People v. Smith

• Decision Date: 26 September 1973
• Docket Number: Docket No. 13636,No. 1,1
• Citation: 49 Mich.App. 630,212 N.W.2d 768
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Early SMITH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 768

212 N.W.2d 768

49 Mich.App. 630

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Early SMITH, Defendant-Appellant.

Docket No. 13636.

Court of Appeals of Michigan, Division No. 1.

Sept. 26, 1973.

Released for Publication Dec. 14, 1973.

Laurence C. Burgess, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Div., Thomas M. Khalil, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and LEVIN and O'HARA,* JJ.

V. J. BRENNAN, Presiding Judge.

Judge Levin in his dissent, we believe, has set up a standard which encompasses all gun-in-car cases and because of that reasoning it seems every situation where guns are found under the seat or on the floor and nobody claims them (and why should they) will require dismissal. And this standard we cannot agree to. The defendant, Robert Early Smith, and three other persons were charged with committing the offense of carrying a concealed weapon in a motor vehicle. M.C.L.A. § 750.227; M.S.A. § 28.424. After the preliminary examination, the defendants including Smith were bound over for trial. Motions to quash the information were denied. Smith was granted leave to take an interlocutory appeal.

Detroit police officer Ward, the principal witness at the examination, testified that he and his partner observed a Ford Econoline van, in which Smith was a passenger, make several erratic U-turns in front of traffic. The four defendants were placed under arrest after officer Ward saw through the right window what he believed to be the stock of a rifle, opened the door, and grabbed an M--1 rifle from underneath the second seat. The defendants had not moved when the officers approached.

The van had three seats. Codefendant Gaut was driving. Codefendant Turner was seated next to him in the right front passenger seat. Codefendant Williams was occupying the second seat alone. The gun was on the floor in front of the second seat between the seat and Williams' legs. Defendant Smith was stretched out on the third seat with his feet up on the seat.

A cartridge belt and clips containing ammunition were found in the front seat between codefendants Gaut and Turner.

The first question is whether, under the concealed weapons statute, Supra, this defendant's presence in this vehicle under these circumstances constitutes sufficient evidence to bind him over for trial. The relevant statute provides:

'Sec. 5. If it shall appear that an Offense not cognizable by a justice of the peace Has been committed, and that there Is probable cause to believe the prisoner guilty thereof, and if the offense be bailable by the magistrate, and the prisoner offer sufficient bail, it shall be taken and the prisoner discharged; but if no sufficient bail be offered, or the offense be not bailable by the magistrate, the prisoner shall be committed to jail for trial.' (Emphasis supplied.) M.C.L.A. § 766.5; M.S.A. § 28.923.

At this stage, the people must first Establish each element, not Prove each beyond a reasonable doubt. In order for the examining magistrate to reach that conclusion, he must necessarily have proof before him of all of the elements of the offense. That is plain on the face of the statute. A holding to that effect should be based on the statute, not on the cases cited in Judge Levin's dissent. People v. Randall, 42 Mich.App. 187, 201 N.W.2d 292 (1972), does make such a holding, but the cases it is based on (People v. Kelsch, 16 Mich.App. 244, 167 N.W.2d 777 (1969), and People v. Barron, 381 Mich. 421, 163 N.W.2d 219 (1968)) both deal with a defendant's challenge to the sufficiency of the evidence to Convict, not to bind over. People v. Bellanca, 386 Mich. 708, 194 N.W.2d 863 (1972), just reiterates the statutory standard.

Assuming for the moment that the rifle falls within the meaning of the statute, it is clear that Someone was carrying it in violation of the statute. There is abundant authority that we review the examining magistrate only for abuse of discretion, People v. Paille #2, 383 Mich. 621, 178 N.W.2d 465 (1970). We find no such abuse here. The standard of proof for binding over isn't as high as conviction, People v. O'Leary, 6 Mich.App. 115, 148 N.W.2d 516 (1967). In Paille #2, supra, 383 Mich. at 626, 178 N.W.2d at 467, the Court defined probable cause as follows:

'In People v. Dellabonda (1933), 265 Mich. 486, at page 490, 251 N.W. 594, at page 595, the Court stated:

"To authorize the examining magistrate to bind appellant over for trial there must have been good reason to believe appellant guilty of the crime charged. Some cases hold a Prima facie case against the accused must be made out. This court has not defined what constitutes probable cause, leaving each case to be determined upon its facts. Bouvier defines probable cause as, 'A reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that a person accused is guilty of the offense with which he is charged.' 3 Bouvier's Law Dictionary (Rawle's 3d Rev.), p. 2728." (Emphasis added.)

Thus, on this point we disagree with Judge Levin on the facts. An M--1 is not an inconspicuous article; it's 43 inches long, and, since it's an infantry weapon, quite heavy, so that it could also be used as a club. It was found partially under the second seat, and defendant was lying on the third seat. While, if he were especially non-observant, he could have missed it, it strains the imagination. That strained imagination should leave little doubt that the magistrate did not abuse his discretion. We should, however, be careful to say that this isn't enough to convict--a strained imagination still leaves room for reasonable doubt.

Is a 43-inch M--1 a 'dangerous weapon' within the meaning of M.C.L.A. § 750.227, M.S.A. § 28.424, which provides as follows:

'Sec. 227. Carrying concealed weapons--Any person who shall carry a danger, dirk, stiletto or Other dangerous weapon except hunting knives adapted and carried as such, concealed on or about his person, or whether concealed or otherwise in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him; and any person who shall carry a pistol concealed on or about his person, or, whether concealed or otherwise, in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to so carry said pistol as provided by law, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than 2,500 dollars.' (Emphasis added.)

We can, if we choose, dive into the statute and examine it piece by piece making cross references to not only statutes but to statute-interpreting cases. However, we choose not to do so because we have no doubt that the Legislature, when they said 'dangerous weapon', in fact meant dangerous weapon; and we have no difficulty at all placing M--1 rifles in the dangerous weapon category.

We affirm and remand to the trial court for trial.

LEVIN, Judge (dissenting).

The question is whether, under the concealed weapons statute, mere presence in a vehicle containing a concealed weapon is sufficient to warrant probable belief that the person present has violated the statute.

The people rely on the rule that an appellate court will not set aside findings of an examining magistrate unless there was a 'clear abuse' of discretion. People v. Dellabonda, 265 Mich. 486, 491, 251 N.W. 594, 595 (1933); People v. Medley, 339 Mich. 486, 491, 64 N.W.2d 708, 711 (1954). (See fn. 2.)

At the preliminary examination the people must establish (1) that the offense charged was committed, and (2) that there is probable cause to believe the defendant committed it. People v. Asta, 337 Mich. 590, 609, 60 N.W.2d 472, 482 (1953); People v. Ray, 2 Mich.App. 623, 627, 141 N.W.2d 320, 322 (1966). All the essential elements of the offense must be established. People v. Randall, 42 Mich.App. 187, 190, 201 N.W.2d 292, 294 (1972). Cf. People v. Bellanca, 386 Mich. 708, 712, 194 N.W.2d 863, 864 (1972).

Knowledge is an element of the offense of carrying a concealed weapon. People v. Petro, 342 Mich. 299, 306, 70 N.W.2d 69, 70 (1955); People v. Smith, 21 Mich.App. 717, 176 N.W.2d 430 (1970). I am willing to assume with my colleagues that the evidence permits the inference that Smith had knowledge of the presence of the rifle. ¹ I do not agree that it follows that there was sufficient evidence of Smith's probable involvement in the 'carrying' of the weapon--an essential element of the crime. ²

In People v. Smith, Supra, p. 722, 176 N.W.2d at 433, another panel of this Court defined the concept of 'carrying' a concealed weapon in an automobile:

'The concealed weapons statute does not punish presence in a car where a pistol is found. The statute's thrust is 'carrying concealed weapons without a license'. In other words, the point of the statute is to punish 'carrying'. Thus, to convict one who is merely present in a car necessarily rests upon two inferences: (a) an inference that he knows a pistol is present; and (b) an inference that he is carrying the pistol. Therefore, even by showing that someone knew a pistol was present should not lead Automatically to a conclusion that he was 'carrying' the pistol.' (Emphasis by the Court.)

If the mere presence of the accused person in an automobile, along with evidence that he had discovered that others in the automobile were carrying a concealed weapon, were sufficient to infer his participation in the commission of that offense, then an unwitting person, unaware of the criminal purpose of another passenger to carry a concealed weapon, who, while riding in the automobile, espies a weapon, would be guilty of a felony unless he protests and asks...