People v. Kincade, Docket No. 21040--1
| Decision Date | 30 May 1975 |
| Docket Number | No. 2,Docket No. 21040--1,2 |
| Citation | 61 Mich.App. 498,233 N.W.2d 54 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Gregory KINCADE, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Campbell, Lee, Kurzman & Leitman by Parvin C. Lee, Jr., Bloomfield Hills, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.
Before V. J. BRENNAN, P.J., and D. E. HOLBROOK and CAVANAGH, JJ.
After a jury trial in Oakland County Circuit Court, the defendant was convicted of carrying a concealed weapon, M.C.L.A. § 750.227; M.S.A. § 28.424, and possession of a controlled substance, M.C.L.A. §§ 335.318, 335.341(4)(b); M.S.A. §§ 18.1070(18), 1070(41)(4)(b).
On appeal, the defendant contends the trial court erred in three respects. First, he alleges that it was error to deny his motion for directed verdict on the concealed weapons charge because the element of concealment was not established. Second, he argues that a 'usable amount' of the controlled substance was not established. Finally, the defendant claims the prosecution erroneously placed his character into evidence.
Prior to trial, both in the district and circuit courts, the defendant moved to quash the information on the grounds that 'concealment' had not been established at his preliminary examination. Both motions were denied.
At trial Pontiac Police Officer Allan Booze testified that a large number of officers, during the early morning hours of April 13, 1973, participated in a raid on 'an after hours' and 'illegal-sale-of-liquor' joint in Pontiac. Officer Booze and his partner Officer Drohomer were instructed to go to a particular door of the building and to detain people from leaving the premises. Just as he reached the door of the building, he met the defendant who was running out of the door. Officer Booze observed that he had a dark object in his hand, which was at his side. The defendant's hand was clenched around the object. As the defendant was five or six feet away from the officer, the defendant 'straight-armed' the objected in the officer's direction. The object glanced off the side of the officer's head. The officer then picked the object up from the ground and realized for the first time that it was a .38-caliber revolver.
Officer Booze made clear in his testimony that there was no indication that the defendant was pulling the gun from his clothing and that he believed that in throwing the gun the defendant was only trying to throw it away, not to strike the offier. To defense counsel's question as to whether the defendant was trying to conceal the weapon from the officer, the officer answered that he felt the defendant was just trying to get rid of it.
Officer Alan Drohomer testified that he saw that the defendant had something in his hand but that because the area around the doorway was dark (it was 4:00 a.m.), he also could not tell what the object was. There was no light outside the building. Other police officers in less advantageous positions to view the event testified, but none added materially to the testimony of Officers Booze and Drohomer.
In reviewing the above-stated facts to determine whether a directed verdict was improperly denied, we must, taking the evidence in a light most favorable to the prosecution, decide whether there are sufficient facts to support the finding of the element of 'concealment'. See People v. Watkins, 36 Mich.App. 380, 193 N.W.2d 914 (1971), Aff'd 388 Mich. 717, 202 N.W.2d 780 (1972).
%2990,0000,61 Mich.App. [PG502]M.C.L.A. § 750.227; M.S.A. § 28.424, declares it a felony for a person to 'carry a pistol concealed on or about his person * * *'. The purpose of the statute is explained by Chief Judge Lesinski in People v. Jones, 12 Mich.App. 293, 295--296, 162 N.W.2d 847 (1968), quoting from People v. Raso, 9 Misc.2d 739, 170 N.Y.S.2d 245, 251 (1958)
Absolute invisibility of a weapon is not indispensable to concealment; the weapon need not be totally concealed. People v. Stirewalt, 16 Mich.App. 343, 167 N.W.2d 779 (1969). See also People v. Jackson, 43 Mich.App. 569, 204 N.W.2d 367 (1972). The test for concealment in this jurisdiction was stated by People v. Jones, supra. A weapon is concealed,
'* * * when it is not discernible by the ordinary observation of persons coming in contact with the person carrying it, casually observing him, as people do in the ordinary and usual associations of life'. 12 Mich.App. 293, 296, 162 N.W.2d 847, 849.
The prosecution takes the position that concealment has been found in a number of cases which are directly analogous to the present case. In People v. Clark, 21 Mich.App. 712, 176 N.W.2d 427 (1970), a pistol was held to be concealed where it was in the defendant's pocket and the officer could see it only after the pocket came open and the officer looked down into the pocket. Likewise, in People v. Lacopelli, 30 Mich.App. 105, 186 N.W.2d 38 (1971), the defendant placed a gun in his coat after having it in plain sight. The Court upheld the carrying a concealed weapon conviction. A directed verdict on the same ground as in the present case was denied in People v. Charron, 54 Mich.App. 26, 220 N.W.2d 216 (1974), where the police officer noticed a knife protruding from the rear pocket of a defendant's pants. Finally, evidence that defendant had placed a revolver in the belt or waistband of his trousers and that the weapon could not be readily seen was held to be sufficient to uphold the conviction in People v. Jackson, 43 Mich.App. 569, 204 N.W.2d 367 (1972).
In all of these cases, a weapon has been found at least partially covered by the defendant's clothing. We do not hold, however, that a revolver cannot be concealed in a person's hand. Indeed, situations readily come to mind in which the element of concealment would be met by the secreting of a weapon by the use of a person's hands.
But the fact that part of a revolver is covered by its holder's hand does not by itself constitute concealment. If that were the case, everyone not authorized by statute to carry a firearm would be guilty of the felony of carrying a concealed weapon for simply holding onto it. Such a count could be added to every charge of armed robbery, felonious assault and several other offenses.
In striking down a conviction under this statute, M.C.L.A. § 750.227; M.S.A. § 28.424, the Michigan Supreme Court in People v. Smith, 393 Mich. 432, 225 N.W.2d 165 (1975), construed the statutory phrase 'dangerous weapon' as not including an M--1 rifle under the rule of Ejusdem generis. It is interesting to note that in that case, as in this one, the prosecutor could have charged the defendant under other, more appropriate statutes. The defendants in both cases perhaps should have been charged with M.C.L.A. § 750.226; M.S.A. § 28.423, which prohibits the carrying of firearms or other dangerous weapons with unlawful intent.
Statutes must be construed according to their ordinary and natural meaning. The word 'concealed' ordinarily connotes some kind of withdrawal from observation so as to hide or secrete an object.
Whether a concealment has been established by the evidence presented is Ordinarily a question for the jury. People v. Jackson, supra. But the question of whether there is sufficient evidence on an element of the offense is most definitely within the province of the courts. People v. Vail, 393 Mich. 460, 227 N.W.2d 535 (1975).
A careful examination of the record convinces us that the evidence did not establish the element of concealment. It is true that the officers who confronted the defendant could not discern that he possessed a revolver. But concealment occurs when the pistol is not discernible by the ordinary observation of persons casually observing the person carrying it. People v. Jones, supra. The circumstances surrounding the meeting of the police officers and the defendant in this case were certainly not conducive to a casual observation. There is no evidence to counter the conclusion that the officers' inability to identify the object was due to the limited visibility in the doorway area and the fact that the confrontation occurred suddenly...
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