People v. Lynch

Decision Date23 February 1981
Docket NumberNo. 4,Docket No. 63061,4
Citation410 Mich. 343,301 N.W.2d 796
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellant, v. Anthony LYNCH, Defendant-Appellee. Calendar
CourtMichigan Supreme Court

William L. Cahalan, Pros. Atty., County of Wayne, Edward Reilly Wilson, Principal Atty., Appeals, Frank J. Bernacki, Asst. Pros. Atty., Detroit, for plaintiff-appellant.

William R. Stackpoole, Detroit, for defendant-appellee.

LEVIN, Justice.

Lynch was charged with possession of a gas-ejecting device. 1 He was convicted on his plea of guilty to the reduced charge of attempting to carry a gas-ejecting device.

The Court of Appeals, applying the vagueness test outlined in People v. Howell, 2 accepted Lynch's argument that the statute was unconstitutionally vague and overbroad and vacated his conviction, saying:

"Thus, by its failure to sufficiently distinguish between legal (such as a can of hair spray or deodorant) and illegal gas ejecting devices, the statute does not provide sufficient notice as to what conduct is prohibited. Further, * * * it permits too broad a judgment as to what behavior falls within the ambit of the law's coverage." 3

It said that the statute was not susceptible to a limiting construction and could be saved only by the legislative addition of a specific intent requirement.

We reverse the Court of Appeals. The statute clearly reaches gas-ejecting weapons such as Lynch attempted to carry, and thus the statute is not unconstitutionally vague as applied to him. 4

I

The prosecutor contends that Lynch is precluded from challenging the statute on vagueness grounds because he failed to raise the issue in Recorder's Court, and that Lynch does not have standing to assert the overbreadth of the statute in reaching innocent gas-ejecting devices because he was not carrying such an innocent device.

A

While generally a question may not be raised for the first time on appeal, this rule is not inflexible. 5 The question of the statute's vagueness was the primary issue addressed and briefed both in the Court of Appeals and in this Court. The record provides an adequate basis for decision. 6 Conflicting decisions in the Court of Appeals on this question have rendered the statute of uncertain validity. 7 Law-abiding citizens may wish to carry gas-ejecting devices for reasons of personal security, yet cannot know whether they may do so under the present state of the law. 8

B

As noted in People v. Howell, 9 "vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." Due regard for principles of standing, and recognition that declaring a statute unconstitutional is " 'the gravest and most delicate duty that this Court is called on to perform,' " 10 mandate that, outside the context of the First Amendment,

"one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." 11

Lynch thus will not be heard to assert that the statute is overbroad in reaching innocent gas-ejecting devices where the facts on which he was convicted show that he was carrying a gas-ejecting weapon and, as discussed below, the statute clearly reaches such conduct. 12 II

While the statute by its terms appears to reach gas-ejecting weapons, a thorough discussion of the meaning of the statute is appropriate in light of the Court of Appeals holding that the statute is not susceptible to a limiting construction and the conflict among different Court of Appeals panels regarding the statute's constitutionality.

The statue in effect at the time Lynch was charged provided: 13

"Any person who shall manufacture, sell, offer for sale or possess any machine gun or firearm which shoots or is designed to shoot automatically more than 1 shot without manual reloading, by a single function of the trigger, or any muffler, silencer or device for deadening or muffling the sound of a discharged firearm, or any bomb, or bomb shell, blackjack, slung shot, billy, metallic knuckles, sand club, sand bag, or bludgeon or any gas ejecting device, weapon, cartridge, container or contrivance designed or equipped for or capable of ejecting any gas which will either temporarily or permanently disable, incapacitate, injure or harm any person with whom it comes in contact, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years or by a fine of not more than $2,500.00." M.C.L. § 750.224; M.S.A. § 28.421.

The italicized language was added by a 1929 amendment. 1929 P.A. 206.

A literal construction of the gas-ejecting-device language, independent of the statutory context, would cover any device capable of emitting a gas that would temporarily harm a person. It has long been the rule in Michigan, however, that a literal construction ought not to be given where it is contrary to the apparent intent of the Legislature. 14

"The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense were they intended to be understood or what understanding do they convey as used in the particular act." 15

Applying the rule of noscitur a sociis, that "(t)he meaning of a word is or may be known from the accompanying words," 16 we note that the language at issue is included in a statue dealing with such items as machine guns, bombs, blackjacks, metallic knuckles, billies and bludgeons. The objects in this class are not only exclusively weapons, but are weapons used almost exclusively in perpetration of crime. Finding the language at issue in a statute dealing with such a narrow class of weapons is a strong indication that the Legislature intended to reach only gas-ejecting weapons.

This impression is bolstered by examining related statutes. 17 When the Legislature amended the statute to include the language dealing with gas-ejecting devices, it was faced with the choice of including it in 1927 P.A. 372, § 3, which made the manufacture, sale or possession of the listed objects a strict-liability offense, or in § 4, which required an intent to use the objects there listed "unlawfully against the person of another". M.C.L. § 750.226; M.S.A. § 28.423. The Legislature chose to include the language in the section making possession a strict liability offense. Its choice indicates that it thought of gas-ejecting devices not only as weapons, but as weapons of such danger as to merit their prohibition regardless of the intent of the possessor.

Further, the title to the 1929 statute adding the gas-ejecting device language indicates that the Legislature was concerned with weapons: 18

"An Act to regulate and license the selling, purchasing, possessing and carrying of certain firearms; to prohibit the buying, selling or carrying of certain firearms without a license therefor; to prohibit the possession, manufacture or sale of certain weapons, including gas ejecting or emitting weapons, and attachments, except by certain persons licensed to manufacture, sell or possess any gas ejecting or emitting weapon, cartridge or device * * *." 19 (Emphasis supplied.)

Contemporaneous construction of the statute is also of assistance. A 1931 decision, People v. Brown, 20 considered a constitutional challenge to the statute. While that challenge was based on the right to bear arms and was asserted by a defendant convicted of carrying a blackjack, this Court found it necessary to assess the nature of the items which the Legislature intended to prohibit to decide whether the provision was within the police power of the state. That characterization of the intended subject matter of the statute is of precedential significance here:

"The list of weapons in (1929 Compiled Laws) section 16751 * * * is significant and demonstrates a definite intention of the legislature to protect society from a recognized menace. It does not include ordinary guns, swords, revolvers, or other weapons usually relied upon by good citizens for defense or pleasure. It is a partial inventory of the arsenal of the 'public enemy,' the 'gangster'. It describes some of the particular weapons with which he wars on the State and reddens his murderous trail." 21

It was thus decided in 1931 that the statute dealt with weapons weapons of such danger and malevolent associations as to merit total eradication from society, with narrow, licensed exceptions. 22 We see no reason to depart from that decision today.

Lynch was carrying in his pocket "some spray stuff like the mailman would carry" 23 that would "make people cough." 24 These facts, adduced by the trial judge during Lynch's plea-taking proceeding, are such as would allow a trier of fact to reasonably draw the inference that Lynch was attempting to carry a gas-ejecting weapon. There was therefore an adequate factual basis for accepting his guilty plea. 25

An indication that such small, hand-held gas-ejecting weapons are within the intended prohibition of the statute is provided by an opinion issued by the Attorney General in 1932. 26 That opinion states that a "gas pen" could be licensed only to equip certain premises or vehicles and not to be carried on one's person as a concealed weapon. The Attorney General's opinion that gas-pen weapons were prohibited by the statute coincides with our analysis of the intended reach of the statute.

Our construction of the statute disposes of the argument, relied on by the Court of Appeals, that the statute reaches non-weapon devices such as hairspray or deodorant.

The order of the Court of Appeals is reversed and Lynch's conviction is reinstated.

KAVANAGH, WILLIAMS, FITZGERALD, RYAN, COLEMAN and MOODY, JJ., concur.

LEVIN, Justice (concurring).

As set forth in the opinion of the Court, the statute as enacted provided sufficiently...

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