¶1(dissenting). I must respectfully dissent from my Brother Maher’s opinion.
¶2The majority opinion states that "where the *156overall effect of the instruction places a burden upon defendant to produce evidence in order to overcome a presumption of guilt, such an instruction is inconsistent with the presumption of innocence. All the elements of the crime charged, in this case, were not submitted to the jury in a correct and consistent manner.” After careful reading and rereading of the trial judge’s instructions, I find these instructions neither misleading nor incorrect. Immediately following the portion of the instructions quoted by the majority, the trial judge went on to instruct as follows:
¶3"Now, as evidence of intent in this case the jury might properly consider whether or not a deadly weapon was used in the assault, and a pistol of the kind that was introduced into evidence in this case is a deadly weapon — if you find that that weapon was used in committing an assault, the jury may consider that properly in determining whether there was an intent to kill and murder, and, likewise, the jury may properly consider the location of any wounds that were caused as a result of the shooting incident that occurred.
¶4"As I have said, the people must prove each of those elements beyond a reasonable doubt.”
¶5The majority candidly admits that the fatally defective language of the judge’s charge in People v Jordan., 51 Mich App 710, 716; 216 NW2d 71 (1974), is not present in the case at bar. With this much, I agree. But the majority reads the instructions as being possibly misleading to the jury in that the jury could have misunderstood the judge’s instructions to mean that there is a presumption of guilt which arises from the acts of the defendant, and that the burden of going forward with the evidence is upon the defendant to rebut that presumption. This is a strained reading of the instructions at best. I think the trial judge was quite *157clear in communicating to the jury the fact that intent as an element of the oifense charged, being a state of mind, cannot be proved by direct evidence, but must be inferred from the totality of the facts and circumstances. The trial judge then went on to point out those facts and circumstances which they could consider in drawing the proper inference. The trial judge repeatedly told the jury that the people have the burden of proving each element of the crime beyond a reasonable doubt.
¶6Further, it is well-settled law in Michigan that absent a showing of manifest injustice, this Court will not consider claims of error based on alleged erroneous instructions where there was no objection at trial. See GCR 1963, 516.2, People v Spaulding, 42 Mich App 492; 202 NW2d 450 (1972), lv den 388 Mich 809 (1972), People v Peace, 48 Mich App 79; 210 NW2d 116 (1973). In the case at bar, defendant did not object to the court’s instructions and, in fact, expressed his satisfaction therewith. Therefore, this Court must determine whether the trial court’s instructions resulted in manifest injustice. In determining whether the instructions were prejudicial to the defendant, the instructions are to be examined as a whole. See People v Harper, 43 Mich App 500; 204 NW2d 263 (1972), lv den, 389 Mich 759 (1973). The instructions read as a whole did not shift to defendant the burden of proof on the element of intent and I can find no manifest injustice.
¶7The majority relies on People v Townes, 391 Mich 578; 218 NW2d 136 (1974). I find Townesinapposite and thus must respectfully disagree with my brothers. In Townesthe defendant entered decedent’s store and began an altercation with an employee. The decedent intervened with a gun and ordered defendant out of the store. The *158defendant then left but returned immediately and shot decedent. The Supreme Court found the instructions in the Townescase to be reversibly erroneous in that it deprived the defendant of his defense of self-defense if the jury found that the defendant had provoked a disturbance in the store. Thus, the Court said that a person may be held accountable as an aggressor for responsive conduct by another only if the responsive conduct is reasonably attributable to that person’s own conduct. In the case at bar there was no third-party intervention, and I do not believe that the instructions, read as a whole, can reasonably be understood to imply that the defendant would not have a right of self-defense, if assaulted with a deadly weapon, should the jury find that he had provoked a disturbance in the gas station.
¶8The trial judge instructed the jury on the theory of self-defense as follows:
¶9"Now, you will remember that when I defined an assault for you I said an assault is an offer or attempt with unlawful force, and if, what would otherwise be an assault, is done under necessary self defense, then the act is not unlawful because the law recognizes the right of self defense, and if done in self defense, the crime would not be committed.
¶10"If a defendant wounds the complainant in self defénse, honestly believing his own life to be in danger, or that he was in imminent danger of receiving serious bodily injury at the hands of the other party, and used no more force than was necessary to protect himself, then it would be self defense and, under these circumstances, the defendant would not be guilty of the crime charged.
¶11"One who is threatened with immediate attack by an assailant is authorized to act, and his or her actions are to be judged in the light of the circumstances as they appeared to him or her … at that time, and if he believes that a violent act is imminent then it is imma*159terial whether or not a forceable attack upon him was intended by the other party.
¶12"Now, the law does not countenance the shooting of another person except from the utmost necessity, and a defendant cannot claim self defense unless there was no other method of escaping death or serious injury. An assault with a deadly weapon could not be justified merely because another party had made annoying remarks or because there had been some civil transaction, such as going to the store and buying a pound of butter and a dispute arising out of it, or merely out of anger— these circumstances, in themselves, do not justify the exercise of self defense to the degree of using a deadly weapon, such as a pistol. The act of self defense miist be actually necessary or appear to be actually necessary to the defendant in order to be an occasion for self defense.
¶13"And, self defense is not justified under all circumstances. The defendant cannot be the aggressor in the situation; if so, he cannot claim self defense and, for that reason, it is important for the jury to consider all the circumstances and facts surrounding the beginning of this incident in order to determine who was the aggressor in the situation because, if the defendant was the aggressor under the circumstances, he cannot claim self defense in the case.
¶14"Now, if there was any way open and the defendant, or the party claiming self defense, could have left the scene without great danger to himself, he must avail himself of that opportunity before resorting to the use of a deadly weapon, or he cannot claim self defense; however, if the parties are so closely engaged that it is obvious that time to escape would not be availing to the parties, then he is not required to retreat under those circumstances.
¶15"Now, I should further instruct you that in considering whether or not this was an occasion for self defense, the burden is on the people to prove that it was not an occasion for self defense. In other words, if you have any doubt on the subject — a reasonable doubt — as to whether or not the defendant was properly acting in self defense then you should give him the benefit of that doubt and find him not guilty.”
¶16*160Unlike Townes, the jury was not instructed that if they should find that the defendant was the aggressor in bringing on the difficulty at the gas station that the defense of self-defense would be unavailable to him. Clearly, the trial judge gave the question of self-defense to the jury as a question of fact for them to decide. I do not believe that the defendant was prejudiced, because the instructions were adequate and the testimony of complainant was undisputed that defendant drew his gun first. Clearly, the trial judge intended to instruct the jury that in making their determination of who the aggressor was, they should consider all the facts and circumstances of the case, including those facts at the beginning of the incident. This was not error. In any event, the jury considered defendant’s contention of self-defense and found him guilty. The defendant did not object to the instructions as given and I find no manifest injustice. I would not disturb the jury’s finding.
¶17I would affirm.