*1 PEOPLE STEVENS at Lansing. 1979, 6, No. March Docket 78-1700. Submitted Decided September applied for. to 1979. Leave Stevens, charged Defendant, Rodney as- W. felonious pistol allegedly pointed a at another. It is He had starter sault. firing pin undisputed pistol had and been filed Court, firing Circuit Charles a bullet. Jackson Fahalee, J., charge, ruling inoperable J. dismissed pistol “dangerous weapon” a was not under appeal. people assault statute. Held: perceives handgun object a and victim an such aIf as dangerous weapon, object prima be to a a believes facie made out. is case assault felonious Reversed, J., He would instru- M. dissented. hold F. an and, firing mentality incapable projectile not is a firearm therefore, weapon” "dangerous under the felonious cannot be statute, perception. regardless of He would victim’s assault affirm. Opinion of the Court — Battery Phrases. Words 1. Assault and and simple A is either an commit criminal assault battery or an act which another in reasonable unlawful battery. receiving an immediate apprehension — Battery Felonious and Assault. Assault 2. where a prima out A facie assault is made gun perceives object it be a such believes as and victim weapon; dangerous operable is or whether the gun irrelevant.
[1] [2-4] Attempt Fact assault. Am Am Jur Jur to commit 79 ALR2d 1415. 2d, 2d, References Assault Assault unloaded assault and and for Battery as criminal Battery Points affecting §§ §§ in Headnotes 2-7. offense. 48-54. criminal ALR2d responsibility for 597. Opinion op the Court Dissent Battery —
3. Assault and Felonious Assault. The crime of felonious is established of an plus the use of a *2 Battery Dangerous — — 4. Assault Assault and Felonious Weapon — — Firearm Statutes. instrumentality propelling An which projectile "dangerous weapon” cannot be a "ñrearm” or a (MCL contemplated 8.3t, 28.277). 2.212[20], Kelley, Attorney Frank General, J. Robert A. Derengoski, General, Grant, Solicitor J. Edward Prosecuting Attorney, Wildeboer, John and L. As- Prosecuting Attorney, people. sistant for the Engle Gentner), (by Jacobs & J. Frederick for defendant. Cavanagh, P.J.,
Before: M. F. and Bashara and D. E. JJ. Holbrook, Jr., majority panel accepts J. of this
Bashara, findings Cavanagh. Judge the factual in his conclusion that We differ pointing inopera- of an handgun ble loaded live shells at the com- plaining witness does amount not to felonious assault. applicable by Judge statute, also set forth provides who assaults an- gun, intending
other with a without to commit great bodily guilty agree felony. harm, is of a We strictly that the statute should be construed. How- plain ever, it is difficult to traverse around its meaning. speaks gun, When the statute of a it does operability. not caliber, refer to its to its nor required accept We are definition Sanford, term "assault” set forth in Opinion M.F. Dissenting Supreme 460, 479; unanimously that: declared Court there (2d ed), p on Criminal Law adopt "We what Perkins rule, simple crimi- majority namely 'a says is the either an "is made out from nal assault an act which battery or unlawful commit a receiving apprehension in reasonable another battery” ’.” immediate subjective test of assault This is the traditional mind, of the vicitm to deter- examines
which individual had reasonable mine whether impending battery. apprehension of an say not committed be- To that an assault was operable weapon involved was cause object perceives an mark. If victim misses the object handgun to be a and such as a dangerous weapon, believes prima facie case of then *3 People Williams, made out. felonious assault is Mich App 412; 149 NW2d case, trial was the of this the court Given facts charge dismissing prior trial. in the to in error Reversed. J.,
D. E. concurred. Jr., Holbrook, (dissentingl charge A M. F. P.J. brought against the defen- assault was felonious arising defendant, as from an incident where dant pistol passenger pointed car, at in a starter making initially occupants the of another car after gestures towards and verbal comments obscene responses. prompting The stat- them and similar charged, MCL defendant was ute under which danger- required 28.277, 750.82; the use of a weapon trial, the trial in assault. Prior to the ous quash granted the motion to defendant’s court Dissenting Opinion information upon parties’ stipulation based the the was totally inoperable involved as a firearm. from people subsequent the order of dismissal. stipulation incorporated findings below the police expert ballistics indicated that
weapon pistol was with a barrel starter had out, it bored contained eight been live .22- firing pin caliber shells but its had been filed point down to the where it be impossible would fire
The trial upon court relied the definition of an inoperable given firearm as In- Jury Criminal 17:4:05, to struction hold that one of the elements missing. crime was penal Because a statute involved, the trial court construed strictly it and in a fashion most favorable to It accused. weapon concluded that because the inop- erable, "dangerous it was not a weapon”. Since the requires crime the use of a the trial weapon, court determined the magistrate lower court abused his discretion had in binding the over for trial. I would defendant affirm the trial ruling court. under which was charged defendant
reads follows: "Any person who shall gun, another revolver, knife, pistol, bar, club, iron brass or knuckles dangerous weapon, other intending but without to com- murder, mit the crime of intending and without great murder, inflict bodily harm less than the crime of guilty shall felony.” be of a MCL MSA 28.277. *4 The of crime felonious assault by is established shows assault the plus use of People deadly weapon the perpetrating assault- People 431 M. Dissenting Opinion F. App Johnson, 544; 202 42 Mich NW2d v Richard (1972), Hooper, App People 123; 36 Mich 193 340 v (1971). 203 major people on of the contention simple definitions of a criminal the alternate Supreme v our Court in offered assault (1978), 460; should Sanford, Mich 265 NW2d charge apply to of felonious assault be held Supreme Court held case. in this simple out from ei- criminal "is made of battery or an to commit a unlaw- ther an appre- which another in reasonable ful act receiving battery”. San- an immediate hension people argue supra, ford, that under the 479. The upon definition, focuses the alternative that latter subjective apprehension of victim’s immediate language concerning statutory injury, the relevant dangerous weapon the use of a preted subjectively should be inter- objectively. is, That
as well as long perceived that a firearm was so as the victim being pointed at him it is immaterial inoperable. support totally firearm was To this line reasoning people rely on cases that for two purposes the felonious assault held gun an unloaded is a v (1967), Williams, 412; 149 NW2d People Doud, 120; 223 Mich NW The Williams case resolved that a defendant charged not entitled to directing acquit jury him if an instruction that the involved was found be unloaded. opinion quoted from Doud and offered additional holding. reasons for the Doud The first was that purpose punish those who” "the the statute is to in placed position a victim to be fear cause supra, dangerous weapons”. "by Williams, use of impossibil- 418. the virtual The second reason was *5 432 Mich App 427 Dissenting Opinion Cavanagh, P.J. proving shotgun
ity whether or not the in that loaded at the time of the assault. There is an obvious distinction between an un- loaded firearm and a firearm that is totally inoper- in able the former weapon is capable being fired. The problem concerning evidentiary whether or not a firearm is loaded not present is in this It in both Doud quite case. is also clear that and Williams "danger- instrument used was a weapon”, ous albeit unloaded. statute,
As 8.3t; 2.212(20), defined MCL here the instrumentality employed by defendant a firearm since it of propell- not, ing therefore, projectile, and was weapons enumerated 750.82; assault statute. MCL MSA 28.277. See also MCL MSA 28.419.
Penal
statutes
are
be construed
as
strictly,
well
in a manner
most
favorable to the
Lockhart,
v
accused.
491,
494;
Mich
v
(1928),
People Goulding, 275 Mich
353,
NW
358-359;
(1936), Buford,