People v. Buford

• Decision Date: 18 May 1976
• Docket Number: Docket No. 24590
• Citation: 244 N.W.2d 351,69 Mich.App. 27
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip A. BUFORD, Defendant-Appellant. 69 Mich.App. 27, 244 N.W.2d 351
• Court: Court of Appeal of Michigan — District of US

Page 351

244 N.W.2d 351

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip A. BUFORD, Defendant-Appellant.

Docket No. 24590.

69 Mich.App. 27, 244 N.W.2d 351

Court of Appeals of Michigan.

May 18, 1976.

Relesed for Publication Aug. 11, 1976.

[69 MICHAPP 28] Richard P. King, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and V. J. BRENNAN and D. E. HOLBROOK, Jr., JJ.

D. E. HOLBROOK, Jr., Judge.

Defendant was convicted by a jury of felonious assault. M.C.L.A. § 750.82; M.S.A. § 28.277. He received a sentence of 2 1/2 to 4 years in prison. Defendant appeals as of right.

The defendant's only claim of error on appeal is [69 MICHAPP 29] that the trial court erred in submitting the issue of what constitutes a dangerous weapon to the jury. It is the defendant's contention that as a matter of law a boot cannot be a dangerous weapon within the meaning of the felonious assault statute. Wilson v. State, 162 Ark. 494, 258 S.W. 972, 33 A.L.R. 1182 (1924). The people concede that a boot is not legally a dangerous weapon, but they argue that a boot can be used as a dangerous weapon in certain situations. United States v. Barber, 297 F.Supp. 917, 922--923 (D.Del.1969), accord, People v. Goolsby, 284 Mich. 375, 378, 279 N.W. 867 (1938).

At trial evidence was produced indicating that the defendant struck the victim with his fists and knocked him to the floor. Then the defendant proceeded to 'stomp' on the victim's face several times with his booted feet rendering him unconscious. Further testimony revealed that the victim remained unconscious for several hours; spent four or five days in the hospital; and was off work for approximately three weeks as a hospital administrator.

The characteristic which distinguishes felonious assault from aggravated assault, M.C.L.A. § 750.81a; M.S.A. § 28.276(1), and simple assault, M.C.L.A. § 750.81; M.S.A. § 28.276, is that the assault in a felonious assault is committed with a dangerous weapon. People v. Johnson, 42 Mich.App. 544, 546, 202 N.W.2d 340 (1972). The felonious assault statute defines certain items as dangerous weapons. ¹ In addition, the Legislature, realizing that it could not reasonably foresee every type of implement that could be used as a dangerous weapon and not wishing to exclude any, included an omnibus [69 MICHAPP 30] phrase 'or other dangerous weapon' in the statute.

It is a given rule of statutory construction that criminal statutes are to be strictly construed. People v. Goulding, 275 Mich. 353, 358--359, 266 N.W. 378 (1936), People v. Lee, 66 Mich.App. 5, 10, 238 N.W.2d 397 (1975). In line with this principle the defendant argues that under the doctrine of Ejusdem generis the phrase 'or other dangerous weapon' should be construed to mean 'or other dangerous weapon designed as a weapon'.

However, the Supreme Court has rejected this construction of the phrase. People v. Goolsby, supra 275 Mich. at 379, 266 N.W. 378. In that case the Court stated that the enumerated weapons in the statute were to be considered per se dangerous, but that other objects could be considered to be dangerous weapons within the felonious assault statute if they were used in a dangerous manner. People v. Goolsby, supra at 378, 266 N.W. 378. Consequently, even if we were disposed to accept the defendant's argument on this point, we are bound by a Supreme Court holding to the contrary. Ferguson v. Gonyaw, 64 Mich.App. 685, 694, 236 N.W.2d 543 (1975). The only question left for us to review then is whether we can say that a boot by its very nature, as a matter of the law, can never be used as a dangerous weapon.

The appellate courts of this state have not confronted this precise issue before. We have held that an automobile may be a dangerous weapon, People v. Goolsby, supra 275 Mich. at 378--379, 266 N.W. 378; just as we have stated that a broomstick may be. People v. Knapp, 34 Mich.App. 325, 333--334, 191 N.W.2d 155 (1971). We have also held a flashlight may be a dangerous weapon, People v. Ragland, 14 Mich.App. 425, 426--427, 165 N.W.2d 639 (1968), Lv. den., as well as lighter fluid. People v. Morgan, 50 Mich.App. 288, 292--293, 213 N.W.2d 276 (1973), Lv. den.

[69 MICHAPP 31] These objects though bear a totally different relationship to a person than does a boot. A boot is an item of wearing apparel and, as such, is more of an extension of, or part of, a person's body than for example, a broomstick. For this reason, we must reject any reliance by analogy on the cases cited in the previous paragraph.

Since the case law of Michigan fails to provide us with any firm guidance in answering this question, we now turn to an examination of how our sister-state appellate courts have resolved this issue. In analyzing the cases from other jurisdictions, we have been careful to note the variations in the relevant statutory language. See, E.g., Alas.Stat. 11.15.220, Ark.Stat.Ann. 41:1601(a), Replacing 41--605, Cal.Penal Code § 245(a), Fla.Stat.Ann. § 784.021(1)(a), Minn.Stat.Ann. § 609.225(2), N.Y. Penal Law § 120.10(1), Okl.Stat. Ann. 21:645.

Our research has discovered only two jurisdictions that have ruled that an assault with a booted foot cannot be an assault with a dangerous weapon. Wilson v. State, (Ark.) Supra; Reed v. Commonwealth, 248 S.W.2d 911 (Ky.App.1952). On the other hand, we have been unable to discover any jurisdictions which hold that an assault with a booted foot is always an assault with a dangerous weapon. See Annotation--Kicking as Aggravated Assault, or Assault with Dangerous or Deadly Weapon. 33 A.L.R.3d 922, 924--925.

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