People v. Henderson, 11
| Decision Date | 21 May 1974 |
| Docket Number | No. 11,11 |
| Citation | 391 Mich. 612,218 N.W.2d 2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alex Stamp HENDERSON, Defendant-Appellant. 391 Mich. 612, 218 N.W.2d 2 |
| Court | Michigan Supreme Court |
William L. Cahalan, Pros. Atty.; Dominick R. Carnovale, Chief, Appellate Dept., Michael R. Mueller, Asst. Pros. Atty., Detroit, for plaintiff-appellee.
Carl Ziemba, Detroit, for defendant-appellant.
Before the entire Bench.
Defendant was convicted on August 3, 1971 of carrying a pistol in a motor vehicle contrary to the provisions of M.C.L.A. § 750.227; M.S.A. § 28.424 which reads:
The Court of Appeals affirmed his conviction, and on appeal here he makes three assertions of error:
1) There was no proof that the defendant had no license to carry the weapon.
2) There was neither evidence that established possession of the weapon in the defendant, nor proof of his intent to carry it in the car.
3) The judge impinged upon the jury's prerogative by virtually directing a verdict of guilty by saying in his charge:
Defendant argues that the statute defined a crime having two elements: 1) the carrying of the pistol and 2) the lack of license so to carry. He maintains that since this record contains no proof touching on the lack of license, the conviction cannot stand.
The plaintiff agrees that the statute establishes two elements of the crime, but asserts that the state is absolved from proving the lack of a license by virtue of M.C.L.A. § 776.20 M.S.A. § 28.1274(1) which reads:
'In any prosecution for the violation of any acts of the state relative to use, licensing and possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or exemption contained in any such act shall be upon the defendant but this does not shift the burden of proof or the violation.'
It is true that we have heretofore regarded M.C.L.A. § 750.227; M.S.A. § 28.424, Supra, as defining a crime having two elements. People v. Gould, 384 Mich. 71, 179 N.W.2d 617 (1970); People v. Schrader, 10 Mich.App. 211, 159 N.W.2d 147 (1968).
On reconsideration however, we are persuaded that the crime defined by M.C.L.A. § 750.227; M.S.A. § 28.424 as it concerns this case, has but one element. We are satisfied that the operative words of the statute as they pertain to this defendant are:
'* * * any person who shall carry a pistol * * * in any vehicle operated or occupied by him * * * shall be guilty of a felony.'
The language in the statute 'without a license to so carry said pistol as provided by law' does not add an element to the crime, but...
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