Defendant was convicted of carrying a concealed weapon, MCL 750.227; MSA 28.424, and of being an habitual offender, fourth offense, MCL 769.12; MSA 28.1084. He was sentenced to four to ten years’ imprisonment and now appeals as of right. We affirm.
Police officers approached a house to arrest the *457 defendant on an outstanding misdemeanor bench warrant. As they arrived, defendant was standing outside in an area of the driveway between the public sidewalk and the public street. One defense witness said the defendant was standing on the curb by the street. As the police stopped, defendant removed a handgun from his belt and threw the gun under a bush as he fled up the driveway and into the backyard.
The property on which defendant was arrested was owned by his mother, although she resided elsewhere. Defendant’s mother testified that the defendant had stayed periodically at the property where he was arrested while he assisted in remodeling that property for rental use. The mother also testified that the defendant generally lived with his grandmother on another street. The parties were prepared to stipulate that the defendant consistently used the grandmother’s address as his official mailing address, but the stipulation was not read to the jury because of the court’s ruling that the defendant was not entitled to the jury instruction he requested.
I. POSSESSORY INTEREST EXCEPTION
Defendant first argues that the jury should have been instructed that a person is entitled to carry a concealed weapon on property in which he has a possessory interest consistent with MCL 750.227(2); MSA 28.424(2). 1 The trial court ruled that an unspecified federal law barred defendant, as a *458 convicted felon, from carrying a firearm of any kind and that the federal law preempted state law.
Defendant argues that even if he were subject to federal prosecution for possessing a weapon, he is exempt from
state
prosecution because our statute "allow[s] persons to defend those areas in which they have a possessory interest.”
People v Clark,
The prosecutor presented no proof to counter the defense witnesses’ testimony that the defendant resided in the house while repairing it, and the trial court never reached the issue whether *459 the defendant had a sufficient possessory interest. We need not reach that question (which may properly be a factual issue for the jury), though, because defendant was not entitled to the instruction as a matter of law even if he had a possessory interest in the property.
A. CONVICTED FELON IN POSSESSION
The first circumstance that leads to our conclusion is defendant’s status as a convicted felon (and current parolee). We find no persuasive evidence that the Legislature intended that recently released convicted felons should be able to carry concealed weapons so that they might defend property because Michigan law presumes that parolees and guns are per se a dangerous combination.
At the time of this offense, MCL 28.422; MSA 28.92 provided that "no person shall purchase, carry or transport a pistol without first having obtained a license therefor as prescribed herein.” See
When this section is read together with MCL 750.227; MSA 28.424, we believe the Legislature intended MCL 750.227; MSA 28.424 to allow a person to conceal an otherwise lawful firearm to defend his property. MCL 750.227; MSA 28.424, however, does not allow one to carry or possess a prohibited weapon. 4 The statute presumes that the *460 weapon is lawfully owned, and only addresses its concealment. It does not extend a right to conceal an illegally owned weapon, even in one’s own dwelling house or business property.
By analogy, we do not think the Legislature would have intended to allow a shopkeeper to own a machine gun for use in defending the shop (machine guns are prohibited by MCL 750.224; MSA 28.421). The illegal possession is not saved by the fact that the machine gun is kept in the shopkeeper’s store; the Legislature has chosen to prohibit that class of weapons without regard to where they are used. Similarly, the Legislature has chosen to prohibit pistol ownership by a particular class of persons — convicted felons — and the convicted felon’s decision to keep the pistol on his residential or business property should not alter the outcome.
This Court’s decision in
People v Gatt,
B. SCOPE OF POSSESSORY INTEREST IN PROPERTY
More important to our conclusion is the second circumstance: defendant carried the concealed weapon on the public easement and public side *461 walks. This again involves an issue of first impression in Michigan, but we hold that the Legislature did not intend the exceptions to extend to areas the defendant has no need or right to defend.
Other jurisdictions are split regarding the issue whether a defendant is exempt from prosecution when carrying a weapon on a public road or sidewalk that adjoins or divides his property. See anno: Scope and effect of exception, in statute forbidding carrying of weapons, as to person on his own premises or at his place of business, 57 ALR3d 938, § 5. Some courts have held that such a defendant is not on his own premises so as to be exempt from prosecution. The rationale is that
[t]he easement which the public has in the highway is superior to any rights which the owner of the fee has. He can do nothing, by virtue of his ownership of the fee in the soil, antagonistic to the right of the public to use the highway as such. The public is in possession of the highway and has the right to pass to and fro upon it ad libitum. This right is to be enjoyed by the public without interruption or molestation in any manner from the owner of the freehold.
. . . [T]he pólicy of [the] law is to conserve the public peace. In what more important place can this to be done than upon the public roads and streets which are set apart to the public and must be used by it? [Moss v Arkansas,65 Ark 368 , 369-370;45 SW 987 (1898).]
See also
Facion v State,
290 So 2d 75 (Fla App, 1974) (the defendant had no right to carry concealed pistol on sidewalk outside his apartment);
Roy v State,
One jurisdiction gave a defendant the benefit of the exemption when he was found carrying a pistol on a road that ran over his father’s land and divided the family property:
The fact that a public road is laid off on a man’s land does not deprive him of the freehold of the land covered by the road. His title continues in the soil, and the public acquire only an easement, that is, the right of passing and repassing along it. [North Carolina v Hewell, 90 NC 705, 706 (1884) (citations omitted).]
A third line of cases from Texas takes a middle approach, and allows a person to carry a weapon on public roadways or easements adjoining the person’s property if the person possesses the weapon for otherwise lawful purposes. See
Johnson v State,
The basic legislative intent behind MCL 750.227; MSA 28.424 is that "weapons should not be carried where they might be used to take lives.”
People v Bailey,
With these intentions in mind, we believe the better rule is the one we stated first: the public has superior rights over public easements and even the owner of the land beneath that easement can do nothing antagonistic to the public’s right. This rule is more consistent with the public policies underlying MCL 750.227; MSA 28.424 and its exceptions, as well as the public policy surrounding the laws of easements and dedications, see
Harvey v Crane,
Moreover, the exceptions to MCL 750.227; MSA 28.424 traditionally have been interpreted narrowly. For example, in
People v Alexander,
We conclude that, even if the defendant had a sufficient possessory interest in his mother’s property, any right he may have had to carry an unlicensed concealed weapon to defend that land did not extend to the public easement adjoining that land. The trial court therefore did not err in refusing to read defendant’s requested instruction to the jury.
II. DOUBLE JEOPARDY
Defendant next argues that his conviction violated the Double Jeopardy Clause, US Const, Am V, 6 because he had been found not guilty of parole violation on the same facts. Thus, we must determine whether an adjudication that a parolee has not violated his parole precludes a criminal prosecution for the same underlying facts.
The Double Jeopardy Clause (as applied to the states through the Fourteenth Amendment,
Ben
*465
ton v Maryland,
Parole revocation is not part of a criminal prosecution.
Morrissey v Brewer,
III. BAD ACTS EVIDENCE
Defendant argues that the prosecutor denied him a fair trial by improperly injecting "bad acts” evidence. The prosecutor had earlier elicited testimony that the arrest was conducted by members of a narcotics enforcement team, including federal narcotics officers, and that the gun was found when a "drug dog” indicated contraband in the bushes. Although the references initially did not link the defendant to any specific drug activity, later testimony elicited by the defense indicated that the defendant had been smoking a marijuana
*466
cigarette shortly before his arrest. The defendant opened the door to the entire line of questioning when he inquired of prospective jurors during voir dire whether they would be affected by testimony that he was smoking marijuana. Reversal is not required.
People v Yarger,
Defendant has preserved only one additional instance of alleged misconduct by the prosecutor: the prosecutor’s reference during closing argument to the fact that the defendant had requested a jury instruction regarding a lesser included offense. Although that argument is regrettable, it is not of such magnitude that it denied defendant a fair trial.
People v Foster,
Affirmed.
Notes
The statute states:
A person shall not carry a pistol concealed on or about his person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law and if licensed, shall not carry the pistol in a place or manner *458 inconsistent with any restrictions upon such license. [Emphasis added.]
Defendant sought the following instruction:
This law does not apply to a person who carries a pistol in his home, place of business, or on other land he possesses. The prosecutor has the burden of proving beyond a reasonable doubt that the defendant was carrying the pistol outside of his own home or place of business or off other land he possessed. [CJI2d 11.11.]
The statute likely was 18 USC 922(g)(1), which prohibits any convicted felon from receiving a firearm or ammunition that has been shipped across state lines.
The prohibition on purchasing, carrying, or transporting a pistol without a license has been interpreted to include a limitation on the
*460
right to "possess” a pistol.
Lyons v United States,
These cases differ from the Texas cases cited supra because these cases involve public roads adjacent to property owned by the defendant. The cases discussed earlier involved claims that drivers could carry weapons in their business vehicles on any public road along their service routes.
The Fifth Amendment provides, in part: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”