People v. Jiminez, Docket No. 8476

• Decision Date: 30 October 1970
• Docket Number: No. 3,Docket No. 8476,3
• Citation: 183 N.W.2d 853,27 Mich.App. 633
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Pablo JIMINEZ, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 853

183 N.W.2d 853

27 Mich.App. 633

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Pablo JIMINEZ, Defendant-Appellant.

Docket No. 8476.

Court of Appeals of Michigan, Division No. 3.

Oct. 30, 1970.

Rehearing Denied Dec. 15, 1970.

Released for Publication Feb. 26, 1971.

Leave to Appeal Denied March 19, 1971.

Philip R. Sturtz, Brisbois, Sturtz & Ladue, Saginaw, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George E. Thick, II, Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and V. J. BRENNAN, and O'HARA, ^* JJ.

O'HARA, Judge.

This appeal arises from defendant's jury conviction of carrying a concealed weapon in violation of statute. ¹ Defendant contends that at trial the prosecution failed to offer proofs showing that he was not within certain exemptions set out in the statute.

The concealed weapons statute provides as follows:

'Any person who shall carry a dagger, dirk, stiletto or other dangerous weapon except hunting knives adapted and carried as such, concealed on or about his person, or whether concealed or otherwise in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him; and any person who shall carry a pistol concealed on or about his person, or, whether concealed or otherwise, in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to so carry said pistol as provided by law, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than 2,500 dollars.'

Defendant specifically contends that no proofs were offered to show that he was not in his 'dwelling house or place of business or on other land possessed by him.'

Prior to 1968, we would have given serious consideration to such an objection. People v. Schrader (1968), 10 Mich.App. 211, 159 N.W.2d 147. However, in that year the legislature took notice of our decisions holding that it was the burden of the prosecutor to prove that the defendant did not come within a statutory exception. The legislature responded by enacting a law which held that, in trials for carrying concealed weapons, the burden is on the defendant to show that he comes within one of the exemptions.

'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 for the violation.' M.C.L.A. § 776.20 (Stat.Ann.1970 Cum.Supp. § 28.1274(1)).

The application of this statute to the instant case removed the responsibility from the prosecutor of showing that defendant was not on his own property.

Defendant's second argument is that no proofs were entered which showed his loaded gun was operable.

The statute specifically refers to 'any person who shall carry a Pistol concealed on or about his person.' 'Pistol' is defined in M.C.L.A. § 750.222 (Stat.Ann.1970 Cum.Supp § 28.419).

"Pistol' as used in this chapter means any firearm, loaded or unloaded, 30 inches or less in length, or any firearm, loaded or unloaded, which by its construction and appearance conceals it as a...