Opinion
Docket No. 77-2890.
Decided February 21, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Robert T. Monk, Assistant Prosecuting Attorney, for the people.
Gerald S. Surowiec, for defendant on appeal.
Before: M.F. CAVANAGH, P.J., and BASHARA and ALLEN, JJ.
Defendant was found guilty in a bench trial of possession of a gas-ejecting device, contrary to MCL 750.224; MSA 28.421, and appeals.
The testimony adduced at trial established that defendant had in his possession a canister which he removed from his car and placed in the street. A Detroit police officer observed defendant's actions and retrieved the can. A police chemist testified that the canister contained "Paralyzer" CS military tear gas. The term "weapon" appeared on the canister.
Defendant first argues that the statute is unconstitutional for the reason that it is overly broad and vague. He contends that many innocuous products are within its scope and that it fails to designate those substances which are proscribed.
This Court has recently reviewed the statute in question. In People v Guy, 84 Mich. App. 610; 270 N.W.2d 662 (1978), a majority of the panel concurred with the argument advanced by defendant in the case at bar. However, we unanimously adopt the reasoning of the dissenting opinion of Judge M.F. CAVANAGH. That opinion held that while the statute's sweeping language opened it to attack, when its proscription was limited to possession of gas ejecting weapons, certainty and constitutionality was established.
Defendant also contends that the prosecution's failure to prove that he was not licensed to possess a gas-ejecting device requires reversal of the conviction. Defendant failed to bring this issue to the attention of the trial court. Absent manifest injustice, matters unobjected to at the trial level are not preserved for review. People v Carroll, 396 Mich. 408; 240 N.W.2d 722 (1976), People v Atsilis, 60 Mich. App. 738; 231 N.W.2d 534 (1975). While the question might be arguable, the analogy of the facts in this case to those in People v Henderson, 391 Mich. 612; 218 N.W.2d 2 (1974), convinces us that no manifest injustice occurred.
Defendant's remaining allegations of error are without merit.
Affirmed.