People v. Gibson

• Decision Date: 05 December 1979
• Docket Number: Docket No. 78-4055
• Citation: 94 Mich.App. 172,288 N.W.2d 366
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonardo GIBSON, Defendant-Appellant. 94 Mich.App. 172, 288 N.W.2d 366
• Court: Court of Appeal of Michigan — District of US

Page 366

288 N.W.2d 366

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leonardo GIBSON, Defendant-Appellant.

Docket No. 78-4055.

94 Mich.App. 172, 288 N.W.2d 366

Court of Appeals of Michigan.

Dec. 5, 1979.

Released for Publication Feb. 28, 1980.

[94 MICHAPP 174] Robert A. Rosenberg, Brighton, for defendant-appellant.

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

Before BASHARA, P. J., and J. H. GILLIS and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

Defendant was convicted of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and possession of a firearm in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant moved for a new trial at sentencing on May 17, 1978. That motion was denied. Defendant was sentenced at that time to a prison term of 8 to 20 years on the armed robbery count and to the mandatory 2 years on the felony-firearm count. Defendant appeals by right.

Defendant's conviction arose out of the robbery of the Polka Dot Party Store in Wyandotte, Michigan, by two men. Defendant was identified at trial as being the robber without a gun.

Defendant argues that the felony-firearm statute [94 MICHAPP 175] is unconstitutional under the double jeopardy prohibition and under Michigan Const.1963, art. 4, § 25, which prohibits amendment of statutes by implication.

These constitutional arguments were recently settled by the Supreme Court in Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 391, 280 N.W.2d 793 (1979). The statute was found to be constitutional.

Defendant further argues that one not in actual possession of a firearm cannot be convicted under the felony-firearm statute of aiding and abetting a person in actual possession of a firearm who violates the felony-firearm statute. This Court has been divided on this issue. Cf., People v. Powell, 90 Mich.App. 273, 282 N.W.2d 803 (1979), and People v. Perry, 92 Mich.App. 732, 285 N.W.2d 217 (1979).

"It is our opinion that the proper application of the aiding and abetting statute, M.C.L. § 767.39; M.S.A. § 28.979, to the felony-firearm statute requires us to hold that one not in actual possession of a firearm may be charged with aiding and abetting one who does possess a firearm.

"The felony-firearm statute requires that a person carry or have in his possession a firearm at the time he commits or attempts to commit a felony.

"The aider and abettor statute provides that:

" 'Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.'

"There is no language in either the felony-firearm statute or the aider and abettor statute which limits the application of one to the other. People v. Tavolacci, 88 Mich.App. 470, 276 N.W.2d 919 (1979). Further, the aider and abettor statute has been previously applied to possessory crimes. People v. Doemer, 35 Mich.App. 149, [94 MICHAPP 176] 192 N.W.2d 330 (1971)." People v. Wimbush, 94 Mich.App. ---, 288 N.W.2d 375 (1979).

Angelo Sandusky, defendant's purported partner in the robbery, mentioned at trial that the gun used to perpetrate the armed robbery was not operable. Defendant did not pursue or challenge this evidence at trial. At the time of sentencing defendant moved for a new trial on the grounds that the prosecution had failed to prove, as an element of its case, that the firearm was operable. The motion was denied and defendant claims error.

Initially it should be noted that the armed robbery statute does not require proof that a gun is operable. It is the victim's reasonable belief that the defendant is armed that is sufficient to sustain the conviction. Whether the gun was operable or not, therefore, would not affect this defendant's armed robbery conviction.

The felony-firearm statute, M.C.L. § 750.227b; M.S.A. § 28.424(2), provides:

"Sec. 227b. (1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years."

The definition of a firearm is contained in M.C.L. § 8.3t; M.S.A. § 2.212(20):

"Sec. 3t. The word 'firearm', except as otherwise specifically defined in the statutes, shall be construed to include any weapon from which a dangerous projectile [94 MICHAPP 177] may be propelled by using explosives, gas or air as a means of propulsion, except any smooth bore rifle or handgun designed and manufactured exclusively for propelling BB's not exceeding .177 calibre by means of spring, gas or air."

The primary and fundamental rule of statutory construction is to ascertain and give effect to the purpose and intention of the Legislature. Intent must be inferred from the language used, but it is not the meaning of the particular words in the abstract only or their strictly grammatical construction alone that governs. The words are to be applied to the subject matter and to the general scope of the provision, and they are to be considered in light of the general purpose sought to be accomplished or the evil sought to be remedied. White v. Ann Arbor, 406 Mich. 554, 562, 281 N.W.2d 283 (1979). See also People v. Gilbert, ...