People v. Dorris, Docket Nos. 43162

• Decision Date: 04 March 1980
• Docket Number: 77-4860,Docket Nos. 43162
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jo Ann DORRIS and John Murray, Defendants-Appellants. 95 Mich.App. 760, 291 N.W.2d 196
• Court: Court of Appeal of Michigan — District of US

Page 196

291 N.W.2d 196

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jo Ann DORRIS and John Murray, Defendants-Appellants.

Docket Nos. 43162, 77-4860.

95 Mich.App. 760, 291 N.W.2d 196

Court of Appeals of Michigan.

March 4, 1980.

Released for Publication April 30, 1980.

[95 MICHAPP 761] Charles E. Kovsky, Detroit, for Jo Ann Dorris.

I. Goodman Cohen, Detroit, by Charles E. Kovsky, Detroit, for John Murray.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, App. Chief Pros. Atty., Anne B. Wetherholt, Asst. Pros. Atty., for plaintiff-appellee.

[95 MICHAPP 762] Before T. M. BURNS, P. J., and BASHARA and KAUFMAN, JJ.

BASHARA, Judge.

Defendants appeal from their convictions by a jury of possession of an incendiary device, M.C.L. § 750.211a; M.S.A. § 28.408(1).

Defendants first contend that the trial judge improperly denied a motion for directed verdicts because the proofs offered by the prosecutor did not sufficiently comply with the charge in the information. They argue that, therefore, the trial judge should have granted their motion for directed verdicts at the close of the prosecution's proofs. Count I of the information alleged that defendants

"did have in their possession 5 molotov cocktails device which was (sic ) designed to explode upon impace (sic ) or explode upon the application of heat or a flame, or which was highly incendiary and with intent to use the device unlawfully against the person or property of another, contrary to Sec. 750.211a, M.C.L.A."

The gist of defendants' argument is that the testimony of the only qualified expert was that defendants were not in possession of "Molotov cocktails".

The prosecution presented two witnesses who testified as to the contents and properties of the containers found in the trunk of the auto owned by one of the defendants and in which they were riding when apprehended. The first, from the Detroit Police Department arson squad, referred to the containers as "Molotov cocktails". The second, from the State Department of Public Health crime detection laboratory, testified that the containers would not be classified as "Molotov cocktails" because they lacked sulphuric acid. However, both [95 MICHAPP 763] witnesses agreed that the containers were filled with gasoline and each contained a wick. They also concurred in the opinion that the containers would be highly inflammable. The State Health Department witness indicated that if the wick was lighted and the container thrown, the liquid in the container would ignite as it spilled out on impact.

A review of the testimony leads us to conclude that the defendants were fully aware of the specific act said to violate the law. ¹ Other than the term "Molotov cocktails", the information is very similar to the statutory language. All that need be proved is that defendants had in their "possession any device * * * which * * * is highly incendiary, with intent to use the device unlawfully against the person or property of another". M.C.L. § 750.211a; M.S.A. § 28.408(1). ²

A charge in which the illegal conduct of the defendant is phrased in the language of the statute is sufficient. People v. Lightstone, 330 Mich. 672, 48 N.W.2d 146 (1951); People v. Kelley, 78 Mich.App. 769, 260 N.W.2d 923 (1977).

The standard for review of a trial court's denial of a motion for a directed verdict was well stated in People v. Royal, 62 Mich.App. 756, 757-758, 233 N.W.2d 860 (1975):

"In passing on a motion for a directed verdict of [95 MICHAPP 764] acquittal in a criminal case, the reviewing court must 1) consider only the evidence which had been introduced at the time the motion was made, * * * 2) view that evidence in the light most favorable to the prosecution, * * * and 3) determine whether that evidence, if credible and believed, would justify a reasonable man in concluding that all elements of the crime were established beyond a reasonable doubt." (Citations and footnotes omitted.)

Viewed in light of the foregoing parameters, we find the court's denial of the motion for directed verdicts to be proper.

Defendants also claim that the people failed to prove that the "Molotov cocktails" would explode. We reject the argument. The prosecution did not have to prove that the confiscated containers were "Molotov cocktails", nor that they would explode. As previously stated, the language of the statute permits a showing that the device was highly incendiary.

Defendants contend the doctrine of ejusdem generis requires that the term "highly incendiary" be restricted to a definition which incorporates an explosive device. To the contrary, In re Mosby, 360 Mich. 186, 192, 103 N.W.2d 462 (1960), advises:

"The rule of ejusdem generis is not to be invoked in every case where general words follow (or possibly precede) specific words. For example, it applies only where the specific words relate to subjects of a single kind, class, character, or nature, as noted above. In all events, the rule is useful only for the purpose of aiding the judicial search for the sometimes elusive scrivener's intent. Where the language used, considered in its entirety, discloses no purpose of limiting the general words used, the rule of ejusdem generis may not be invoked to defeat or limit the purpose of the enactment."

[95 MICHAPP 765] See also, People v. Powell, 280 Mich. 699, 274 N.W. 372 (1937), and People v. O'Hara, 278 Mich. 281, 270 N.W. 298 (1936).

Before the enactment of the present statute in 1966, and amendment in 1968, M.C.L. § 750.210; M.S.A. § 28.407 was the only statutory prohibition against such devices and it specifically referred to "bombs". M.C.L. § 750.211a should be viewed as expressing the legislative intent to prohibit fire-starting or spreading devices, and not restricted to "bombs" or explosive implements. We conclude that the doctrine of ejusdem generis has no application to the case at bar.

The record supports the prosecution's charge. It...