
    PEOPLE v. NEUMANN
    1. Criminal Law — Defenses—Insanity—Burden of Proof.
    The people must prove beyond a reasonable doubt that the defendant was sane when the defendant has introduced any evidence of insanity at the time of the offense.
    2. Criminal Law — Instructions to Jury — Proper and Improper Instructions.
    Reversible error occurs when some of the court’s instructions to the jury are proper and some are improper because the jury is presumed to have followed the erroneous charges unless the court repudiates them.
    3. Trial — Instructions to Jury — Preserving Question — Timely Objection — Manifest Injustice.
    Failure to timely object to the court’s instructions to the jury usually does not preserve the issue for appeal; however, where the error works a manifest injustice the lack of timely objection will not bar review.
    4. Trial — Instructions to Jury — Erroneous Instructions — Manifest Injustice.
    An error in the court’s instructions to the jury does not usually occasion manifest injustice unless the incorrect instruction pertains to a basic and controlling issue in the case.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 52.
    [2] 5 Am Jur 2d, Appeal and Error § 890.
    [3] 5 Am Jur 2d, Appeal and Error § 891.
    [4] 5 Am Jur 2d, Appeal and Error § 815.
    Appeal from Genesee, Elza H. Papp, J.
    Submitted Division 2 June 10, 1971, at Lansing.
    (Docket No. 9580.)
    Decided July 26, 1971.
    
      Frank Neumann was convicted of manslaughter. Defendant appeals.
    Reversed and remanded.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief Assistant Prosecuting Attorney, and James Dillard, Assistant Prosecuting Attorney, for the people.
    
      William J. Hayes, for defendant on appeal.
    Before: Lesinski, C. J., and Bronson and Dan-hoe, JJ.
   Lesinski, C. J.

Defendant was originally charged with the second-degree murder of his wife and was convicted of manslaughter by a jury in the subsequent trial. MCLA § 750.317 (Stat Ann 1954 Rev §28.549); MCLA §750.321 (Stat Ann 1954 Rev § 28.553). Defendant appeals to this Court by leave granted.

Defendant interposed an insanity defense at trial and presently assigns as error two instructions. The trial court instructed the jury four times as to the burden of proof when an insanity defense is presented. Two of the charges are essentially correct. However, the trial court charged as follows:

“Since sanity is the normal state of humanity, it is presumed that the accused was sane until that presumption is overcome by evidence. The proof of insanity at the time of committing the act is to be as clear and satisfactory, in order to acquit the defendant on grounds of insanity, as proof of committing the act ought to be in order to find a sane man guilty. The proof, in other words, is equal. Where it is admitted or clearly proved that the defendant committed the act but he has insisted that he was insane, and the evidence leaves the question of insanity in doubt, you are to find against the defendant, Mr. Neumann; that is, that he was sane.”

At another instance in the charge, the trial court instructed the jury with almost identical language:

“Since sanity is the normal state of humanity, it is presumed that the accused or the defendant was sane until that presumption is overcome by evidence. The proof of insanity at the time of committing the act is to be clear and satisfying in order to acquit the defendant on grounds of insanity, just as proof of committing the act ought to be in order to find a sane man guilty. Where it is admitted or clearly proved that the defendant committed the act, but it is insisted that he was insane, and the evidence leaves the question of insanity in doubt, you are to find against the defendant, that is, that he was sane.”

It is our opinion that the quoted charges erroneously conveyed to the jury the impression that defendant must establish his defense beyond a reasonable doubt. Such is not the law. When a defendant introduces any evidence of insanity at the time of the offense, the people must prove beyond a reasonable doubt that defendant was sane when he committed a crime, just as they must prove every other element of the crime. People v. Garbutt (1868), 17 Mich 9; People v. Eggleston (1915), 186 Mich 510; People v. Krugman (1966), 377 Mich 559; People v. Geiger (1968), 10 Mich App 339. See, also, People v. Woody (1968), 380 Mich 332.

The prosecution on appeal concedes the charges to be erroneous, but maintains that the error is not reversible since the instruction as a whole contained instructions which correctly state the law and thus the error was cured. However, when several instructions are imparted to the jury, some proper and some incorrect, the jury is presumed to have followed the erroneous, absent repudiation of the questionable charges by the court. People v. Eggleston, supra; People v. Burkard (1967), 374 Mich 430.

Furthermore, the people point out that defendant failed to register timely objection to the charges and, as such, the error may not be said to have been preserved. GCR 1963, 516.2; People v. Jefferson (1969), 18 Mich App 9. An exception to this general principle has been carved out, however, when injection of the error works a “manifest injustice”. Hunt v. Deming (1965), 375 Mich 581; People v. Leonard E. Smith (1968), 15 Mich App 173; People v. Bell (1969), 19 Mich App 257. Usually, instructional error will not occasion such “manifest injustice” unless the incorrect instruction pertains to a basic and controlling issue in the case. In the case at bar, the erroneous charges dealt with the burden of proof with respect to insanity. Any misstatement of the law on this point would be directed to the very essence of the case.

Reversed and remanded.

All concurred.  