People v. Herron

• Decision Date: 05 April 1976
• Docket Number: Docket No. 22184
• Citation: 68 Mich.App. 381,242 N.W.2d 584
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Maurice HERRON, Defendant-Appellant. 68 Mich.App. 381, 242 N.W.2d 584
• Court: Court of Appeal of Michigan — District of US

Page 584

242 N.W.2d 584

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Maurice HERRON, Defendant-Appellant.

Docket No. 22184.

68 Mich.App. 381, 242 N.W.2d 584

Court of Appeals of Michigan.

April 5, 1976.

Released for Publication June 14, 1976.

[68 MICHAPP 382] O'Connor, McNamara & O'Keeffe, by John P. O'Keeffe, Ionia, for defendant-appellant.

[68 MICHAPP 381] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James L. Banks, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and D. E. HOLBROOK and ALLEN, JJ.

ALLEN, Judge.

A jury convicted defendant, a prison inmate, of unauthorized possession of an implement by a convict which may be used to injure another. M.C.L.A. § 800.283; M.S.A. § 28.1623. He appeals raising three assignments of error, one of which merits discussion.

Defendant asserts he was convicted under an unconstitutionally vague law. The people unsurprisingly maintain a contrary view. That part of the statute under attack reads:

'A convict without authorization, shall not have on his person on under his control or in his possession any weapon or other implement which may be used to injure any convict or other person, or to assist any convict to escape from imprisonment.' M.C.L.A. § 800.283; M.S.A. § 28.1623.

The standard for ascertaining whether a criminal statute is void for vagueness is not in dispute:

'(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939).

Also see Suits v. Meridian Twp., 60 Mich.App. 347, 230 N.W.2d 426 (1975), Kalita v. Detroit, 57 Mich.App.[68 MICHAPP 383] 696, 226 N.W.2d 699 (1975). The Court does not view the provision as so vague that men of ordinary intelligence must guess at its meaning and application. Clearly, the statute was intended to prohibit possession of weapons or objects similar to weapons which might be used to harm others or make an escape. Moreover, the section challenged applies only to prison inmates and only to unauthorized possession or control.

Defendant submits that under the language of the statute a prisoner could be subject to criminal responsibility for possessing items such as a pencil, ball point pen, shoestrings, and religious paraphernalia. The Court is unimpressed. The provision in question will not be struck down by this Court simply because the Legislature failed to list each and every 'implement' imaginable. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). We must use some common sense in our construction, and requiring the Legislature to specify every type of implement proscribed would make little sense. Further, we believe a prisoner would have implicit authority, unless expressly forbidden, to have shoestrings in his or her shoes or to possess a pen for writing. Be that as it may, instant defendant was not convicted for possessing a pencil or shoestring. The record reveals that prison authorities found a draftsman's compass on defendant's person during a...