People v. Jackson
| Decision Date | 21 November 1979 |
| Docket Number | 78-4475,Docket Nos. 78-946 |
| Citation | 287 N.W.2d 357,94 Mich.App. 24 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony Steven JACKSON and Joseph Dials, Defendants-Appellants. 94 Mich.App. 24, 287 N.W.2d 357 |
| Court | Court of Appeal of Michigan — District of US |
[94 MICHAPP 25] Loren E. Monroe, Detroit, for defendants-appellants.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Reilly Wilson, III, Appellate Chief Asst. Pros. Atty., for plaintiff-appellee.
[94 MICHAPP 26] Before CYNAR, P. J., and WALSH and BeBEAU, * JJ.
Defendant, Anthony Steven Jackson, was convicted on his pleas of guilty of the offenses of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, and possession of a firearm in the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant, Joseph Dials, was also convicted on his pleas of guilty of the same offenses.
On appeal both defendants contest the constitutionality of the felony-firearm statute, M.C.L. § 750.227b; M.S.A. § 28.424(2). We have reviewed both records and have carefully considered the arguments of counsel. We find no reversible error in the convictions of either defendant.
The felony-firearm statute does not violate Michigan Const.1963, art. 4, § 25, by revising, altering, or amending existing laws without reenacting and publishing them as required. Wayne County Prosecuting Attorney v. Recorder's Court Judge, 92 Mich.App. 433, 285 N.W.2d 318 (1979), People v. Johnson, 85 Mich.App. 654, 272 N.W.2d 605 (1978), People v. Tavolacci, 88 Mich.App. 470, 276 N.W.2d 919 (1979).
Conviction of both felony-firearm and second-degree murder does not violate the constitutional prohibition against double jeopardy. Wayne County Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 280 N.W.2d 793 (1979).
Finally, the felony-firearm statute is not unconstitutionally vague. As the Supreme Court stated in People v. Howell, 396 Mich. 16, 20, 238 N.W.2d 148, 149-150 (1976):
"A statute may be challenged for vagueness on three grounds:
[94 MICHAPP 27] "1. It does not provide fair notice of the conduct proscribed.
The felony-firearm statute proscribes carrying or possessing a firearm while committing or attempting to commit a felony. The crimes defendants were charged with were felonies. Both were in possession of a firearm at the time of the commission of the offenses. Under the facts of these cases the statute certainly provides "fair notice of the conduct proscribed" and it does not confer on the trier of fact "unstructured and unlimited discretion to determine whether an offense has been committed".
Moreover, defendant Jackson's contention that the statute is overbroad must also fail. Neither defendant argues that the statute impinges on First Amendment freedoms. When the statute challenged does not involve First Amendment freedoms, the challenge of overbreadth must be evaluated in the light of the facts of the case in which the issue is raised. People v. Howell, supra, 21, 238 N.W.2d 148. Since neither defendant makes any claim that the conduct of which they were accused is constitutionally protected, neither has any standing to raise an overbreadth issue. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
Defendant Dials states the final issue to be as follows:
"Where a person is assaulted, and in the course of the assault, shoots the attacker, after which he panics and kills a witness, is he chargeable with murder in the second-degree?"
[94 MICHAPP 28] At the plea-taking proceeding defendant Dials admitted that when he and...
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