Summary
In People v Stevens, 409 Mich 564, 565-567; 297 NW2d 120 (1980), the Supreme Court held that a "totally inoperable" starter pistol does not constitute a dangerous weapon under the felonious assault statute because that instrument did not fit within any of the categories of weapons provided in MCL 750.82(1).
Summary of this case from People v. KennyOpinion
Docket No. 63890.
Decided October 3, 1980.
On application by the defendant for leave to appeal the Supreme Court, in lieu of granting leave to appeal, reversed the judgment of the Court of Appeals and remanded to the circuit court for dismissal of the charge. Rehearing denied December 23, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Chief Appellate Attorney, for the people.
Jacobs Engle (by Frederick J. Gentner) for the defendant.
The question presented by the defendant's application for leave to appeal is whether a totally inoperable pistol can constitute a "dangerous weapon" so as to support a conviction of felonious assault under MCL 750.82; MSA 28.277. We hold that it cannot.
I
The defendant, while a passenger in a car, pointed a starter pistol at the occupants of another vehicle after an exchange of insults. He was charged under MCL 750.82; MSA 28.277:
"Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony."
The defendant moved to quash the information, and the parties stipulated that, for the purposes of the motion, the weapon involved was a starter pistol with the barrel bored out, containing eight live .22 caliber shells, but with the firing pin filed down to the point that it would not be possible to fire the pistol.
The trial judge granted the motion to quash on the ground that since the pistol was inoperable, it was not a "dangerous weapon" within the meaning of the statute.
The Court of Appeals reversed. The majority pointed out that in using the word "gun" the statute does not refer to its caliber or its operability. The majority relied on the definition of "assault" in People v Sanford, 402 Mich. 460, 479; 265 N.W.2d 1 (1978), in which we held that a simple criminal assault consists of either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery. The Court of Appeals said that if the victim perceives an object such as a handgun and believes it to be a dangerous weapon, a prima facie case of felonious assault is made out.
II
We agree with Judge CAVANAGH'S dissenting opinion that more is required. Certainly, under People v Sanford, supra, and People v Joeseype Johnson, 407 Mich. 196; 284 N.W.2d 718 (1979), the victim's reasonable apprehension can establish the element of an assault in a felonious assault prosecution under MCL 750.82; MSA 28.277. However, those cases provide no authority for the conclusion that the victim's apprehension of an object can transform it into a "dangerous weapon".
We note that the Legislature chose not to include language in the felonious assault statute like that found in the armed robbery statute, which permits conviction on the ground that the perpetrator committed the robbery with an "article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon." MCL 750.529; MSA 28.797.
In this case, there is nothing to suggest a basis for concluding that the starter pistol was a "dangerous weapon" other than the theory that it was a "gun, revolver, [or] pistol". While the statutes do not define the terms "gun" or "revolver", we can see no other plausible interpretation of that series of words than that it applies to assaults with firearms. The term "firearm" is defined by law:
That is, there is no claim that the defendant attempted or appeared to use the starter pistol as a striking weapon.
The word "pistol" is defined by several statutes. For example MCL 28.421; MSA 28.91 states:
"As used in this act:
"(a) `Pistol' means any firearm, loaded or unloaded, 30 inches or less in length * * *."
"The word `firearm', except as otherwise specifically defined in the statutes, shall be construed to include any weapon from which a dangerous projectile may be propelled by using explosives, gas or air as a means of propulsion, * * *." MCL 8.3t; MSA 2.212(20).
The starter pistol in this case was not capable of propelling a dangerous projectile, and thus its use in an assault did not violate MCL 750.82; MSA 28.277.
Accordingly, in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgment of the Court of Appeals and remand the case to the circuit court for dismissal of the charge against the defendant.
COLEMAN, C.J., and KAVANAGH, WILLIAMS, LEVIN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred.