People v. Kay

• Decision Date: 24 January 1983
• Docket Number: Docket No. 63615
• Citation: 328 N.W.2d 424,121 Mich.App. 438
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Allan KAY, Defendant-Appellant. 121 Mich.App. 438, 328 N.W.2d 424
• Court: Court of Appeal of Michigan — District of US

Page 424

328 N.W.2d 424

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Terry Allan KAY, Defendant-Appellant.

Docket No. 63615.

121 Mich.App. 438, 328 N.W.2d 424

Court of Appeals of Michigan.

Submitted Oct. 14, 1982.

Decided Nov. 17, 1982.

Released for Publication Jan. 24, 1983.

[121 MICHAPP 439] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Steven L. Pence, Pros. Atty., and Mary C. Smith, Asst. Atty. Gen., for the People.

Davis, Olsen & Filoramo by John R. Filoramo, Manistique, for defendant-appellant on appeal.

Before WALSH, P.J., and ALLEN and CAVANAGH, JJ.

ALLEN, Judge.

We are asked to decide the question of first impression of whether a dog may be a dangerous weapon within the meaning of M.C.L. Sec. 750.82; M.S.A. Sec. 28.277. Relying on Commonwealth v. Tarrant, 2 Mass.App 483, 314 N.E.2d 448 (1974), the trial court answered that question in the affirmative and on February 22, 1982, defendant was found guilty by a jury of one count of assault with a dangerous weapon. Sentenced April 1, 1982, to a term of three years probation, with the first six [121 MICHAPP 440] months to be spent in the Delta County jail, defendant appeals as of right.

On October 30, 1981, defendant stopped at Elmer's Super Value grocery store in Escanaba. Store employees suspected defendant of placing one or two steaks under his jacket. Defendant left the store without going through the cash register and upon reaching the front entrance began to run toward the parking lot where his van was parked. Inside the van was defendant's German shepherd dog. Two store employees followed defendant to the parking lot where they accused defendant of committing larceny. When defendant denied taking any merchandise, the two employees grabbed defendant. Defendant then opened the van door and either called his dog by name or said "get 'em". The dog lunged at the face of store employee Randy Berhow, striking his glasses. Berhow and the second employee, Terry Denessen, released their grip on defendant who grabbed the dog putting him back in the van. Defendant then got in the van and drove off.

Defendant was charged with one count of larceny in a building, and two counts of assault with a dangerous weapon. February 22, 1982, the jury found defendant not guilty of larceny in a building, but guilty of assault with a dangerous weapon as to store employee Randy Berhow. As to Count III relating to assault with a dangerous weapon against employee Terry Denessen, the jury was unable to reach a verdict, and the count was dismissed by the prosecutor.

The statute in question reads:

"Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon, but without intending to commit[121 MICHAPP 441] the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony." M.C.L. Sec. 750.82; M.S.A. Sec. 28.277. (Emphasis added.)

Defendant argues that because only inanimate objects have been found to be dangerous weapons in Michigan, a dog cannot be held to be a dangerous weapon under the Michigan statute. ¹ Although no Michigan case has spoken to the issue, a few other jurisdictions have addressed the question of whether a criminal defendant's use of a dog may be regarded as use of a dangerous weapon, as that term is defined in the various state statutes involved. The relevant decisions are summarized in Anno: Dog as Deadly or Dangerous Weapon for Purposes of Statutes Aggravating Offenses Such as Assault and Robbery, 7 A.L.R. 4th 607, 609, as follows:

"Although there are few reported cases involving the use of dogs as dangerous weapons, and the relevant statutes differ widely among the jurisdictions, some general observations are possible. Since many state legislatures have not resolved the question whether a criminal defendant's use of a dog to intimidate his assault or robbery victim constitutes use of an offensive, dangerous, or deadly weapon, resolution of the issue has depended upon judicial construction of the more generally phrased statutes applicable. Where the relevant statute defining dangerous or offensive weapon broadly includes any instrumentality so constructed or used as to be likely to produce death or serious bodily harm, courts have extended the characterization offensive or [121 MICHAPP 442] dangerous weapon to include dogs used to attack or intimidate the victim." (Emphasis added.)

In Tarrant, supra, the Massachusetts court held that a dog could be a "dangerous weapon" for purposes of the armed robbery statute. However, as pointed out by defendant, the court's conclusion was reinforced by the fact that the proposed Criminal Code of Massachusetts defined a dangerous weapon as including both animate and inanimate objects. Michigan's proposed Revised Criminal Code does not include animate objects in the definition of "dangerous instrument". ²

In State In the Interest of J.R., 165 N.J.Super. 346, 398 A.2d 150 (1979), the New Jersey court affirmed defendant's conviction for "assault with an offensive weapon (his dog)". The dog, a German shepherd, responded to defendant's command "sic 'er" by growling and stalking the victim. The statute claimed to have been violated, like the Michigan statute in the instant case, referred only to inanimate objects. It read:

"Any person who willfully or maliciously assaults another with an offensive weapon or instrument * * * is guilty of a high misdemeanor."

Finally, in People v. Torrez, 86 Misc.2d 369, 382 N.Y.S.2d 233 (1976), defendant sought a dismissal of an indictment charging him with use of a dangerous instrument, a German shepherd dog. The New York statute defined dangerous instrument in inanimate terms:

[121 MICHAPP 443] "13. 'Dangerous instrument' means any instrument, article or substance, including a 'vehicle' as that term is defined in this section, which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury."

The court held that the...