury in criminal cases as to general features of the case, define the offense and indicate that which is essential to prove to establish the offense, even in the absence of request. A case may be reversed because the charge omits a legally essential ingredient. People v Prinz, 148 Mich 307 [111 NW 739 (1907)], People v Kanar, 314 Mich 242, 245 [22 NW2d 359 (1946)], People v Hearn, 354 Mich 468 [93 NW2d 302 (1958)]. Similarly, without a request, a case may be reversed because of an erroneous or misleading charge as opposed to one which merely omits a pertinent *314though not legally necessary point. People v MacPherson, 323 Mich 438, 448 et seq. [35 NW2d 376 (1949)], People v Guillett, 342 Mich 1, 7 [69 NW2d 140 (1955)], People v Oberstaedt, 372 Mich 521, 526 [127 NW2d 354 (1964)]. Defendant has a right to have a properly instructed jury pass upon the evidence. People v Visel, 275 Mich 77, 81 [265 NW 781 (1936)].”
Here, considering the charge in its entirety, it appears to be misleading in that the instruction which placed the burden of proving self-defense upon defendant was not cured by further specific statements by the trial court. The fact that the trial court properly instructed the jury that the prosecution bears the burden of proving defendant’s guilt beyond a reasonable doubt is not determinative. Where instructions conflict, one correct and the other erroneous, it may be presumed that the jury followed the erroneous charge. People v Eggleston, 186 Mich 510, 514-515; 152 NW 944 (1915).
I would reverse and remand for a new trial.