People v. Conway , 70 Mich. App. 629 ( 1976 )

R. B. Burns, P. J.

Defendants were convicted by a jury of first-degree murder, contrary to MCLA 750.316; MSA 28.548. They appeal and we reverse.

The trial judge instructed the jury in part:

"When a man assaults another with a deadly weapon, and a gun is a deadly weapon, in such a manner that the natural and ordinary probable use of such deadly weapon, in such a manner would take life, the law presumes that such a person so assaulting, intended to take life.”(Emphasis added.)

People v Martin, 392 Mich 553, 561; 221 NW2d 336, 340 (1974), followed in People v Lyles, 67 Mich App 620; 242 NW2d 452 (1976), clearly indicates such an instruction is error:

"The law does not imply malice where a deadly weapon is used. Michigan has long ago considered malice a permissible inference to be drawn by the jury rather than a presumption of law.”

Reversed and remanded for a new trial.

S. S. Hughes, J., concurred.