People v. Harper
| Decision Date | 24 May 1966 |
| Docket Number | No. 1,No. 330,330,1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David HARPER, Defendant-Appellant. Cal |
| Court | Court of Appeal of Michigan — District of US |
Sidney Fershtman, Detroit, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, samuel H. Olsen, Pros. Atty., Wayne County, Detroit, for appellee.
Before WATTS, P.J., and BURNS and GILLIS, JJ.
The defendant David Harper was arraigned on an information in the recorder's court for the city of Detroit alleging in the first count that, on the 7th day of February, 1964, he went armed with a dangerous weapon, to-wit, a double-barreled, sawed-off shot gun with intent to use the same unlawfully against the person of another in violation of C.L.1948, § 750.226 (Stat.Ann.1962 Rev. § 28.423) and in the second count with carrying a dangerous weapon in a certain motor vehicle occupied by the defendant, contrary to C.L.1948, § 750.227 (Stat.Ann.1962 Rev. § 28.424).
Trial commenced before a jury on March 26, 1964 and on March 31, 1964 the jury returned a verdict of guilty on both counts. On April 15, 1964 the defendant was sentenced to the state prison for concurrent terms of not less than two nor more than five years on both counts.
Defendant contends that there was no competent evidence to support a finding of guilty on either count in the information; that the shot gun was obtained by reason of an illegal search and seizure and was therefore inadmissible as evidence; and that the instructions given by the court to the jury were erroneous and prejudicial.
At trial the defendant's accomplice, William Leadbetter, testified that the defendant told him that he knew of a bar where they could pick up from $10,000 to $12,000 in a holdup. They agreed to meet the following morning at 6 o'clock. The next morning the defendant got into Leadbetter's car carrying a brown paper bag, which the defendant stated contained a shot gun. Leadbetter, at the defendant's request, opened the trunk and the defendant put the bag in the trunk. The defendant requested and received the car trunk key explaining that if they were stopped by the police, the trunk couldn't be opened. Leadbetter parked about a block from the bar in question and in accordance with their plans went into the bar alone to survey it, leaving the defendant in the car. Shortly thereafter the defendant came in and sat at the opposite end of the bar. Within three to five minutes the police arrived, questioned both men, and took them into custody. The bartender testified that he became suspicious of the men and he asked a driver making a beer delivery to call the police. One of the arresting officers testified that he and his partner searched both men, found a 1956 Pontiac automobile registration on Leadbetter, located the car in the area and discovered a set of keys and a shot gun shell underneath the dashboard. The officers opened the trunk and found the brown paper bag containing a disassembled, sawed-off shot gun.
Defendant contends, first, that he cannot be convicted on the charge contained in count one because: 1) He had no firearm or other dangerous weapon on his person or within his immediate possession, 2) He was not armed with any such article, and 3) There is no competent evidence of any attempt to use such proscribed article unlawfully against the person of another. With this contention ...
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People v. Smith
...v. Ferguson (1965), 376 Mich. 90, 95, 135 N.W.2d 357; People v. Wilson (1967), 8 Mich.App. 651, 155 N.W.2d 210; People v. Harper (1966), 3 Mich.App. 316, 320, 142 N.W.2d 496; People v. Heibel (1943), 305 Mich. 710, 712, 9 N.W.2d 826.See, also, Gouled v. United States, Supra, where defendant......
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