People v. Smith, Docket No. 7608

• Decision Date: 06 February 1970
• Docket Number: Docket No. 7608,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome I. SMITH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 430

176 N.W.2d 430

21 Mich.App. 717

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerome I. SMITH, Defendant-Appellant.

Docket No. 7608.

Court of Appeals of Michigan, Division No. 1.

Feb. 6, 1970.

Released for Publication May 1, 1970.

Robert H. Lorion, Livonia, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief Appellate Div., William B. McIntyre, Jr., Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and FITZGERALD and McGREGOR, JJ.

FITZGERALD, Judge.

Defendant Jerome I. Smith was tried by a jury in recorder's court of Detroit and found guilty of carrying a concealed weapon without a license. ¹ Smith was sentenced to serve three to five years in prison and has appealed.

Smith was tried with a codefendant, Willie Kirksey. The prosecution presented evidence that at approximately 8:40 p.m. on January 11, 1968, police observed a white 1962 Oldsmobile make an illegal left turn at E. Outer Drive and Seven Mile road in Detroit. The officer ordered the car to stop and approached the driver's side, while his partner proceeded toward the passenger side of the car.

The officer observed a shoulder holster strap on the person of the front seat passenger, Ronnie Ingram, and commanded the passengers to leave the car. A search of the car and passengers revealed that the driver of the car, Willie Kirksey, had a loaded .32 automatic pistol in his jacket pocket. A loaded sawed-off .22 rifle and a machete were found under the front seat. Defendant Jerome Smith was seated in the back seat and no weapons were found on his person.

Willie Kirksey took the stand and testified that his friend, Jerome Smith, requested a ride for himself and Ronnie Ingram to the E. Outer Drive and Seven Mile road area. Kirksey maintained that when they arrived at Outer Drive, he left his jacket in the car and went in a drug store for some cigarettes. When he returned, and started driving, his car was stopped by the police. He denied all knowledge of the existence of the .32 automatic in his pocket. The car was owned by Kirksey's stepfather and always contained the machete which was used for fish cleaning.

Ronnie Ingram testified that he did not know Kirksey before January 11, 1968. He supported Kirksey's story that Kirksey went to buy cigarettes, and said that at that time he went to the car of Frank Dollars and bought three guns. Ingram maintained that neither Kirksey nor Smith knew of the purpose of the meeting with Dollars. Ingram stated that he hid the .32 automatic pistol in Kirksey's coat pocket and concealed the other weapons in the car.

Police Detective Dennis Darin took the stand and introduced a statement made by Ronnie Ingram after he was incarcerated. The statement reads as follows:

'On January 11, 1968, at 8:00 or 8:30 p.m., Willie Kirksey picked me up at my home. We drove over to the other boy's house and picked him up, the guy we are locked up with, Jerome Smith. Willie was driving. I was sitting in the right front seat with Jerome Smith in the back. I drove (sic) Willie to drive me to 7 Mile and Outer Drive, East Outer Drive, where I was going to meet a Larry Dyer, a white male, about 31, who works in the apartment 9740 Chrysler's Mack Avenue and buy some guns from him. We drove to 7 Mile and East Outer Drive and parked in the parking lot. Larry was waiting for us and came over and got into our car, in the back, next to Jerome Smith. He pulled guns, two hand guns out of his trousers and a sawed-off rifle out of his coat. He offered to sell me one of the hand guns for $50. I told him I wanted to try them out so he gave me a shoulder holster to carry. Willie took the other gun and the rifle was left in the back seat with Jerome Smith. We were going to go to my house to try these guns out when we were stopped by the police. I think Larry was going to follow us in his car. I don't know what happened to him.'

And this was signed, 'Ronnie Ingram.' Ingram, however, denied making this statement.

The jury found both defendants guilty as charged.

On appeal, defendant Smith asks whether the prosecution proved beyond a reasonable doubt all of the elements of M.C.L.A. § 750.227 (Stat.Ann.1962 Rev. § 28.424).

The statute involved reads as follows:

'Sec. 227. Carrying concealed weapons

Any person who shall carry a dagger, 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 (five) 5 years, or by fine of not more than (two thousand five hundred) 2,500 dollars.'

The question of the interpretation of this statute, especially as it pertains to the carrying of weapons in cars, has appeared recently many times. The essential issue posed by most of these appeals is whether knowledge and participation are required in order to convict under the statute, or whether mere presence in a car with an unlicensed weapon violates the statute.

The prosecution argues that since knowledge is not mentioned in the statute, none is required to find a defendant guilty. In People v. Williamson (1918), 200 Mich. 342, 346, 166 N.W. 917, 918, the Court stated the following:

'While there is a diversity of holdings in the different states, depending largely upon varying local statutes, the great weight of authority is to the effect that the intent, or purpose with which the weapon is carried is not an element of the statutory offense. Of course, if the weapon was carried upon his person through restraint or ignorance, that would be a good defense to the prosecution. But nothing of that kind is claimed in the instant case. The following cited cases are in point upon this question: State v. Williams (1886), 70 Iowa 52, 29 N.W. 801; Walls v. State (1845), 7 Blackf. (Ind.) 572; Ridenour v. State (1879), 65 Ind. 411; Cutsinger v. Commonwealth (1890), (70 Ky.) 7 Bush 392; Strahan v. State (1890), 68 Miss. 347, 8 So. 844.'

Later the Court commented that 'We agree with counsel that concealment implies an assent of mind and purpose, but the word is not a technical one' at page 349, 166 N.W. at page 919.

In 1940, People v. Moceri (1940), 294 Mich. 483, 293 N.W. 727, was decided in a manner which seemed to eliminate the need for knowledge. Defendant Moceri was arrested as he was entering a car which had a pistol on the floor. Moceri was convicted of carrying a concealed weapon. He appealed, arguing that his conviction was against the great weight of the evidence. The Court held that 'The testimony has been examined and the conviction is not against the great weight of the evidence.' At page 485, 293 N.W. at page 728.

The Moceri decision was distinguished in People v. Petro (1955), 342 Mich. 299, 70 N.W.2d 69. In Petro, a gun was found in a secret compartment of a car. Defendant was convicted of carrying a concealed weapon. On appeal, his conviction was reversed. The Court reasoned that the concealed weapons statute contained no statutory presumption as to knowledge that guns were present in a car. The Court found that it was impermissible to pyramid inferences upon inferences. (pp. 307, 308, 70 N.W.2d 69) In other words, the jury in Petro had to infer: (a) that defendants knew of the secret compartment, and from this inference it had to infer (b) that defendants knew that guns were in this compartment.

The Court proceeded to deal with the Moceri case:

'It is the duty of courts to reverse criminal convictions based upon an inference upon an inference in the absence of a statutory presumption. My brother relies on People v. Moceri (1940), 294 Mich. 483, 293 N.W. 727, to affirm the conviction. In that case the police officers found a revolver on the floor of the automobile occupied by the defendant. That was an established fact. There was an inference from such fact that defendant had knowledge of the presence of the revolver.' (At page 308, 70 N.W.2d at page 71.)

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 'car...