People v. Brown

• Decision Date: 20 September 1977
• Docket Number: Docket No. 28377
• Citation: 78 Mich.App. 439,260 N.W.2d 125
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tommy Junior BROWN, Defendant-Appellant. 78 Mich.App. 439, 260 N.W.2d 125
• Court: Court of Appeal of Michigan — District of US

Page 125

260 N.W.2d 125

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tommy Junior BROWN, Defendant-Appellant.

Docket No. 28377.

78 Mich.App. 439, 260 N.W.2d 125

Court of Appeals of Michigan.

Sept. 20, 1977.

Released for Publication Dec. 8, 1977.

[78 MICHAPP 440] James R. Neuhard, State Appellate Defender, Janet M. Tooley,Domnick J. Sorise, Asst. State Appellate Defenders, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Chief Appellate Counsel, Asst. Pros. Atty., Maura D. Corrigan, Asst. Pros. Atty., for plaintiff-appellee.

[78 MICHAPP 441] Before RILEY, P. J., and BASHARA and MAHINSKE, ^* JJ.

RILEY, Presiding Judge.

The instant appeal, occasioned by defendant's jury-based conviction of carrying a weapon in a motor vehicle, M.C.L.A. § 750.227; M.S.A. § 28.424, raises inter alia the question whether a machete is a "dangerous weapon" under the cited statute.

In pertinent part, the statute provides: "A person who shall carry a dagger, dirk, stiletto or other dangerous weapon except hunting knives adapted and carried as such, * * * whether concealed or otherwise in any vehicle operated or occupied by him * * * shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than 2,500 dollars." M.C.L.A. § 750.227; M.S.A. § 28.424.

The events prompting defendant's prosecution are undisputed. On August 10, 1975, two police officers, having pulled defendant over for a minor traffic infraction, discovered a rusty, black-handled machete protruding from under the rear of the driver's seat in defendant's car. The machete, although entered as an exhibit at trial, ¹ has since been destroyed. We are unaware of its exact dimensions and uncertain whether it was blunt-ended or pointed.

The defendant, aged eighteen at the time of trial, testified that he was fourteen when he purchased a $1.98 department-store machete as an addition to his knife collection. Accordingly to his testimony, defendant used the instrument to throw at trees for sport and to chop tree limbs. On one occasion, he placed the machete in the trunk of his car to [78 MICHAPP 442] transport it to a friend's farm. It remained in the trunk for eight months until defendant used it to shorten a pair of trousers for swimming:

"A. (The Defendant ) I went to the beach one day, me and some other guys, and one of my friends didn't have any short pants, so we took the machete and cut off the long pants, to shorts, more or less; ripped them and cut them, because this machete wasn't so sharp.

"Q. (Defense Attorney ) After that was done, where did you put the machete?

"A. (The defendant ) Just underneath my front seat."

Apparently, the machete remained under the front seat until its discovery by the police.

During cross-examination, the prosecutor attempted to demonstrate defendant's awareness that a machete is a dangerous weapon. At first, defendant indicated that it never occurred to him that machetes could be used as weapons:

"Q. Did you ever hear about these things being used before as weapons?

"A. No, sir.

"Q. You never did?

"A. Never have.

"Q. What did you think the purpose of these was?

"A. Chopping down trees.

"Q. Did you ever hear about World War II?

"A. No, sir, but I have watched enough movies.

"Q. Did you ever see the Phillippine (sic ) movies?

"A. Yes, sir.

"Q. Did you ever see those movies where perhaps "MR. FOWLER (DEFENSE ATTORNEY ): Your Honor, I'm going to object. I don't know what is material about the movies he has seen.

"MR. PHILLIPPART (PROSECUTING ATTORNEY ): It's cross examination, Your Honor. I think perhaps we [78 MICHAPP 443] can get to the point where he might have known these could be used as a weapon.

"MR. FOWLER: I'm not sure what movies he's talking about. I don't know if he's going to bring movie projectors in here to show the movies. I think we're going far afield.

"THE COURT: Within limits, of course, Mr. Phillippart.

"Q. (By Mr. Phillippart ) Did you ever see a machete used in the movies as a weapon?

"A. I never did realize it.

"Q. Never did realize it?

"A. No, I never did really look at the weapons that way.

"Q. Never did?

"A. No. I don't like to see bloody pictures and things like that.

"Q. You never saw Philippinos lob off Japanese heads with a machete?

"A. No, not that kind.

"Q. What kind?

"A. Bigger ones.

"Q. Bigger ones?

"A. Yes.

"Q. In your opinion, do you think this might lob off a head?

"MR. FOWLER: That would call for a conclusion by the witness, Your Honor.

"THE COURT: All right.

"Q. (By Mr. Phillippart) In your opinion, do you think this could be used as a weapon?

"A. It could be used as a weapon.

"Q. Is that why you kept it in the trunk of your car for these 8 months?

"A. At the beginning of the 8th month, I put it in my car to go over to a friend's house. I threw it back in the trunk and I didn't realize it was there until one day I remembered.

"Q. But you said you normally carried it in the trunk of your car.

"MR. FOWLER: Objection, that wasn't he said he [78 MICHAPP 444] had it in the trunk for 8 months, he didn't say he normally had it in the trunk.

"THE COURT: Objection sustained."

On appeal, defendant asserts that under People v. Smith, 393 Mich. 432, 225 N.W.2d 165 (1975), only stabbing weapons are proscribed by M.C.L.A. § 750.227; M.S.A. § 28.424; that "a machete does not have a point"; ² that "(t)he likely result of trying to stab someone with a machete would be the physical alteration of the wielder's hand"; and that, given a machete's ineffectiveness as a stabbing weapon, this Court should quash the information and discharge defendant. He also raises issues regarding the prosecutor's conduct, the charge to the jury and double jeopardy.

In Smith, supra, a prosecution for possession of an M-1 rifle in a motor vehicle, the Supreme Court stated:

"No one suggests that an M-1 rifle is not a dangerous weapon. The question is whether this statute (M.C.L.A. § 750.227; M.S.A. § 28.424) proscribes the carrying of all dangerous weapons or only those of the types specified.

"In construing statutes in an effort to ascertain and give effect to the legislative interest (sic ), courts are guided by a rule of construction known as 'ejusdem generis '.

"This is a rule whereby in a statute in which general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and construed as restricted by the particular designation and as including only things of the same kind, class, character or nature as those specifically enumerated. See 73 Am.Jur.2d, Statutes, § 214, pp. 407-408.

"Thus here the phrase 'or other dangerous weapon [78 MICHAPP 445] except hunting knives adapted and carried as such' following those specified types of stabbing weapons, under the rule would be limited to stabbing weapons. As to that part of the statute we see no intent to include firearms of any sort in the phrase 'other dangerous weapon'." Id. at 436, 225 N.W.2d at 166.

This extract represents a departure from the Court's previous interpretation of M.C.L.A. § 750.227; M.S.A. § 28.424. In People v. Vaines, 310 Mich. 500, 17 N.W.2d 729 (1945), a case not cited by the Smith Court, Chief Justice Starr, writing for a unanimous Court, opined:

"It is manifest that there are many articles or instruments, other than daggers, dirks and stilettos, which might properly come within the scope of the term 'dangerous weapon' if they were used or carried for use as weapons. For example, pocket knives, razors, hammers, hatchets, wrenches, cutting tools, and other articles which are manufactured and generally used for peaceful and proper purposes, would fall within the category of dangerous weapons if used for or carried for the purpose of assault or defense. Whether or not such articles are dangerous weapons, within the meaning of that term as used in section 227 (M.C.L.A. § 750.227; M.S.A. § 28.424), would depend upon the use which the carrier made of them.

"Daggers, dirks, stilettos, metallic knuckles, slung shots, pistols, and similar articles, designed for the purpose of bodily assault or defense, are generally recognized as dangerous weapons per se. Other articles and instruments become dangerous weapons only when they are used or carried for use as weapons. Therefore, in a prosecution under section 227 it becomes a question of fact for court or jury determination as to whether or not such articles or instruments are used or carried for the purpose of use as weapons of assault or defense. People v. Gogak, supra. (205 Mich. 260, 171 N.W. 428 (1919)).

[78 MICHAPP 446] "We are convinced that the legislature intended the words 'other dangerous weapon,' as used in section 227, to mean any concealed article or instrument which the carrier used or carried for the purpose of using as a weapon for bodily assault or defense. The legislature certainly did not intend to include as a dangerous weapon the ordinary type of jackknife commonly carried by many people, unless there was evidence establishing that it was used, or was carried for the purpose of use, as a weapon." Id. at 504-506, 17 N.W.2d at 731 (Emphasis supplied.)

While established precedent should not be blithely or impliedly cast aside, we read Smith as nothing less than a sub silentio rejection of the principles espoused in Vaines. That is not to say, however, that the statutory interpretation undertaken in Smith is beyond reproach. See People v. Diericks, 60 Mich.App. 603, 604-605, 231 N.W.2d 422 (1975). A tenable construction, we believe, would have been to read the exclusionary language of the statute (" * * * except hunting knives adapted and carried as such") as evincing a legislative intent to punish the possession in a vehicle of any dangerous weapon other than knives adapted and carried for hunting. ³ This interpretation meshes well with the expansive, but unrecognized,...