People v. Jacobson ( 1976 )

N. J. Kaufman, J.

(dissenting). I respectfully dissent.

I cannot escape the conclusion that the charge in the instant case comes within the dimensions of People v Martin, 392 Mich 553; 221 NW2d 336 (1974), and is therefore reversible error.

The majority are engaged in the delicate task of circumventing the clear applicability of Martin by arguing that the instant charge taken as a whole left to the jury’s determination the existence of that important element "malice aforethought”. With this view I cannot agree.

A detailed attack of their reasoning is unnecessary. We adhere to a system in which a defendant is allowed to have a jury determine his guilt or innocence. Despite assertions by the majority to the contrary, the logical result of the instant charge is to foist upon the jury the court’s resolution of the material and crucial element of malice and render nugatory their discretion on this matter. As Justice Fitzgerald stated in Martin, p 561: "Michigan has long ago considered malice a permissible inference to be drawn by the jury rather than a presumption of law.” Consequently, I find it inescapable that the instant charge took the crucial determination of malice outside the domain of the jury in clear violation of Martin.

As a result of my disposition on the Martin error, I need intimate no view on the remaining contentions of error.

I would reverse and remand for a new trial.