People v. Pearce, Docket No. 6427
| Decision Date | 26 November 1969 |
| Docket Number | No. 3,Docket No. 6427,3 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Glenn PEARCE, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Beverly J. Clark, Alpena, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James H. Cook, Pros. Atty., Alcona County, Harrisville, for plaintiff-appellee.
Before R. B. BURNS, P.J., and HOLBROOK and LEVIN, JJ.
The defendant, Glenn Pearce, was charged with the offense of carrying a concealed weapon (M.C.L.A. § 750.227 (Stat.Ann.1962 Rev. § 28.424)) and convicted after a jury trial. He appeals, claiming 4 errors.
Witnesses for the prosecution testified that a farm in Lincoln was under surveillance by the state police on the morning of the day the defendant was arrested. Officers looking through binoculars observed 3 men in an automobile drive by the farm and continue down the road. Somewhat later the men returned and drove up to the barn, parked the car and walked into the barn. A short time thereafter they left the barn, reentered the car and drove back onto the road where the police halted them and placed them under arrest. They were handcuffed and placed in the police car.
The 3 men were subsequently identified as the defendant, his brother Joseph, and Roger Armstrong. One trooper asked the defendant, who owned the car, whether he wanted it towed away or left on the road with the windows rolled up. The defendant requested that the car be abandoned where it was, the windows left as they were and that the trooper remove the keys. As the trooper opened the car door he saw a jacket on the driver's seat; protruding from the pocket of the jacket was the butt of a pistol. Another trooper, who was standing next to the police car containing the men, testified that he overheard the defendant say to one of his companions, 'I hope to God he doesn't find that gun.'
The police confiscated the gun and took the men into custody. The defendant alone was tried for carrying a concealed weapon. The testimony of his witnesses tended to show that the jacket and the gun were owned by his brother. There was no direct evidence connection the defendant with the jacket or gun.
The record shows that out of the jury's presence there was a discussion regarding the circumstances of the arrest. It appears that the defendant and his associates were thought by the police to be involved in cattle rustling. Concern was expressed that placing this evidence before the jury would be prejudicial to the defendant. It was then stipulated that the arrest was lawful and that the prosecutor would not advert to the surrounding circumstances.*
The defendant contends that the trial judge erred when he charged the jury that they could convict the defendant if they found that he and the other men were engaged in a common unlawful enterprise and that it was within the scope of the enterprise for a participant to carry a concealed weapon. The defendant contends that the only evidence from which the jury could have found a common enterprise was the stipulated fact that the defendant and the other men were lawfully arrested at the same time, and that this is legally insufficient to support such a finding. We cannot accept this contention.
It is true that the nature of the joint undertaking upon which the men were engaged immediately preceding their arrest was not evidentially established. The paucity of the People's proof was, however, due to the stipulation previously referred to; that stipulation constituted a declination of further proof of the cause for the arrest. Absent such a stipulation the evidence might well be insufficient to justify an inference that the carrying of a concealed weapon was fairly within the scope of a common enterprise of which the defendant was a member. But, under the circumstances of this case, the defendant having declined more complete proof, the jury could properly be allowed to infer that the men were engaged in...
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People v. Haack
...had a gun, that carrying or using a gun was 'fairly within the scope' of the common unlawful enterprise. See People v. Pearce, 20 Mich.App. 289, 174 N.W.2d 19 (1969); People v. Poplar, 20 Mich.App. 132, 173 N.W.2d 732 (1969).' Guilty Plea Cases, 395 Mich. 96, 130, 235 N.W.2d 132, 145 (1975)......
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Guilty Plea Cases (State Report Title: People v. Nicholson), In re
...had a gun, that carrying or using a gun was 'fairly within the scope' of the common unlawful enterprise. See People v. Pearce, 20 Mich.App. 289, 174 N.W.2d 19 (1969); People v. Poplar, 20 Mich.App. 132, 173 N.W.2d 732 In Dillard, the defendant pled guilty to assault with intent to rob being......
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