Opinion
Docket No. 28377.
Decided September 20, 1977. Leave to appeal applied for.
Appeal from Wayne, George T. Martin, J. Submitted June 22, 1977, at Detroit. (Docket No. 28377.) Decided September 20, 1977. Leave to appeal applied for.
Tommy J. Brown was convicted of carrying a dangerous weapon in a motor vehicle. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Maura D. Corrigan, Assistant Prosecuting Attorney, for the people.
Domnick J. Sorise, Assistant State Appellate Defender, for defendant on appeal.
The instant appeal, occasioned by defendant's jury-based conviction for carrying a weapon in a motor vehicle, MCLA 750.227; MSA 28.424, raises inter alia the question whether a machete is a "dangerous weapon" under the cited statute.
In pertinent part, the statute provides: "A person who shall carry a dagger, dirk, stiletto or other dangerous weapon except hunting knives adapted and carried as such, * * * whether concealed or otherwise in any vehicle operated or occupied by him * * * 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." MCLA 750.227; MSA 28.424.
The events prompting defendant's prosecution are undisputed. On August 10, 1975, two police officers, having pulled defendant over for a minor traffic infraction, discovered a rusty, black-handled machete protruding from under the rear of the driver's seat in defendant's car. The machete, although entered as an exhibit at trial, has since been destroyed. We are unaware of its exact dimensions and uncertain whether it was bluntended or pointed.
This is defendant's second trial on the instant charge.
The defendant, aged 18 at the time of trial, testified that he was 14 when he purchased a $1.98 department-store machete as an addition to his knife collection. According to his testimony, defendant used the instrument to throw at trees for sport and to chop tree limbs. On one occasion, he placed the machete in the trunk of his car to transport it to a friend's farm. It remained in the trunk for eight months until defendant used it to shorten a pair of trousers for swimming:
"A. [The Defendant] I went to the beach one day, me and some other guys, and one of my friends didn't have any short pants, so we took the machete and cut off the long pants, to shorts, more or less; ripped them and cut them, because this machete wasn't so sharp.
"Q. [Defense Attorney] After that was done, where did you put the machete?
"A. [The Defendant] Just underneath my front seat."
Apparently, the machete remained under the front seat until its discovery by the police.
During cross-examination, the prosecutor attempted to demonstrate defendant's awareness that a machete is a dangerous weapon. At first, defendant indicated that it never occurred to him that machetes could be used as weapons:
"Q. Did you ever hear about these things being used before as weapons?
"A. No, sir.
"Q. You never did?
"A. Never have.
"Q. What did you think the purpose of these was?
"A. Chopping down trees.
"Q. Did you ever hear about World War II?
"A. No, sir, but I have watched enough movies.
"Q. Did you ever see the Phillippine [sic] movies?
"A. Yes, sir.
"Q. Did you ever see those movies where perhaps —
"MR. FOWLER [DEFENSE ATTORNEY]: Your Honor, I'm going to object. I don't know what is material about the movies he has seen.
"MR. PHILLIPPART [PROSECUTING ATTORNEY]: It's cross examination, your Honor. I think perhaps we can get to the point where he might have known these could be used as a weapon.
"MR. FOWLER: I'm not sure what movies he's talking about. I don't know if he's going to bring movie projectors in here to show the movies. I think we're going far afield.
"THE COURT: Within limits, of course, Mr. Phillippart.
"Q. (By Mr. Phillippart) Did you ever see a machete used in the movies as a weapon?
"A. I never did realize it.
"Q. Never did realize it?
"A. No, I never did really look at the weapons that way.
"Q. Never did?
"A. No. I don't like to see bloody pictures and things like that.
"Q. You never saw Philippinos lob off Japanese heads with a machete?
"A. No, not that kind.
"Q. What kind?
"A. Bigger ones.
"Q. Bigger ones?
"A. Yes.
"Q. In your opinion, do you think this might lob off a head?
"MR. FOWLER: That would call for a conclusion by the witness, your Honor.
"THE COURT: All right.
"Q. (By Mr. Phillippart) In your opinion, do you think this could be used as a weapon?
"A. It could be used as a weapon.
"Q. Is that why you kept it in the trunk of your car for these 8 months?
"A. At the beginning of the 8th month, I put it in my car to go over to a friend's house. I threw it back in the trunk and I didn't realize it was there until one day I remembered.
"Q. But you said you normally carried it in the trunk of your car.
"MR. FOWLER: Objection, that wasn't — he said he had it in the trunk for 8 months, he didn't say he normally had it in the trunk.
"THE COURT: Objection sustained."
On appeal, defendant asserts that under People v Smith, 393 Mich. 432; 225 N.W.2d 165 (1975), only stabbing weapons are proscribed by MCLA 750.227; MSA 28.424; that " a machete does not have a point"; that "[t]he likely result of trying to stab someone with a machete would be the physical alteration of the wielder's hand"; and that, given a machete's ineffectiveness as a stabbing weapon, this Court should quash the information and discharge defendant. He also raises issues regarding the prosecutor's conduct, the charge to the jury and double jeopardy.
(Emphasis added.) Defendant's appellate counsel, who did not represent defendant below, made this statement at oral argument.
In Smith, supra, a prosecution for possession of an M-1 rifle in a motor vehicle, the Supreme Court stated:
"No one suggests that an M-1 rifle is not a dangerous weapon. The question is whether this statute [MCLA 750.227; MSA 28.424] proscribes the carrying of all dangerous weapons or only those of the types specified.
"In construing statutes in an effort to ascertain and give effect to the legislative interest [sic], courts are guided by a rule of construction known as `ejusdem generis'.
"This is a rule whereby in a statute in which general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and construed as restricted by the particular designation and as including only things of the same kind, class, character or nature as those specifically enumerated. See 73 Am Jur 2d, Statutes, § 214, pp 407-408.
"Thus here the phrase `or other dangerous weapon except hunting knives adapted and carried as such' following those specified types of stabbing weapons, under the rule would be limited to stabbing weapons. As to that part of the statute we see no intent to include firearms of any sort in the phrase `other dangerous weapon'." Id., at 436.
This extract represents a departure from the Court's previous interpretation of MCLA 750.227; MSA 28.424. In People v Vaines, 310 Mich. 500; 17 N.W.2d 729 (1945), a case not cited by the Smith Court, Chief Justice STARR, writing for a unanimous Court, opined:
"It is manifest that there are many articles or instruments, other than daggers, dirks and stilettos, which might properly come within the scope of the term `dangerous weapon' if they were used or carried for use as weapons. For example, pocket knives, razors, hammers, hatchets, wrenches, cutting tools, and other articles which are manufactured and generally used for peaceful and proper purposes, would fall within the category of dangerous weapons if used for or carried for the purpose of assault or defense. Whether or not such articles are dangerous weapons, within the meaning of that term as used in section 227 [MCLA 750.227; MSA 28.424], would depend upon the use which the carrier made of them.
* * *
"Daggers, dirks, stilettos, metallic knuckles, slung shots, pistols, and similar articles, designed for the purpose of bodily assault or defense, are generally recognized as dangerous weapons per se. Other articles and instruments become dangerous weapons only when they are used or carried for use as weapons. Therefore, in a prosecution under section 227 it becomes a question of fact for court or jury determination as to whether or not such articles or instruments are used or carried for the purpose of use as weapons of assault or defense. People v Gogak, supra. [ 205 Mich. 260; 171 N.W. 428 (1919)].
"We are convinced that the legislature intended the words `other dangerous weapon,' as used in section 227, to mean any concealed article or instrument which the carrier used, or carried for the purpose of using, as a weapon for bodily assault or defense. The legislature certainly did not intend to include as a dangerous weapon the ordinary type of jackknife commonly carried by many people, unless there was evidence establishing that it was used, or was carried for the purpose of use, as a weapon." Id., at 504-506. (Emphasis supplied.)
While established precedent should not be blithely or impliedly cast aside, we read Smith as nothing less than a sub silentio rejection of the principles espoused in Vaines. That is not to say, however, that the statutory interpretation undertaken in Smith is beyond reproach. See People v Diericks, 60 Mich. App. 603, 604-605; 231 N.W.2d 422 (1975). A tenable construction, we believe, would have been to read the exclusionary language of the statute (" * * * except hunting knives adapted and carried as such") as evincing a legislative intent to punish the possession in a vehicle of any dangerous weapon other than knives adapted and carried for hunting. This interpretation meshes well with the expansive, but unrecognized, language of Vaines, supra, and with the probable legislative design of the statute, namely, preventing the transport in a vehicle, or the concealment on one's person, of weapons that can inflict injury or death on the citizenry. Moreover, this interpretation acknowledges the settled principle that ejusdem generis is but an aid in the elucidation of legislative intent:
Of course, our interpretation should be read in tandem with the rule in Vaines requiring not only possession but also evidence showing the instrument to have been used or carried for use as a weapon of assault or defense.
" [E]jusdem generis is not to be invoked in every case where general words follow (or possibly precede) specific words. For example, it applies only where the specific words relate to subjects of a single kind, class, character, or nature, as noted above. In all events, the rule is useful only for the purpose of aiding the judicial search for the sometimes elusive scrivener's intent. Where the language used, considered in its entirety, discloses no purpose of limiting the general words used, the rule of ejusdem generis may not be invoked to defeat or limit the purpose of the enactment. People v O'Hara, 278 Mich. 281 [ 270 NW 298 (1936)], and Utica State Savings Bank v Village of Oak Park, 279 Mich. 568 [ 273 N.W. 271 (1937)]" In re Mosby, 360 Mich. 186, 192; 103 N.W.2d 462 (1960).
For other Michigan cases to the same effect, see McDade v People, 29 Mich. 50 (1874), People v Gogak, 205 Mich. 260; 171 N.W. 428 (1919), People v Powell, 280 Mich. 699; 274 N.W. 372 (1937), and Utica State Savings Bank v Oak Park, 279 Mich. 568; 273 N.W. 271 (1937).
Accord: Gooch v United States, 297 U.S. 124; 56 S Ct 395; 80 L Ed 522 (1936) and Helvering v Stockholms Enskilda Bank, 293 U.S. 84; 55 S Ct 50; 79 L Ed 211 (1934), two cases declining to apply a narrowing construction under ejusdem generis where the general words, following the specific words in a statute, were themselves followed by an exception.
The Legislature's express mention of an exception for hunting knives would seem to invoke another constructional rule, expressio unius est exclusio alterius. See Stowers v Wolodzko, 386 Mich. 119, 133; 191 N.W.2d 355 (1971), Alan v Wayne County, 388 Mich. 210, 253; 200 N.W.2d 628 (1972), Valenti Homes, Inc v Sterling Heights, 61 Mich. App. 537; 233 N.W.2d 72 (1975).
However, "[p]resuming, as we must, that the Supreme Court's most recent utterance controls the case at bar", Michigan National Bank of Detroit v Holland-Dozier-Holland Sound Studios, 73 Mich. App. 12, 16; 250 N.W.2d 532 (1976), we proceed to apply the law propounded in Smith. Given defendant's admission that he used the machete to throw at trees, we strongly suspect the instrument was pointed and thus functional as a stabbing weapon. Hence, Smith would proscribe its possession in a vehicle. Accordingly, we hold that a machete, capable of inflicting stab wounds, is a "dangerous weapon" proscribed by MCLA 750.227; MSA 27.424. But this holding, of course, does not preclude defendant from demonstrating to the court below that the machete was in fact bluntended and thus useless as a stabbing weapon.
Defendant next contends that the prosecution presented insufficient evidence establishing that defendant "had used [the machete], or was carrying it for use, as a weapon of assault or defense". Vaines, supra, at 506. Although we are inclined to side with defendant on this issue, we are compelled to reject the contention based on the contrary suggestion in Smith. There the Court in comparing the intent requirement of MCLA 750.227 with that of "an earlier section in the same act [i.e., 1931 PA 328, § 226]" observed:
"The greater difficulty in prosecuting crimes proscribed under MCLA 750.226 which does require proof of `intent to use the [weapon] unlawfully' in order to support a conviction does not, of course, escape us. It appears, however, that the Legislature was cognizant of the fact that to hold that rifles are included within the proscription of MCLA 750.227 would be to subject most weekend hunters, for example, to potential felony prosecution under MCLA 750.227 notwithstanding their lack of intent to unlawfully use their hunting rifles." (Emphasis in original; footnotes omitted.) 393 Mich at 437-438.
The conclusion is thus ineluctable that the Court would affirm a conviction under MCLA 750.227 "notwithstanding [defendant's] * * * lack of intent to unlawfully [e.g., assaultively] use" his machete. Though the wisdom of this construction be doubted, the literal mandate of Smith allows room for no other.
As a third issue, defendant assails the question posed by the trial prosecutor regarding war movies allegedly depicting the decapitation of prisoners. To be sure, the question smacked of the lurid and sensational, and should not have been asked. Still, no one would quibble with the proposition that machetes are capable of considerable mayhem. Indeed, defendant ultimately admitted the machete's potential utility as a dangerous weapon. Under these circumstances, then, we view the prosecutor's question as a misguided, but not improper, area of examination.
"It is unquestioned that the machete is used for both war and peace, it being described in the Century Dictionary as a `heavy knife or cutlass, used among Spanish colonists and Spanish American countries, both as a tool and as a weapon' and by Webster as `a large, heavy knife, resembling a broadsword, often two or three feet in length, used by the inhabitants of Spanish America as a hatchet to cut their way through thickets, and for various other purposes'." Wiborg v United States, 163 U.S. 632, 636; 16 S Ct 1127, 1129; 41 L Ed 289, 291 (1896).
Defendant next attacks the propriety of the trial court's instructions. The issue is without merit. Defendant has failed to show how the instructions, taken in toto, veer from the standard in Smith.
Defendant's final issue, raising a double jeopardy argument, is answered in People v Morris, 69 Mich. App. 545, 553; 245 N.W.2d 126 (1976).
Although we affirm defendant's conviction based on Smith, supra, we do so with trepidation. Our hope is that the Supreme Court will supplant Smith with a reaffirmation of Vaines. Until then, the hapless citizen, brazen enough to carry a steak knife on a weekend picnic, must continue to fear the zealous enforcement of a dubiously analyzed statute.
Affirmed.
P.R. MAHINSKE, J., concurred.
I must respectfully dissent. MCLA 750.227; MSA 28.424 imposes strict liability for the carrying of certain types of specifically proscribed articles. People v Smith, 393 Mich. 432; 225 N.W.2d 165 (1975), recognized that the statute did not include firearms of any sort in the phrase "other dangerous weapon". It was on that basis that the Smith Court excluded the carrying of an M-1 rifle.
The majority seeks to use the dicta in the Smith case to show that even the carrying of a steak knife would be illegal under the statute. However, assuming arguendo that the dicta cited by the majority were binding, a finding must be made that the instrument used was, indeed, a "stabbing weapon".
In the case at bar, the only use made of the machete by the defendant, in the eight months preceding his arrest, was to shorten trousers. Previously he had occasionally used it to chop tree limbs. Under such circumstances, I am inclined to be guided by the decision in People v Vaines, 310 Mich. 500; 17 N.W.2d 729 (1945). That case speaks directly to the issue at hand as the law of the case, and not incidentally, as in Smith, supra. I would reiterate the majority opinion's quote from Vaines:
"We are convinced that the legislature intended the words `other dangerous weapon', as used in section 227, to mean any concealed article or instrument which the carrier used, or carried for the purpose of using, as a weapon for bodily assault or defense. The legislature certainly did not intend to include as a dangerous weapon the ordinary type of jackknife commonly carried by many people, unless there was evidence establishing that it was used, or was carried for the purpose of use, as a weapon." Id, at 506. (Emphasis added.)
I would, therefore, reverse and remand for a new trial. I would also suggest that the trial judge instruct the jury to the effect that unless the weapon used was specifically referred to in the statute, the jury must find that the defendant intended to use it as a weapon.