On Remand
D. C. Riley, J.Following his second trial and conviction of second-degree murder (the first trial having failed for want of jury consensus), defendant Paul Mathis appealed unsuccessfully to this Court. People v Paul Mathis, 55 Mich App 694; 223 NW2d 310 (1974). Acting upon defendant’s delayed application, the Supreme Court remanded the case to the Court of Appeals for consideration of the issues raised in defendant’s application for leave. 395 Mich 788 (1975).
Defendant alleges a variety of instructional and *324other errors which, he argues, deprived him of a fair trial. With four of his contentions, we agree.
Defendant’s first claim of error raises an issue that has been resolved in his favor by People v Gilbert, 55 Mich App 168; 222 NW2d 305 (1974), and People v Skowronski, 61 Mich App 71; 232 NW2d 306 (1975). As in Gilbert and Skowronski, the judge below informed the jury that he had determined in a separate hearing that defendant had voluntarily uttered a statement to a policeman concerning the alleged crime. The jury’s task, the judge then declared, was twofold: to determine (1) whether the statement was made; and (2) whether, if made, it was true. Although the defendant did not object at the time, he did object when the matter was revived by the prosecutor in rebuttal argument. While a more prompt objection would have been preferable, we consider defendant’s effort sufficient to have preserved the error on appeal.
We therefore hold with Gilbert and Skowronski, supra, that the trial court erred reversibly in apprising the jury of his earlier finding at the Walker1 hearing. It is senseless to ask the jury whether a statement has been made after informing them that the statement was voluntary. The jury is thus left to wonder whether it is being asked, on the one hand, to side with the judge’s conclusion and proceed to determine the truth of the statement, or on the other, to overrule the judge and conclude on their own that the statement (no matter how voluntary) was never made. We cannot and do not expect a jury, so perplexed, to render a fair and impartial verdict. Consequently, we reverse.1 2
*325Defendant next asserts as error the lower court’s sua spon te instruction on voluntary manslaughter which failed to incorporate a charge on involuntary manslaughter. This issue is a mirror image of a question addressed and resolved in People v Ora Jones, 395 Mich 379, 390-391; 236 NW2d 461 (1975). We trust that it will not recur on retrial.
Defendant argues that reversible error arose from the following instruction:
"The element of malice is present in murder and not in manslaughter. Murder may be and often is committed without any specific intent or actual intention of killing.
"It is not necessary in all cases that one charged with murder must have intended to take the life of the person he slays by his wrongful act.
"If the intent with which he acted shall be equivolent [sic] in legal character to a crime purposely aimed against human life, you find the accused uses upon another a deadly weapon such as a pistol in such a manner that the natural and ordinary probable use of such a deadly weapon in such a manner would be to take the life, the law presumes that such a person so assaulting intended to take the life.
"You may find malice from the use of such a deadly weapon in such a manner in which it was used that the natural consequence would be to result in the death of the deceased.” (Emphasis added).
While the instant instruction is perhaps slightly less egregious than the charge condemned in People v Martin, 392 Mich 553; 221 NW2d 336 (1974), it is nonetheless reversibly erroneous. People v Conway, 70 Mich App 629; 247 NW2d 317 (1976). *326Compare People v Rosemary Gibson, 71 Mich App 543; 248 NW2d 613 (1976). Hence, instructional language speaking in terms of presumed malice or intent should be avoided on retrial, lest the jury’s province as factfinder be invaded and a possible •conviction undermined.
The trial court should also upon remand take pains to. see that the jury is properly instructed on self defense. In this regard, we note that one view of the facts would support defendant’s present argument that he had been residing with the decedent in her home at the time of her death. Thus, this evidence, if believed by the jury, would absolve defendant of an obligation to retreat before resorting to deadly force in self defense. See People v Smith, 54 Mich App 652; 221 NW2d 464 (1974), People v McDaniels, 70 Mich App 469; 245 NW2d 793 (1976), and People v McGrandy, 9 Mich App 187; 156 NW2d 48 (1967). Moreover, with regard to the requirement that defendant be non-aggressive, i.e., without fault in bringing on the deadly affray, People v Bright, 50 Mich App 401, 406; 213 NW2d 279 (1973), the lower court should charge (assuming sufficient evidence is adduced on the point) that defendant "may only be held legally accountable as an aggressor for responsive conduct by another that is reasonably attributable to appellant’s [defendant’s] own conduct”. People v Townes, 391 Mich 578, 592; 218 NW2d 136 (1974). See also LaFave & Scott, Criminal Law, p 395, quoted in People v Joeseype Johnson, 75 Mich App 337; 254 NW2d 667 (1977).
On all other claims of error, we agree with Judge Holbrook’s analysis.
Reversed and remanded.
Allen, P. J., concurred.People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
This is not a case where a newly-carved rule, applied retroactively, *325works vexation upon a trial court which relied on established precedent for support. Rather, this is a case where fundamental fairness and elementary logic dictate that a jury not be asked to decide a question which, by necessary implication, the judge has already decided for them.