People v. Carpenter

• Citation: 69 Mich.App. 81,244 N.W.2d 338
• Decision Date: 03 May 1976
• Docket Number: Docket No. 23305
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald CARPENTER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 338

244 N.W.2d 338

69 Mich.App. 81

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Reginald CARPENTER, Defendant-Appellant.

Docket No. 23305.

Court of Appeals of Michigan.

May 3, 1976.

Released for Publication Aug. 11, 1976.

William A. Haley, Jr., Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief, Timothy A. Baughman, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and R. B. BURNS and QUINN, JJ.

PER CURIAM.

Defendant was convicted by a jury of carrying an unlicensed pistol in a motor vehicle, M.C.L.A. § 750.227; M.S.A. § 28.424, and appeals.

Defendant first contends that the police officers did not have probable cause to search the interior of his auto where the pistol was found. Testimony reveraled that the officers were responding to a radio dispatch regarding a fight. As they approached the scene, they observed a man with a towel around his eye standing next to defendant's auto. When officer Gocher neared the car, the man threw the towel inside the car. Officer Gocher ordered the occupants out of the car.

The officer observed a rifle case in plain view, which contained a .44 magnum caliber rifle. He searched the remainder of the car and found a .25 caliber pistol with 75 rounds of ammunition.

The defendant relies upon People v. Smith, 393 Mich. 432, 225 N.W.2d 165 (1975), for the proposition that a long rifle is not a dangerous weapon, and hence, did not give the officers probable cause to search the remainder of the auto. In determining whether probable cause existed so as to render a search reasonable, only the facts, circumstances, and information known to the officers at the time of the arrest and seizure should be considered. People v. Gonzales, 356 Mich. 247, 97 N.W.2d 16 (1959). At the time of the arrest in the instant case, a rifle was a dangerous weapon within the meaning of M.C.L.A. § 750.227; M.S.A. § 28.424. People v. Harper, 3 Mich.App. 316, 142 N.W.2d 496 (1966). People v. Smith, supra, was decided subsequent to the arrest in this action.

Defendant next contends that the prosecutor's failure to endorse and produce various unknown persons standing around the car mandates a new trial. We reject this contention because the defendant failed to move for a new trial as mandated by People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973), and applied in People v. Ebejer, 66 Mich.App. 333, 239 N.W.2d 604 (1976).

Defendants final contention is that the remarks made by the prosecutor were so prejudicial as to require a new trial. The prosecutor referred to the fact that the defendant could have produced the occupant of the back seat of the car if he thought he would testify favorably to him.

An objection was sustained by the trial judge, who instructed the jury that it was to...