People v. McCadney

• Decision Date: 26 January 1982
• Docket Number: Docket No. 52086
• Citation: 315 N.W.2d 175,111 Mich.App. 545
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dwayne McCADNEY, Defendant-Appellant. 111 Mich.App. 545, 315 N.W.2d 175
• Court: Court of Appeal of Michigan — District of US

Page 175

315 N.W.2d 175

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dwayne McCADNEY, Defendant-Appellant.

Docket No. 52086.

111 Mich.App. 545, 315 N.W.2d 175

Court of Appeals of Michigan.

Submitted June 11, 1981.

Decided Nov. 30, 1981.

Released for Publication Jan. 26, 1982.

[111 MICHAPP 547] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Janice M. Joyce, Asst. Pros. Atty., for the People.

Craig A. Daly, Detroit (Gary Granader, Detroit, of counsel), for defendant on appeal.

Before RILEY, P. J., and CYNAR and GAGE, ^* JJ.

CYNAR, Judge.

Defendant was convicted by a jury of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, was sentenced to serve from 20 to 30 years in prison and appealed. In our initial decision released on August 11, 1981, and unreported, we held that there was insufficient evidence of a dangerous weapon as defined in the armed-robbery statute. The prosecutor's subsequent motion for rehearing was granted. After careful reconsideration of the issue we conclude that our prior decision in this matter was in error.

A brief statement of the facts is in order. On June 17, 1979, complainant and her husband were walking to church when they were approached from behind by the defendant and his accomplice and were pushed to the ground. Defendant's accomplice hit complainant's husband with a three-[111 MICHAPP 548] foot-long stick while defendant grabbed complainant's purse. Defendant and his accomplice then ran off and were eventually caught and arrested by an off-duty police officer who witnessed the incident.

According to the testimony during trial the complainant did not see the accomplice hit her husband with the stick and, in fact, did not see a stick. While on the ground she turned around and observed two men running away from her very quickly. There was no evidence presented that complainant was hit with a stick either by defendant or his accomplice. It was stipulated that complainant's husband was unable to testify during trial because of a mental condition which predated the incident.

The armed-robbery statute provides:

"Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years imprisonment in the state prison," M.C.L. § 750.529; M.S.A. § 28.797.

The portion of the statute in question is that part which states " * * * such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon * * * " M.C.L. § 750.529; M.S.A. § 28.797.

Defendant argues that a stick is not, in and of [111 MICHAPP 549] itself, a dangerous weapon and therefore falls within the armed-robbery statute, if at all, only when "used * * * in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon". Since the complainant never saw the stick, the argument goes, she could not have been led to reasonably believe it to be a dangerous weapon.

Perhaps if defendant's basic premise were correct the argument might be viable. However, we cannot agree with the premise that a stick is not a dangerous weapon.

In People v. Goolsby, 284 Mich. 375, 378, 279 N.W. 867 (1938), the Court defined the term "dangerous weapon" as follows:

"Some weapons carry their dangerous character because so designed and are, when employed, per se, deadly, while other instrumentalities are not dangerous weapons unless turned to such purpose. The test as to the latter is whether the instrumentality was used as a weapon and, when so employed in an assault, dangerous. The character of a dangerous weapon attaches by adoption when the instrumentality is applied to use against another in furtherance of an assault. When the purpose is evidenced by act, and the instrumentality is adapted to accomplishment of the assault and capable of inflicting serious injury, then it is, when so employed, a dangerous weapon."

Goolsby involved the felonious assault statute, M.C.L. § 750.82; M.S.A. § 28.277, and the application of that statute's use of "dangerous weapon" to a charge involving the use of an automobile. The Court held that an automobile fell within the definition of a "dangerous weapon". In People v. Hale, 96 Mich.App. 343, 292 N.W.2d 204 (1980), vacated on other grounds, 409 Mich. 937, 298 N.W.2d 421 (1980), it was held that a shoe could supply the [111 MICHAPP 550] dangerous weapon element of felonious assault. Likewise, in People v. Knapp, 34 Mich.App. 325, 334, 191 N.W.2d 155 (1971), the Court answered the claim that a broomstick was not a dangerous weapon with the following statement:

"We point out that, before the discovery of guns and gunpowder, man had had a long history of inflicting mortal wounds with but a slender shaft propelled by hand."

Turning specifically to application of the armed-robbery statute, it was held in People v. Williams, 1 Mich.App. 441, 136 N.W.2d 774 (1965), lv. den. 377 Mich. 705 (1966), that the trial court's determination that defendant used a dangerous weapon, to wit: a bottle, was a finding of fact under the statute. In People v. Winfield, 39 Mich.App. 281, 197 N.W.2d 541 (1972), lv. den. 389 Mich. 766 (1973), the Court held that a bottle used to hit the victim over the head could fit the Goolsby definition of dangerous weapon. With these cases as precedent, we cannot say that a stick is not a dangerous weapon as a matter of law. Whether or not it is one in a particular case is a question of fact for the jury.

Moreover, a finding that an article is a dangerous weapon is not dependent upon the victim's reasonable belief that it is such. In Winfield, supra, the Court rejected the defendant's claim that, because there was no testimony that the victim saw a knife, a directed verdict on the charge of armed robbery should have been granted. The Court found that the testimony of a witness other than the victim provided ample evidence that an armed robbery with a knife occurred. In People v. Parker (On Rehearing ), 100 Mich.App. 406, 299 N.W.2d 56 (1980), the Court again rejected the [111 MICHAPP 551] argument that...