c32:No. 79-3093

COLEMAN, Circuit Judge,
concurring:
The majority opinion correctly states in the last paragraph that “Gary Tyler [age 16] fired a .45 caliber pistol into a crowd of people;” that “A rational fact finder could conclude that firing a pistol into a crowd of people evidences an intent to kill or do great bodily harm to more than one of those assembled.”
It is hardly to be doubted that anybody of average intelligence could disagree with such an obvious fact. That being so, and as a matter of the common sense upon which jurors generally rely, I would not say that the giving of the challenged instruction rendered Tyler’s trial fundamentally unfair. Tyler was in a place of safety, in a school bus with other children. He was not under attack and could not have been in any fear of death or great bodily harm. He was old enough to know what a .45 bullet would do when fired into a crowd at close range. Yet, he wantonly fired. I believe that without the challenged instruction the verdict on intent would have been the same. The sad facts were more than enough, without relying on legalisms to establish a belief from the evidence beyond a reasonable doubt.
I agree with all else in the opinion and with the result.
This is a collateral attack and Tyler has already escaped the death penalty to which he was originally sentenced. Leaving him to serve a prison sentence for taking a young life, as he did, is not a miscarriage of justice.

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