People v. Phillips, Docket No. 12794
| Decision Date | 27 October 1972 |
| Docket Number | Docket No. 12794,No. 1,1 |
| Citation | 43 Mich.App. 581,204 N.W.2d 250 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Lewis PHILLIPS, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Michael J. Reilly, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Michael A. Mueller, Asst. Pros. Atty., for plaintiff-appellee.
Before J. H. GILLIS, P.J., and McGREGOR and BRONSON, JJ.
Defendant was tried before a jury on a two-count information, ultimately being found guilty of the first charge, felonious assault, M.C.L.A. § 750.82; M.S.A. § 28.277, and not guilty of the second charge, carrying a dangerous weapon with unlawful intent, M.C.L.A. § 750.226; M.S.A. § 28.423. Both charges arose out of the same set of circumstances. Complainant testified that at 11 p.m. on the evening of Sunday, April 11, 1971, she was in the process of locking her car door when she heard footsteps behind her. She turned around to see a man six feet from her who said, 'Don't scream, you'll be sorry'. He then pulled out a knife, which she testified was over 3 inches in length, and continued walking toward her. She then backed onto the street and screamed. A Detroit police officer testified that prior to the assault he had been keeping the defendant under surveillance. He observed him approach the complainant and extend an object which appeared to be a knife. When complainant screamed, the officer ran to her assistance, whereupon the assailant fled. Defendant was apprehended in the area a short time thereafter. The knife in question was never introduced into evidence, not having been found.
It is defendant's contention on appeal that the two verdicts are inconsistent, I.e., the elements contained in the offense of carrying a dangerous weapon with unlawful intent being encompassed within the charge of felonious assault, an acquittal on the former charge necessitates as a matter of logic an acquittal on the latter. The two pertinent statutes read as follows:
'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 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.A. § 750.82; M.S.A. § 28.277. (Emphasis supplied.)
'Any person who, with intent to use the same unlawfully against the person of another, goes armed with a pistol or other firearm or dagger, dirk, razor, stiletto, or Knife having a blade over 3 inches in length, or any other dangerous or deadly weapon or instrument, 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 dollars.' M.C.L.A. § 750.226; M.S.A. § 28.423. (Emphasis supplied.)
The verdicts on two informations tried together will not be held reversibly inconsistent if, upon a consideration of the facts and circumstances of the case, they can be explained on any rational basis. 16 A.L.R.3d 866, § 5, p. 870. The second count of the information charged that defendant had violated M.C.L.A. § 750.226; M.S.A. § 28.423, prohibiting the carrying of a dangerous weapon with unlawful intent by being armed with and in possession of a knife, having a blade over 3 inches in length.*
The trial judge in his instructions to the jury made...
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