People v. Martin

Defendant appeals as of right from his jury conviction of second-degree murder, MCL 750.317; MSA 28.549, and felony-firearm, MCL 750.227b; MSA 28.424(2). We find that defendant’s conviction must be reversed because of instructional error.

The homicide in the present case involved a struggle between the victim and defendant during which the victim was shot with a gun. There was conflicting testimony as to whether defendant or the victim pulled out the gun, and as to whether all the shots were fired during the struggle or whether defendant fired a final shot at the victim after the victim had…