People v. Bailey, Docket No. 3172

• Decision Date: 02 April 1968
• Docket Number: Docket No. 3172,No. 2,2
• Citation: 10 Mich.App. 636,160 N.W.2d 380
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David BAILEY and Harry Bailey, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 380

160 N.W.2d 380

10 Mich.App. 636

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David BAILEY and Harry Bailey, Defendants-Appellants.

Docket No. 3172.

Court of Appeals of Michigan, Division No. 2.

April 2, 1968.

Released for Publication Aug. 16, 1968.

Parvin Lee, Jr., Campbell & Lee, Birmingham, for appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, S. Jerome Bronson, Pros. Atty., Oakland County, Pontiac, for appellee.

Before McGREGOR, P.J., and LEVIN and QUINN, JJ.

McGREGOR, Presiding Judge.

On July 8, 1966, the police of Keego Harbor investigated a report that a gun had been discharged in a residential area of the city. An investigation of the house where the gunshot was believed to have taken place did not reveal a gun, but did reveal the defendants. After asking some questions, the police left. Some time thereafter, a neighbor called the police to report that the defendants had driven away in an auto with something that looked like a gun. The defendants' auto was stopped and found to contain a sawed-off shotgun, about 2 feet long, beside the front seat. Defendants were convicted of carrying a concealed weapon, in violation of the statutory provisions against carrying a concealed weapon without a license. C.L.1948, § 750.227 (Stat.Ann.1962, Rev. § 28.424) and were both sentenced to a prison term of 4 to 5 years.

Much of the basis of appeal in this case stems from the understandable confusion over the status of a sawed-off shotgun. The prosecutor, in the information and at the trial, tried to touch all bases by asserting that possession of the gun was illegal under the 'other dangerous weapons' provision of the concealed weapon prohibiting statute, supra, or alternatively (or perhaps additionally), that defendants were guilty of carrying a pistol without a license. Defendants argue here, as they did below, that the sawed-off shotgun in question was a pistol, as defined by the legislature in C.L.1948, § 750.222, as amended by P.A.1964, No. 215 (Stat.Ann.1968 Cum.Supp. § 28.419):

"Pistol' means any firearm, loaded or unloaded, 30 inches or less in length.'

Defendants advanced this theory as a corollary to the defense that they were exempted from the licensing provision by the statutory language which exempts moving an unloaded pistol from one abode to another. P.A.1931, No. 327, § 231a, as added by P.A.1964, No. 215 (M.C.L.A. § 750.231a, Stat.Ann.1968 Cum.Supp. § 28.428(1)). In line with this defense, defendants introduced evidence with the intent of showing that they were in the process of moving to a new abode.

Defendants moved for a directed verdict in the trial court on the basis of the statutory definition of a pistol and the evidence of moving from one abode to another. Motion was denied on the basis that the gun was in fact a shotgun, and merely because it was less than 30 inches in length, the character of the gun had not changed.

This question was submitted to the jury; the judge's charge to the jury contained the language patterned after both the 'other dangerous weapon' prohibitory clause and the 'unlicensed pistol' prohibitory clause. The exception to carrying a pistol from abode to abode was also charged. The jury returned a verdict of guilty as charged.

While much of the defendants' theory of defense is novel and interesting, it suffers complete collapse when it is compared to the wording of the exemption statute. P.A.1931, No. 327, § 231a, as added by P.A.1964, No. 215 (M.C.L.A. § 750.231a, Stat.Ann.1968 Cum...