People v. Clark

• Decision Date: 06 February 1970
• Docket Number: No. 1,Docket No. 7454,1
• Citation: 176 N.W.2d 427,21 Mich.App. 712
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herman CLARK, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 427

176 N.W.2d 427

21 Mich.App. 712

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herman CLARK, Defendant-Appellant.

Docket No. 7454.

Court of Appeals of Michigan, Division No. 1.

Feb. 6, 1970.

Released for Publication May 1, 1970.

David W. Diskin, Canner & Diskin, Detroit, for defenant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., Wayne County, Detroit, for plaintiff-appellee.

Before LESINSKI, C.J., and LEVIN and DANHOF, JJ.

LESINSKI, Chief Judge.

Defendant Herman Clark was convicted after a jury trial of carrying a concealed weapon, M.C.L.A. § 750.227 (Stat.Ann.1962 Rev. § 28.424). Defendant brings this appeal as of right.

On November 18, 1968, defendant was arrested while on his job at the plant of an industrial corporation. At trial Patrolman Asper, one of the arresting officers, testified:

'As Patrolman Raymond advised Mr. Clark that he was under arrest, I noticed that Mr. Clark was standing with one hand upon a counter, the other one in his right--I guess you call it an 'overcoat pocket'--and I asked Mr. Clark what he had in his pocket, and he said, 'Nothing.' And as he said this, his pocket came open and I could see down between the inside of his pocket in his hand a white pearl, which looked like grips on a gun. And Patrolman Raymond and I both grabbed his arms, and I reached into his pocket and between his hand and the object that I had seen in his pocket, and I pulled out a pistol.'

The gun, which was unloaded, was confiscated. After being taken to the police department, a clip of bullets for the pistol was found in another pocket.

The concealed weapons statute, under which defendant was prosecuted, reads in pertinent part:

'Any person who shall carry a pistol concealed on or about his person, or whether concealed or otherwise, in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to so carry said pistol as provided by law, 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.'

Two issues are raised on appeal. First, whether the pistol was a 'concealed weapon' within the meaning of the statute. Second, whether defendant is exempt from prosecution by the statutory provision allowing possession of a weapon in a 'place of business.'

Defendant argues that as the police officers could see the weapon before they searched him, it was not a 'concealed weapon.' It is also argued that since the pistol was unloaded, it could not be considered a dangerous weapon.

In People v. Jones (1968), 12 Mich.App. 293, 295, 162 N.W.2d 847, 848, this Court stated: 'We do not think that the word 'concealed' as used in the statute means total concealment.' And at 296, 162 N.W.2d at 849 the Court noted:

'The evident statutory purpose is reflected in the general rule applied in other jurisdictions that Absolute invisibility is not indispensable to concealment of a weapon on or about the person of a defendant, and that a weapon is concealed when it is not discernible by the ordinary observation of persons coming in contact with the person carrying it, casually observing him, as people do in the ordinary and usual associations of life.' (Emphasis supplied.) (Citations omitted.)

In the instant case the officer could see the pistol only after defendant's pocket came open and the officer looked down, inside the picket. The pistol in defendant's pocket was a concealed weapon. People v. Jones, Supra. See, also, People v. Stirewalt (1969), 16 Mich.App. 343, 167 N.W.2d 779.

The fact that the gun was unloaded is legally irrelevant. M.C.L.A. § 750.222 (Stat.Ann.1962 Rev. § 28.419), defines 'pistol':

"Pistol' as used in this chapter means any firearm, Loaded or unloaded, 30 inches or less in length, or any firearm, loaded or unloaded, which by its construction and appearance conceals it as a firearm.' (Emphasis supplied.)

Moreover, in People v. Williamson (1918), 200 Mich. 342, 166 N.W. 917, defendant was arrested for carrying a concealed gun which was unloaded and for which defendant had no cartridges in his possession. The Court stated at 349, 166 N.W. at 919: 'The authorities are agreed that a revolver or pistol need not be loaded to come within the statute.'

Defendant argues that he was arrested at his place of employment and that he, therefore, falls within the statutory exception for those in their 'place of business.' We disagree.

It is hornbook law that statutes must be read so as to facilitate...