Opinion
Docket No. 78-2640.
Decided October 2, 1979. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Andrea L. Solak, Assistant Prosecuting Attorney, for the people.
Norman R. Robiner, for defendant on appeal.
Defendant was charged with felonious assault, MCL 750.82; MSA 28.277 (count 1), and felony-firearm, MCL 750.227b; MSA 28.424(2) (count 2). The information specifically charged that the firearm and the weapon used in the assault was a handgun. A Recorder's Court jury returned a verdict of guilty of felonious assault and not guilty of felony-firearm. Defendant moved for a judgment n.o.v. on the grounds that the verdicts were inconsistent. The trial judge denied the motion and defendant, after being sentenced to 2 to 4 years in prison, appeals as of right. We reverse.
The complainant testified that on February 8, 1978, she was standing on a Detroit street attempting to catch a cab. She stated that defendant walked up to her, grabbed her arm and put a gun to her stomach. She testified that she knew something about guns and that the gun in question was a revolver. The defendant was arrested shortly thereafter by a plainclothes police officer as defendant was running down the street. No gun was found.
Defendant testified that he was interested in buying some joints. He claimed to have walked by the complainant and asked her what she was selling. When she told him to get away from her he replied, "Oh, bitch, I will kill your ass". He stated that he did not mean it, that he did not touch her, that he was not carrying a gun and that he merely pointed at her while wearing black gloves.
In charging the jury the trial court read the applicable statutes and accurately instructed the jury as to the specific elements of both counts. It defined "gun" as a firearm and defined "firearm" as including any weapon from which a dangerous object may be shot or propelled by the use of explosives, gas or air. The court further instructed the jury that a gun is a firearm and that a firearm does not include smooth bore rifles or handguns designed and manufactured exclusively for shooting BB's not exceeding .177 caliber by means of spring, gas or air. The jury was also informed that it did not matter whether or not the gun was loaded. Finally the jury was told that there were four possible verdicts: guilty or not guilty of count 1 and guilty or not guilty of count 2.
The jury in returning a verdict of guilty as to count 1 must have decided that a gun did exist and in returning a verdict of not guilty as to count 2 must necessarily have determined the nonexistence of the gun. Thus the verdicts are inconsistent, People v Goodchild, 68 Mich. App. 226; 242 N.W.2d 465 (1976).
The conclusion that the verdicts in this case are inconsistent can be avoided only if the definition of handgun for purposes of the felonious assault statute differs from the definition of handgun for purposes of the felony-firearm statute, i.e., if a handgun as "dangerous weapon" is different from a handgun as "firearm". We find the definitions to be one and the same and thus find the verdicts to be inconsistent, requiring reversal. People v Goodchild, supra.
Felonious assault requires proof of a simple assault committed with a dangerous weapon. People v Richard Johnson, 42 Mich. App. 544; 202 N.W.2d 340 (1972). Michigan law generally focuses upon the actions of the defendant rather than the apprehension of the victim in establishing the existence of a criminal assault. People v Lilley, 43 Mich. 521; 5 N.W. 982 (1880). However, an exception exists as to felonious assaults where the charge alleges that the weapon is a gun. Where a firearm is used as a firearm, as opposed to use as a bludgeon, the fact that the victim believes that the firearm is loaded is sufficient to establish the use of a dangerous weapon. People v Williams, 6 Mich. App. 412; 149 N.W.2d 245 (1967). The prosecutor is not required to prove that the gun was loaded in a felonious assault charge, People v Doud, 223 Mich. 120; 193 N.W. 884 (1923).
A firearm is defined in MCL 8.3t; MSA 2.212(20) as follows:
"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, except any smooth bore rifle or handgun designed and manufactured exclusively for propelling BB's not exceeding .177 calibre by means of spring, gas or air."
A gun being a firearm, it seems clear from the above definition that an unloaded gun is a weapon "from which a dangerous projectile may be propelled * * *".
The handgun with which defendant allegedly assaulted the complainant herein was clearly both a dangerous weapon under the felonious assault statute and a firearm under the felony-firearm statute. We need not reach the issue of whether an inoperable gun would be a firearm, for defendant did not make any such claim but rather denied the existence of any gun.
The verdicts of the jury being inconsistent, we must vacate defendant's conviction for felonious assault. Reprosecution being barred on double jeopardy grounds, see Ashe v Swenson, 397 U.S. 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970), People v McCurtis 84 Mich. App. 460; 269 N.W.2d 641 (1978), defendant is discharged.