author: J. H. Gillis, J. D. C. Riley, J.

text:
    PEOPLE v KUBASIAK
    Docket No. 47476.
    Submitted May 6, 1980, at Grand Rapids.
    Decided July 2, 1980.
    Leave to appeal applied for.
    David W. Kubasiak was charged with felonious assault, breaking and entering with intent to commit felonious assault, and first-degree criminal sexual conduct. The charges arose out of an incident in which Kubasiak and a codefendant broke into the apartment of Kubasiak’s estranged wife. They pursued a visitor and then Kubasiak attempted to engage in sexual intercourse with his wife. Kubasiak was bound over to circuit court for trial. Before trial he made a motion to quash the information, which was denied, Kent Circuit Court, John T. Letts, J. Kubasiak appeals by leave granted, contending that there was insufficient evidence at the preliminary examination for the examining magistrate to bind him over for trial. Held:

    1. The statute which provides inter-spousal immunity extends to all degrees of criminal sexual conduct. A person does not commit criminal sexual conduct of any degree where the victim is his or her legal spouse unless the parties are living apart and one of them has filed for separate maintenance or divorce. Here, the parties were living apart but neither had filed for separate maintenance or divorce. Therefore, the defendant could not be convicted of criminal sexual conduct and the examining magistrate abused his discretion in binding the defendant over on that charge.
    2. The examining magistrate erred in admitting into evidence a report of the investigating officer reflecting a statement made by the visitor, the victim of the charged felonious assault. There was no indication that the victim had examined the report and adopted it at a time when his memory of the incident was fresh.

      Reference for Points in Headnotes
    [1, 2, 7] 21 Am Jur 2d, Criminal Law § 443 et seq.

       21 Am Jur 2d, Criminal Law §§ 13,17. 73 Am Jur 2d, Statutes § 300.

       65 Am Jur 2d, Rape § 27.
    Criminal responsibility of husband for rape or assault to commit rape, on wife. 84 ALR2d 1017.

       29 Am Jur 2d, Evidence §§ 876, 877.

       6 Am Jur 2d, Assault and Battery § 48 et seq.

      3. There was insufficient evidence presented to show that a felonious assault had taken place. Felonious assault is assault with a dangerous weapon. There was no evidence of the presence or use of a dangerous weapon and one may not be inferred from the evidence presented here. Binding the defendant over on this charge was an abuse of discretion.
    4. Because there was insufficient evidence to support a finding of felonious assault there was also insufficient evidence to support a finding that a felonious assault was intended. The magistrate abused his discretion in binding the defendant over on the charge of breaking and entering with intent to commit felonious assault.
    Reversed, and the information is quashed.
    D. C. Riley, J., concurred. She would, however, urge the Legislature to modify the statute providing inter-spousal immunity from the criminal sexual conduct act to eliminate the necessity of filing for separate maintenance or divorce before a spouse could be convicted of criminal sexual conduct against his or her mate. She recommends a law which would recognize that a spouse may be convicted of sexual assault if the assault is made after a certain length of time after the separation of the spouses.
    1. Criminal Law — Examining Magistrates — Probable Cause — Evidence.
    It is the duty of an examining magistrate to bind a defendant over for trial if it appears that a crime has been committed and there is probable cause to believe that the defendant committed it; positive proof of guilt is not required but there must be evidence on each element of the crime charged or evidence from which those elements may be inferred.
    2. Criminal Law — Preliminary Examination — Examining Magistrates — Abuse of Discretion.
    A magistrate’s determination at a preliminary examination should not be disturbed absent a clear abuse of discretion.
    3. Statutes — Construction of Statutes.
    Judicial construction of a statute is precluded where the language of the statute is plain and unambiguous.
    4. Criminal Law — Statutes — Strict Construction.
    Criminal statutes are strictly construed, and a defendant cannot be convicted under a statute unless his acts are clearly and unequivocally encompassed by its terms.
    5. Criminal Law — Courts — Crimes.
    Courts have no authority to infer the existence of crimes not defined by statute or by common-law precedent.
    6. Criminal Law — Criminal Sexual Conduct — Spouses — Statutes.
    A person does not commit criminal sexual conduct of any degree if the victim is his or her legal spouse unless the parties are living apart and one of them has filed for separate maintenance or divorce (MCL 750.5201; MSA 28.788[12]).
    7. Criminal Law — Examining Magistrates — Evidence.
    An examining magistrate may consider only legally admissible evidence in reaching a decision to bind a defendant over for trial.
    8. Criminal Law — Evidence — Hearsay — Exceptions to Hearsay — Recorded Recollection.
    Documents admitted into evidence pursuant to the recorded recollection exception to the hearsay rule must meet three conditions: (1) the document must pertain to matters about which the declarant once had knowledge; (2) the declarant must now have an insufficient recollection as to such matters; and (3) the document must be shown to have been made by the declarant or, if made by other than the declarant, to have been examined by the declarant and shown to accurately reflect the declarant’s knowledge when the matters were fresh in his memory.
    9. Assault and Battery — Felonious Assault.
    The elements of felonious assault are (1) an assault (2) with a dangerous weapon.
    10. Assault and Battery — Intent — Proof.
    A prosecutor has the duty to prove that a defendant charged with breaking and entering with intent to commit felonious assault intended to commit a felonious assault.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.

      David M. Hall, for defendant on appeal.
    Before: R. B. Burns, P.J., and J. H. Gillis and D. C. Riley, JJ.
   J. H. Gillis, J.

The defendant was charged with felonious assault, MCL 750.82; MSA 28.277, breaking and entering with the intent to commit felonious assault, MCL 750.110; MSA 28.305, and first-degree criminal sexual conduct, MCL 750.520b(1)(f); MSA 28.788(2)(1)(f). A preliminary examination was held on September 12, 1978, at the conclusion of which the defendant was bound over for trial on all three charges.

Prior to trial, the defendant moved in the circuit court to quash the information. The motion was denied in an order dated June 14, 1979. The defendant thereafter sought leave to appeal to this Court. The application for leave to appeal was granted in an order dated December 21, 1979. GCR 1963, 806.2.

The defendant contends on appeal that the evidence adduced at the preliminary examination was insufficient to support the magistrate’s decision to bind him over on any of the above charges.

It is the duty of the examining magistrate to bind a defendant over for trial if it appears that a crime has been committed and there is probable cause to believe that the defendant committed it. MCL 766.13; MSA 28.931, People v Asta, 337 Mich 590, 609-610; 60 NW2d 472 (1953). While positive proof of guilt is not required, there must be evidence on each element of the crime charged or evidence from which those elements may be inferred. People v Oster, 67 Mich App 490, 495; 241 NW2d 260 (1976). A magistrate’s determination at the preliminary examination should not be disturbed unless a clear abuse of discretion is demonstrated. People v Doss, 406 Mich 90, 101; 276 NW2d 9 (1979).

Our initial inquiry is whether the people presented sufficient evidence to support the magistrate’s finding that the crime of first-degree criminal sexual conduct contrary to MCL 750.520b(l)(f); MSA 28.788(2)(l)(f) had been committed.

MCL 750.5201 MSA 28.788(12) provides:

"A person does not commit sexual assault under this act if the victim is his or her legal spouse, unless the couple are living apart and one of them has filed for separate maintenance or divorce.”

The defendant’s wife is the alleged victim of the criminal sexual conduct charge. The defendant contends that the marital relationship precludes a finding that first-degree criminal sexual conduct had been committed.

The defendant argues that the inter-spousal immunity of MCL 750.5201 extends to all forms of criminal sexual conduct; in particular, first-degree criminal sexual conduct. The people argue that the statute’s use of the term sexual "assault” indicates that inter-spousal immunity extends only to those acts of criminal sexual conduct which involve an assault, i.e., assault with intent to commit criminal sexual conduct, MCL 750.520g; MSA 28.788(7).

Where the language of a statute is plain and unambiguous, judicial construction thereof is precluded. Lansing v Lansing Twp, 356 Mich 641, 648-649; 97 NW2d 804 (1959). Where, as here, the statute is reasonably subject to two or more interpretations, the proper interpretation must be ascertained by reference to the canons of judicial construction. King v Director of Midland County Dep’t of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977).

Criminal statutes are strictly construed. A defendant cannot be convicted under the language of a statute unless his acts are clearly and unequivocally uncompassed by its terms. People v Lyons, 93 Mich App 35, 43; 285 NW2d 788 (1979). The rule is most often employed in determining what actions come within the scope of a statutory prohibition. If there is doubt as to whether the act charged is embraced in the prohibition, that doubt is to be resolved in favor of the defendant. This principle is based on the idea of notice to the defendant. People v Ellis, 204 Mich 157, 161; 169 NW 930 (1918).

This principle also reflects the premise that it is the job of the Legislature to define criminal offenses. Restraint by the courts in interpreting criminal statutes works to avoid judicial infringement of that legislative function. No principle is more universally settled than that which deprives all courts of authority to infer, from their judicial ideas of policy, crimes not defined by statute or by common-law precedent. Ware v Branch Circuit Judge, 75 Mich 488, 491; 42 NW 997 (1889), quoted in People v Willie Johnson, 75 Mich App 221, 225; 255 NW2d 207 (1977).

These principles are supportive of the interpretation urged by the defendant. Case law prior to the adoption of the criminal sexual conduct act held that a man could not be guilty of raping his wife. See People v Pizzura, 211 Mich 71; 178 NW 235 (1920). To adopt plaintiffs interpretation of MCL 750.5201 would subject the defendant to punishment for a crime which is neither clearly defined by statute nor defined at all by common-law precedent. This cannot be done without wholly violating the above principles of construction. As such, we hold that MCL 750.5201 is properly interpreted to mean that an actor does not commit first-through-fourth-degree criminal sexual conduct if the victim is his or her legal spouse unless the parties are living apart and one of them has filed for separate maintenance or divorce.

We note that this interpretation is consistent with our perception of the legislative intent underlying MCL 750.5201. We have examined the various extrinsic aids cited by the parties which relate to such legislative intent and conclude that while the Legislature intended that the criminal sexual conduct act strengthen the criminal law describing unlawful sexual conduct, People v Nelson, 79 Mich App 303, 319; 261 NW2d 299 (1977), it did not intend to extend such strengthening as far as is argued by the plaintiff. See, generally, Note: Michigan’s Criminal Sexual Assault Law, 8 U Mich J Law Ref 217, 232-233 (1974), Note: Criminal Law— Sexual Offenses — A Critical Analysis of Michigan’s Criminal Sexual Conduct Act, 23 Wayne L Rev 203, 210 (1976), 1979 Michigan Second Revised Criminal Code, § 2340 and comments thereto.

An examination of the record in the present case discloses that, while it is undisputed that the parties were living apart at the time of the offense, it is similarly undisputed that neither had filed an action for divorce or separate maintenance. On these facts we must conclude that MCL 750.5201 applies and precludes a finding that the first-degree criminal sexual conduct had been committed. The magistrate’s determination to the contrary constitutes an abuse of discretion.

We next consider whether the people presented sufficient evidence at the preliminary examination to support the magistrate’s findings that the crimes of felonious assault and breaking and entering with intent to commit felonious assault had, in fact, been committed and that there existed probable cause to believe that the defendant committed them.

In answering this question we must first address an evidentiary matter. It is well-settled that an examining magistrate may consider only legally admissible evidence in reaching a decision to bind a defendant over for trial. People v Walker, 385 Mich 565; 189 NW2d 234 (1971). The defendant claims that the magistrate erred in considering the testimony of the investigating officer concerning a prior statement made by the victim of the felonious assault.

Otherwise objectionable hearsay testimony is admissible if it falls within a recognized exception to the hearsay rule of exclusion. MRE 803(5) provides:

"The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness:
"(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.”

Documents admitted pursuant to this rule must meet three requisites: (1) The document must pertain to matters about which the declarant once had knowledge; (2) The declarant must now have an insufficient recollection as to such matters; (3) The document must be shown to have been made by the declarant or, if made by one other than the declarant, to have been examined by the declarant and shown to accurately reflect the declarant’s knowledge when the matters were fresh in his memory. United States v Edwards, 539 F2d 689, 691-692 (CA 9, 1976), cert den 429 US 984; 97 S Ct 501; 50 L Ed 2d 594 (1976), and United States v Williams, 571 F2d 344, 348 (CA 6, 1978), interpreting FRE 803(5) which is identical to MRE 803(5). See, generally, Moncrief v Detroit, 398 Mich 181, 189-190; 247 NW2d 783 (1976).

In. the present case, Ronald Schansema, the victim of the alleged felonious assault, made the statement in question to the investigating officer five days after the incident. The officer prepared a report reflecting the statement. Schansema testified at the preliminary examination that he had no present recollection of the events at issue. The magistrate permitted the officer to read the report into evidence.

We find that the first and second requisites to admissibility were satisfied. The question presented is whether the third was. Did Schansema examine the report and find it to be accurate when the matter was fresh in his memory? An examination of the record indicates that he did not. There is no indication that the declarant adopted the report at a time when he retained knowledge of the matter. Accordingly, there is no guarantee that the report accurately reflected the events which transpired. The third requisite to admissibility was not satisfied. The magistrate improperly considered such evidence at the preliminary examination.

The question becomes whether, absent such improperly considered evidence, there was nevertheless presented sufficient evidence to support the magistrate’s bind-over decision. The answer is that there was not.

The elements of felonious assault are (1) an assault (2) with a dangerous weapon. People v Johnson, 42 Mich App 544, 546-547; 202 NW2d 340 (1972). In the present case, a neighbor testified that he saw two men with an "object” in hand break a window in the apartment of Susan Kubasiak. Mrs. Kubasiak testified that the defendant and the codefendant entered her apartment through the broken window and ran into the living room in pursuit of Schansema. The defendant then forced her into the bedroom and attempted to engage in sexual intercourse. Mrs. Kubasiak did not see any weapon in the hand of either the defendant or his codefendant.

On these facts, we hold that sufficient evidence was not presented to show that a felonious assault had taken place. While it is arguable that an assault may be inferred on these facts (something prevented Schansema from attempting to help Mrs. Kubasiak), the presence and use of a dangerous weapon may not. There is no evidence with which to identify the "object” which was used to break the window as a dangerous weapon nor is there any evidence to permit the inference that the "object” was utilized for any purpose other than to break the window. Accordingly, we hold that the magistrate abused his discretion in binding the defendant over on the charge of felonious assault._

The same conclusion obtains with respect to the breaking and entering with intent to commit felonious assault charge. With respect to such a charge, the prosecutor has the duty to prove that the defendant intended to commit the particular felony charged, i.e., felonious assault. People v Westerberg, 274 Mich 647; 265 NW 489 (1936). The above analysis which concluded that insufficient evidence was presented to support the finding that a felonious assault occurred similarly supports the conclusion that insufficient evidence was presented to support the finding that a felonious assault was intended. Accordingly, we hold that the magistrate abused his discretion in binding the defendant over on the breaking and entering charge.

The circuit judge’s failure to quash the information against the defendant was erroneous as to all three charges. The circuit court is reversed. The information is quashed.

R. B. Burns, P.J., concurred.

D. C. Riley, J.

(concurring). I concur in my colleagues’s disposition of this case. However, I write separately to urge the Legislature to modify MCL 750.5201; MSA 28.788(12).

As presently written, the statute only recognizes sexual assault between spouses if the couple is living apart and if one of them has filed for separate maintenance or divorce. Although I can readily accept the requirement of separate quarters to demonstrate rejection of the marriage, I cannot agree with the necessity for filing. There are many possible financial and social reasons why a spouse might separate but not seek a divorce. I do not believe that these spouses should be penalized for their choice, one which may have been selected out of necessity. A far more equitable law would be one that would recognize sexual assault after a certain length of separation, say one month. This modification would be more just since it would have equal application to persons of all social, religious and economic backgrounds.

       The defendant’s alleged criminal liability with respect to the criminal sexual conduct charge is not based upon the behavior of another. See fn 2 infra.

       The defendant was charged along with John Poggi. The case against the codefendant has been settled by a plea bargain and is not at issue in this appeal.

       The felonious assault charge has reference only to Ronald Schansema.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v HARMAN
    Docket No. 78-475.
    Submitted May 8, 1980, at Detroit.
    Decided July 2, 1980.
    Leave to appeal applied for.
    Defendant, Charles D. Harman, was convicted of larceny from the person in the Wayne Circuit Court, Victor J. Baum, J. Defendant appeals, alleging that the court’s instruction to a deadlocked jury was coercive and constituted reversible error. Held:

    The court instructed the jury that a jury which is unable to reach a verdict "fails to accomplish its purpose” and that each time there is such a jury "ammunition is given to those who oppose the jury system as we know it”. The court’s admonition at the conclusion of these instructions that it was not suggesting that any juror give up his conscientious opinion or belief adequately lessened the effect of the instructions. Furthermore, the facts indicate the jury was not coerced because the jury deliberated approximately three hours after the instructions.
    Affirmed.
    1. Criminal Law — Instructions to Jury — Coercion.
    A claim that a jury instruction was coercive must be determined on a case-by-case basis.
    2. Criminal Law — Instructions to Jury — Coercion.
    The fact that the jury, which had twice indicated it was close to a verdict prior to being instructed concerning a deadlock, deliberated approximately three hours after being given the instruction indicates the instruction had no coercive effect.
    Reference for Points in Headnotes
    [1, 2] 76 Am Jur 2d, Trial §§ 1054-1056.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Rita Chastang, Assistant Prosecuting Attorney, for the people._

      Domnick J. Sorise, Assistant State Appellate Defender, for defendant on appeal.
    Before: Beasley, P.J., and M. F. Cavanagh and W. A. Porter, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

The defendant was charged with and convicted by jury of larceny from a person in violation of MCL 750.357; MSA 28.589. Following sentence, defendant appeals as a matter of right.

The defendant contends that the trial court’s instruction to the deadlocked jury was coercive and constituted reversible error. The court made the following statements in its instruction:

"[I]n order to return a verdict, each juror must agree to it. Each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with his or her fellow jurors.
"No juror should surrender his honest conviction as to the weight or eifect of the evidence solely because of the opinion of fellow jurors or for the mere purpose of returning a verdict.
"Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without sacrifice of individual judgment.
"In the course of deliberations, a juror should not hesitate to reexamine his or her own views and change his or her own opinion if convinced that this opinion is erroneous.
"May I remind you that when a jury is unable to reach a verdict, the jury fails to accomplish its purpose. A jury unable to agree is, therefore, a jury which has failed in its purpose. Each time we have such an indecisive jury, ammunition is given to those who oppose the jury system as we know it, a system which requires a unanimous vote for either a conviction or an acquittal. Please bear this in mind._
"I say this without in any way suggesting that any of you should give up his or her conscientious opinion or belief.”

The Allen charge (so named from Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 [1896]) was designed to encourage a jury to reach a verdict by telling the minority that they should consider the correctness of their stance. It was given after the jury had deliberated a significant time without reaching a verdict.

In People v Sullivan, 392 Mich 324; 220 NW2d 441 (1974), the Court stated that a claim of coercion must be determined on a case-by-case basis.

In the case at bar, the most controversial statement made by the trial judge is his addition to the instruction recommended by A.B.A. Standard 5.4 that a jury which is unable to reach a verdict "fails to accomplish its purpose” and that each time there is such a jury "ammunition is given to those who oppose the jury system as we know it”. The qualification made by the judge at the end of these statements adequately lessened their effect.

The facts indicate that the jury was not coerced by these statements. Prior to receiving the instruction the jury twice indicated that it was close to a verdict. This Court stated in People v Tooks, 55 Mich App 537; 223 NW2d 63 (1974), that where a jury deliberated for two hours after receiving the instruction, any coercive import of the instruction had been ignored. In the case at bar, the jury deliberated for approximately three hours indicating that the instruction had no coercive effect.

Our review of the instruction and the facts of this case reveals that the trial court did not commit reversible error.

Affirmed.


text:
    PEOPLE v BEACHMAN
    Docket No. 78-3941.
    Submitted April 15, 1980, at Detroit.
    Decided July 2, 1980.
    Arnold Beachman was charged with possession of heroin with intent to deliver. A preliminary examination was held, and defendant was bound over for trial. Defendant moved to suppress the evidence and a suppression hearing was held in Recorder’s Court of Detroit. Defendant’s motion to suppress was granted, George W. Crockett, Jr., J., and defendant was discharged. The people appeal alleging the trial court erred in holding (1) that the arresting officer was not entitled to rely on information supplied by an informant and thus lacked probable cause to arrest the defendant, (2) that the arresting officer entered the hotel illegally, thereby tainting defendant’s subsequent arrest, and (3) that the heroin discovered in defendant’s possession was improperly seized and, therefore, inadmissible as evidence. Held:

    1. The trial court erred in concluding that there was no probable cause to arrest the defendant, since a known and reliable informant supplied the arresting officer with a detailed description of the defendant and the offense committed.
    2. Exigent circumstances justified the warrantless entry into the hotel lobby for the purpose of effectuating an arrest of the defendant.
    3. The search of defendant’s person was incident to a lawful arrest, and, thus, the seizure of the heroin discovered was proper and the heroin was admissible as evidence.
    Reversed and remanded.
    References for Points in Headnotes
    [1-6, 12, 13] 5 Am Jur 2d, Arrest § 46.
    [7-9, 12,13] 68 Am Jur 2d, Searches and Seizures §§ 2, 4, 16, 35, 36, 44.
    [10,11] 68 Am Jur 2d, Searches and Seizures §§ 16, 20, 21.

       68 Am Jur 2d, Searches and Seizures § 37.

       68 Am Jur 2d, Searches and Seizures § 44.

       68 Am Jur 2d, Searches and Seizures § 37.

       4 Am Jur 2d, Appeal and Error § 268. 21 Am Jur 2d, Criminal Law §§ 214, 216.

      1. Criminal Law — Evidence — Probable Cause — Warrantless Arrest — Informant — Reliability — Basis for Conclusion.
    Evidence derived from an informant will not, by itself, constitute probable cause for a warrantless arrest unless the police (1) have reason to believe the information is reliable, and (2) are informed of the underlying circumstances upon which the informant based his conclusion.
    2. Criminal Law — Informants — Detailed Information — Rumor — General Reputation.
    Information from an informant must describe the accused’s criminal activity in sufficient detail to ensure that it was more than a casual rumor circulating in the underworld or an accusation based on the individual’s general reputation.
    3. Criminal Law — Informants — Trustworthiness — Past Experience.
    A disclosure that an informant has provided information on past occasions which later proved to be correct upon investigation is one recognized method of establishing the trustworthiness of the informant.
    4. Criminal Law — Anonymous Informants — Extrinsic Corroboration — Independent Sources.
    The veracity of an anonymous informant can he established extrinsically by corroborating certain parts of the information given by independent sources.
    5. Criminal Law — Information — Reliable Informant — Independent Corroboration.
    Information given by an informant who is not anonymous, but has provided reliable information in the past on numerous occasions, does not need independent corroboration.
    6. Criminal Law — Warrantless Arrest — Probable Cause — Test — Informant — Description.
    A warrantless arrest satisfies the test for probable cause where a known, reliable informant supplies a detailed description of a suspect and the offense committed, and the fact that the informant omitted any mention of one of the suspect’s physical characteristics does not invalidate an otherwise distinctive description.
    7. Constitutional Law — Fourth Amendment — Searches and Seizures — Physical Entry — Criminal Law.
    The physical entry of the home is the chief evil against which the wording of the Fourth Amendment to the United States Constitution is directed.
    8. Constitutional Law — Presumption — Unreasonable Per Se — Exigent Circumstances — Criminal Law.
    Searches and seizures inside a home without a warrant are presumed to be per se unreasonable, absent exigent circumstances.
    9. Constitutional Law — Searches and Seizures — Warrant — Reasonable Expectation of Privacy — Criminal Law.
    A search warrant is required if the person searched has a reasonable expectation of privacy in the area searched or the materials seized.
    10. Constitutional Law — Searches and Seizures — Expectations of Privacy — Public Place — Warrant — Probable Cause — Criminal Law.
    A person in a public place has no expectation of privacy which would require the need, upon probable cause, to obtain a search warrant prior to the initiation of a search or seizure.
    11. Constitutional Law — Expectation of Privacy — Multiple Dwellings — Common Areas — Criminal Law.
    A hallway shared by tenants in a private, multiple unit dwelling or the lobby of a locked residence hotel is not a public place, where entry is limited by right to occupants of the building and their guests, and the occupants can, therefore, expect a high degree of privacy in that area.
    12. Constitutional Law — Arrest — Search Warrant — Exigent Circumstances — Criminal Law.
    The difference between an entry for the purpose of conducting an arrest and an entry for the purpose of conducting a search is one of degree rather than kind, since both share the fundamental element of breaching the entrance to an individual’s home, and, therefore, both require the obtaining of a warrant prior to the arrest or the search, absent exigent circumstances.
    13. Constitutional Law — Exigent Circumstances — Warrant — Arrest — Search — Case-by-Case Determination — Criminal Law.
    The existence of exigent circumstances which would waive the requirement of a warrant prior to an arrest or search inherently depends upon a case-by-case determination.

      14. Constitutional Law — Exigent Circumstances — Destruction of Evidence — Necessity — Criminal Law.
    Exigent circumstances exist where there is reason to believe that the removal or destruction of evidence is imminent, where further entry of the premises is necessary to prevent the recurrence of a fire, or where it is necessary to ensure the safety of the police or others.
    15. Criminal Law — Warrantless Searches and Seizures — Incident to Arrest — Evidence — Admissibility at Trial — Constitutional Law.
    A search of a suspect incident to a lawful arrest without a warrant is proper, and materials discovered and seized during the search are admissible as evidence at the trial of the suspect.
    16. Trial — Bar — Double Jeopardy — Appeal — Remand — Trial Court — Error.
    A trial is not barred on remand by the Court of Appeals by the prohibitions against double jeopardy, where a trial court erred in suppressing evidence and dismissed the prosecution against a defendant.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Anne B. Wetherholt, Assistant Prosecuting Attorney, for the people.

      Milton R. Henry, for defendant.
    Before: M. F. Cavanagh, P.J., and R. M. Maher and D. F. Walsh, JJ.
   Per Curiam.

The defendant was charged with possession of heroin with intent to deliver in violation of MCL 335.341(1)(a); MSA 18.1070(41)(1)(a). Defendant was bound over for trial following a preliminary examination on June 9, 1978. Thereafter, defendant moved to suppress the evidence. A suppression hearing was conducted on June 19, 1978, in Detroit Recorder’s Court. The trial court granted defendant’s motion to suppress the evidence and discharged the defendant. The people appeal from this ruling as of right.

At the preliminary examination, Detroit Police Officer Woodrow Horne testified that on May 14, 1978, he received the following tip from an unidentified informant:

"He told me a black male was selling heroin in the lobby of 14 Charlotte. I asked him for a description and he gave me a black male about twenty-eight years old, 5'10" 140 to 150 pounds, wearing a gray jacket, green shirt, red print-type pants, and also stated that the drugs would be in his waistband of his pants.”

Officer Horne characterized his informant as "reliable” because of six prior tips received from him, five resulted in arrests, two ultimately resulted in convictions, and two cases were yet pending. In addition, Officer Horne testified that 14 Charlotte is a residence hotel which is a known site of narcotics sales.

Ten minutes after receiving the tip, Officer Horne arrived at the hotel. The door to the hotel was locked. Officer Horne knocked on the door and was admitted by one Ladonne Towns. Towns was not the manager of the hotel, and Officer Horne did not know whether Towns was a guest of the hotel. Towns gave his address as 2454 Glynn Court. Officer Horne stated that he had known this man to live at 14 Charlotte.

When he entered the lobby, Officer Horne observed that defendant fit the description in that he wore a gray jacket, green shirt and plaid pants. Defendant was with a female. Officer Horne approached the defendant, identified himself, placed him under arrest for violation of the controlled substance act, then lifted up his shirt and discovered two bundles of six coin envelopes, each containing suspected heroin. Officer Horne opened one pack which contained an off-white powder. The bundles were later analyzed and found to contain 5.2 grams of heroin.

Officer Horne had obtained no warrant prior to the arrest. He could not see the defendant until after he had entered the building and did not actually observe the defendant selling heroin.

At the suppression hearing, the defendant testified that, at the date of his arrest, he had been sharing a room at the hotel with a friend. He did not invite the officer to enter the hotel. Someone named Ladonne told him that the officer had brushed past him through the door as Ladonne was leaving the hotel. After defendant was arrested in the lobby, the officer searched him and took the packages of suspected heroin.

At the conclusion of the evidentiary hearing, the trial court found that the description provided by the informant, which omitted any mention of defendant’s distinctive facial hair, was not sufficiently distinctive, that the police were not entitled to rely on the informant without further investigation to ascertain that defendant was the correct person and that the police lacked probable cause to enter a private dwelling to make the arrest.

The first issue to be resolved on appeal is whether the arresting officer, acting on information supplied by the informant, had probable cause to arrest the defendant herein.

Evidence derived from an informant will not, by itself, constitute probable cause for a warrantless arrest unless: (1) the police have reason to believe the information is reliable, and (2) the police are informed of the underlying circumstances upon which the informant based his conclusion. Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964), People v Hoerl, 88 Mich App 693, 700; 278 NW2d 721 (1979). In Spinelli v United States, 393 US 410; 89 S Ct 584; 21 L Ed 2d 637 (1969), the United States Supreme Court explained that the tip must describe the accused’s criminal activity in sufficient detail to ensure that it was more than a "casual rumor circulating in the underworld or an accusation based on the individual’s general reputation”. In McCray v Illinois, 386 US 300; 87 S Ct 1056; 18 L Ed 2d 62 (1967), the Court stated that one recognized method of establishing the trustworthiness of the informant is a disclosure that the informant has provided information on past occasions which later proved to be correct upon investigation.

If an informant remains anonymous, there is no way to assess his reliability based on past experience. The Spinelli Court said that the veracity of an anonymous informant can be established extrinsically, by corroborating certain parts of the information given by independent sources.

In People v Walker, 401 Mich 572; 259 NW2d 1 (1977), an anonymous tipster told the police officer that defendant had just driven to Detroit to pick up "a load of dope” and would return to Benton Harbor in approximately five hours. The informant stated that defendant would be riding in one of two automobiles, which he then described in detail, and would be riding with two women. Finally, the tipster said that defendant would be going to 668 Superior Street upon his return to Benton Harbor. The Michigan Supreme Court held that this information was sufficiently detailed to warrant the inference that it was obtained in a reliable manner and was more substantial than a "casual rumor”. The Court also found that the police, working independently, had traced the registration of one of the described vehicles to a woman living at the specified address on Superior Street and had seen the other described car parked in the driveway, which was sufficient to corroborate the reliability of the informant.

In the case at bar, there was no need for independent corroboration of the information given, since the tipster was not anonymous, but had provided reliable information six times in the past. See People v Greer, 91 Mich App 18, 23; 282 NW2d 819 (1979), People v Tooks, 403 Mich 568, 586; 271 NW2d 503 (1978) (dissenting opinion).

In People v Greer, supra, the informant telephoned the police officer with information that he had just observed the defendant selling heroin at Duke’s Playhouse Bar. He described defendant as a 36-year-old black male wearing a brown hat, brown jacket, white sweater and blue jeans and was known to the informant as Steel Bill Greer. The officer arrived at the bar within ten minutes of receiving the tip. The defendant fit this description perfectly. The officer stopped him, asked his name, and placed him under arrest. He then searched the defendant and found coin envelopes containing heroin. This informant had provided reliable information five times in the past. This Court upheld the warrantless arrest, finding that it had satisfied the two-pronged test for probable cause. The Greer Court found further that the trial court had erred in concluding otherwise and dismissing the case in mid-trial.

We conclude that the trial court in the instant case erred in concluding that there was no probable cause to arrest the defendant where a known and reliable informant supplied a detailed description of the defendant and of the offense he had observed being committed. The fact that the informant omitted any mention of defendant’s facial hair does not invalidate his otherwise distinctive description.

The second allegation of error raised by the people involves the legality of the arresting officer’s warrantless entry into the locked residence hotel in order to arrest the defendant.

The United States Supreme Court has unequivocally stated that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed”. United States v United States Dist Court for the Eastern Dist of Michigan, 407 US 297, 313; 92 S Ct 2125; 32 L Ed 2d 752 (1972). There is a basic presumption that searches and seizures inside a home without a warrant are per se unreasonable, absent exigent circumstances. Coolidge v New Hampshire, 403 US 443, 474-475; 91 S Ct 2022; 29 L Ed 2d 564 (1971).

Under Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), a search warrant is required if the person searched has a reasonable expectation of privacy in the area searched or the materials seized. A person in a public place has no expectation of privacy. United States v Santana, 427 US 38; 96 S Ct 2406; 49 L Ed 2d 300 (1976).

In People v Killebrew, 76 Mich App 215, 218; 256 NW2d 581 (1977), this Court held that a hallway shared by tenants in a private, multiple-unit dwelling is not a public place. The Court stated that since entry was limited by right to occupants of the building and their guests, the occupants could expect a high degree of privacy in that area. We can find no basis for distinction in privacy interests between the hallway of an apartment building and the lobby of a locked residence hotel.

In a recently released decision, Payton v New York, 445 US 573; 100 S Ct 1371; 63 L Ed 2d 639 (1980), the United States Supreme Court criticized a distinction drawn by the New York Court of Appeals between an entry into defendant’s zone of privacy for purpose of an arrest and an entry for purpose of conducting a search. The New York court decided that invasion of a defendant’s home for the purpose of arresting him was a less offensive intrusion, reasoning as follows:

"To the extent that an arrest will always be distasteful or offensive, there is little reason to assume that arrest within the home is any more so than arrest in a public place; on the contrary, it may well be that because of the added exposure the latter may be more objectionable.”

Justice Stevens’ majority opinion states that the difference between an entry for the purpose of an arrest and an entry for the purpose of conducting a search is one of degree rather than kind, since both share the fundamental element of breaching the entrance to an individual’s home. Therefore, absent exigent circumstances, there cannot be an entry into a defendant’s house without a warrant.

In the case at bar, the police officer, acting on probable cause supplied by the tip of a reliable informant, entered into a locked residence hotel without proper consent. He was not invited to enter by the defendant. He was not admitted by a manager or other person with authority. Ladonne Towns, who was alleged to have opened the door in response to the officer’s knock, did not give the hotel as his address, so we must presume he was not a resident of the hotel at that time. Therefore, the warrantless arrest of the defendant would be the basis for reversal, absent a finding of exigent circumstances.

The existence of exigent circumstances inherently depends upon a case-by-case determination. In People v Tyler, 399 Mich 564, 578; 250 NW2d 467 (1977), the Court said that exigent circumstances exist where there is reason to believe that the destruction of evidence is imminent or where further entry of the premises is necessary to prevent the recurrence of a fire. In People v Plantefaber, 91 Mich App 764, 770-771; 283 NW2d 846 (1979), this Court upheld the warrantless search of defendant’s suitcase at the airport because circumstances were sufficiently exigent: defendant’s suitcases had already been checked and defendant’s plane was scheduled to depart shortly. In People v Little, 78 Mich App 164, 173; 259 NW2d 409 (1977), this Court upheld entry into defendant’s trailer as exigent where it was done in order to ensure the arrest of fleeing felons. Ensuring the safety of police or others, as where there is a weapon which can be fired, is an exigent circumstance. People v Olajos, 397 Mich 629; 246 NW2d 828 (1976). In People v Hopko, 79 Mich App 611; 262 NW2d 877 (1977), police entered defendant’s backyard garden at the cotenant’s request and saw marijuana plants growing. This Court upheld the warrantless seizure of the plants because the owner was on the premises, presenting an "exigent circumstance”, since the marijuana could be easily removed and destroyed.

We find sufficient exigent circumstances in the case at bar to justify the warrantless entry into the hotel lobby for the purpose of effectuating an arrest. The officer had obtained a tip only ten minutes earlier that the defendant, dressed in the particularly described clothes, was engaged in the sale of narcotics. The officer could reasonably and justifiably believe that defendant would leave the lobby or would change his distinctive clothing in the time needed to secure an arrest warrant. Therefore, the trial court erred in concluding that the arresting officer entered into the hotel illegally, thus tainting the subsequent arrest of the defendant.

The final issue on this appeal is whether the heroin which was discovered in the defendant’s possession was improperly seized, and whether it was, therefore, inadmissible into evidence. Based on our foregoing analysis, we uphold the search of defendant as incident to a lawful arrest. Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969), United States v Robinson, 414 US 218; 94 S Ct 467; 38 L Ed 2d 427 (1973). Therefore, the heroin which was seized was admissible into evidence, and the trial court erred in concluding that it must be suppressed.

We conclude that the trial court erred in suppressing the heroin and dismissing the prosecution against the defendant. We, therefore, reverse the dismissal and remand the matter to the trial court for trial. We note that a trial would not be barred by the prohibitions against double jeopardy. See, People v Greer, supra.

        People v Payton, 45 NY2d 300; 380 NE2d 224 (1978).

        Id. 45 NY2d 300, 310-311.


text:
    ANDREWS v GENERAL MOTORS CORPORATION
    Docket No. 43707.
    Submitted April 15, 1980, at Detroit.
    Decided July 2, 1980.
    Leave to appeal applied for.
    Martin D. Andrews was an employee of General Motors Corporation when he was injured in a fight with another employee. He applied for worker’s disability compensation benefits. At the hearing, it was established that Andrews was working with another worker in a two-man team. Roger Johnson was working on another two-man team. Some employees, including Andrews, were advocating a protest against a management decision in the form of a work slowdown, a violation of shop rules. Johnson refused to participate. During a break, Andrews approached Johnson and exchanged angry words with him. Johnson pushed Andrews, Andrews hit Johnson and a fight resulting in Andrews’ injuries ensued. The referee awarded benefits to Andrews and the Worker’s Compensation Appeal Board affirmed. General Motors appeals by leave granted. Held:

    An employee may recover worker’s disability compensation benefits for injuries received in assaults, whether sportive or malicious, which arise out of the employment and are received in the course thereof except where the injured employee’s actions are of such a gross and reprehensible nature as to constitute intentional and willful misconduct. Andrews’ conduct did not involve such a degree of moral turpitude as to preclude recovery.
    Affirmed.
    Worker’s Compensation — Assaults — Willful Misconduct.
    An employee may recover worker’s disability compensation benefits for injuries received in assaults, whether sportive or malicious, which arise out of the employment and are received in the course thereof except where the injured employee’s actions are of such a gross and reprehensible nature as to constitute intentional and willful misconduct.
    Reference for Points in Headnote

       82 Am Jur 2d, Workmen’s Compensation § 330.

      Manason & Ernstein, P.C., for plaintiff._

      Willard W. Wallace and Francis S. Jaworski, for defendant.
    Before: M. F. Cavanagh, P.J., and R. M. Maher and D. F. Walsh, JJ.
   Per Curiam.

General Motors Corporation (GM) is appealing by leave granted from a January 12, 1979, opinion and order of the Worker’s Compensation Appeal Board (WCAB) affirming a referee’s award of compensation benefits to Martin D. Andrews. Andrews was injured in a fight with a coworker and required five to six days of hospitalization.

Andrews filed a petition for worker’s compensation benefits on March 28, 1975. A hearing was held before an administrative law judge on April 10, 1976. Arthur Dabbs, a coworker of Andrews’ at the General Motors Fleetwood plant, testified concerning the injury. On February 10, 1975, Dabbs was working on a two-person team with Roger Johnson. Andrews and another man were working in a two-person team in front of Dabbs and Johnson. Some employees, including Andrews, were advocating a slowdown action in order to protest management’s reduction of the number of teams working in their area without reducing the workload. Slowdown tactics constitute a violation of shop rules. Johnson refused to go along with the slowdown, and this caused an argument between Johnson and Andrews. Later, Dabbs and Johnson were sitting at a table during a break. Andrews came over to them and began exchanging angry words with Johnson. Johnson stood up and pushed Andrews. Andrews responded by hitting Johnson with his fist.

Andrews testified at the hearing that he and Johnson had been friends prior to the altercation in question. They exchanged some angry words because Johnson refused to go along with a work slowdown. A while later, the line broke down, so Andrews walked over to where Johnson was sitting. The argument resumed, then Johnson jumped up from the table and pushed Andrews back and kept coming, so Andrews hit him. During the fight, Andrews hit his head on a rail, became unconscious and was taken to the hospital. Andrews suffered a fractured jaw, a chipped bone in his arm and injury to the neck and back. Andrews was given a two-week disciplinary layoff as a result of the fight. Roger Johnson’s testimony at the hearing essentially confirmed Andrews’ version. John Wright, a line supervisor at the plant, stated that Andrews had jumped up from the table and threw the first punch at Johnson.

Section 301 of the Worker’s Disability Compensation Act provides compensation for an employee for an injury "arising out of and in the course of his employment”. MCL 418.301; MSA 17.237(301). This includes an injury sustained as a result of actions by coemployees. MCL 418.827; MSA 17.237(827); Fidelity & Casualty Co of New York v DeShone, 384 Mich 686, 691; 187 NW2d 215 (1971). Under § 305 of the act, if the employee is injured "by reason of his intentional and willful misconduct” he is not entitled to benefits. MCL 418.305; MSA 17.237(305).

On appeal, GM contends that the WCAB erred in finding that Andrews’ injuries were compensable, since they resulted from an altercation which had been initiated by him.

In Crilly v Ballou, 353 Mich 303, 327; 91 NW2d 493 (1958), the Michigan Supreme Court specifically overruled the case of Tarpper v Weston-Mott Co, 200 Mich 275; 166 NW 857 (1918), and held that injuries received in assaults, whether they are sportive or malicious, are not beyond the realm of compensability if they arise out .of the employment and are received in the course thereof. The Court did exclude from coverage those actions which are "of such gross and reprehensible nature as to constitute intentional and willful misconduct”. Crilly, supra, 327. The Court declined to mark out a precise line of demarcation for acts involving a degree of "moral turpitude”, leaving that delineation for a case-by-case determination. The example given for a case to be excluded by its willful and wanton nature was Federal Underwriters Exchange v Samuel, 138 Tex 444; 160 SW2d 61 (1942), wherein the assailant-claimant armed himself with an iron bar and a knife and attacked a fellow employee, and was injured when that person defended himself.

The Crilly Court specifically considered, then rejected, making the question of compensation turn on whether or not the claimant was the aggressor. Crilly, supra, 321-324.

In Harrison v Tireman & Colfax Bump & Repair Shop, 395 Mich 48; 232 NW2d 274 (1975), the Michigan Supreme Court again addressed the issue of compensation for work-related assaults. Harrison became a quadraplegic as the result of a gunshot wound in the neck inflicted by his employer. The plaintiff testified that Jack White, his employer, approached him with a shotgun without provocation and struck him twice with the barrel. When another employee intervened and wrestled with White over the gun, it went off and wounded Harrison. Jack White testified that he and plaintiff argued about plaintiff’s uncompleted work. White claimed that Harrison assaulted him with a wrench and knocked him over a floor jack. Another employee named Adam Herring intervened and the fight stopped. Plaintiff threatened bodily harm to White. White went to get his shotgun. When he returned, Herring took the gun away and walked over to the office with White. At that time, White’s brother shouted out a warning that plaintiff was raising a 4 X 4 piece of wood to strike White. White grabbed the gun and shot the plaintiff. Both Herring and Charles White corroborated Jack White’s version. The Supreme Court stated as dictum that if the plaintiff proceeded toward White with the apparent ability to inflict bodily harm, he might well be guilty of the type of intentional and willful misconduct which would preclude him from an award of benefits under Crilly v Ballou, supra. There was no decision, however, as the case was remanded so that the WCAB could clarify its opinion by stating the applicable law and facts supporting its conclusion that plaintiff was not guilty of intentional and willful misconduct.

Judge Brennan, in his partial concurrence in Chester v World Football League, 75 Mich App 455, 464; 255 NW2d 643 (1977), stated that a football player who grabbed the controller by the arm in a dispute over a paycheck when the franchise became insolvent was not exhibiting the type of gross and reprehensible act which would constitute "intentional and willful misconduct” for purpose of MCL 418.305, as construed by Crilly v Ballou, supra.

Similarly, we cannot say that Andrews’ actions in the case at bar constituted the type of "willful and wanton” misconduct which would preclude him from coverage under the standard of Crilly. This is not the type of case where a claimant arms himself with a gun, knife or block of wood and pursues a fellow employee, or an employer, with the apparent ability to inflict harm, as was the case in Federal Underwriters Exchange v Samuel, supra, or in Harrison v Tireman Bump Shop, supra. Here, Andrews and Johnson were engaged in an argument about a work slowdown. Johnson got up and pushed Andrews. Andrews responded by punching Johnson with his fist. This conduct did not involve such a degree of "moral turpitude”, which is defined as "an act of baseness, vileness, or depravity”, so as to preclude Andrews from recovery.

We therefore affirm the order of the WCAB. Costs to Andrews.

       Black’s Law Dictionary (4th ed), p 1160.


author: Per Curiam. M. F. Cavanagh, J.

text:
    PEOPLE v SANCHEZ
    Docket No. 45840.
    Submitted March 4, 1980, at Grand Rapids.
    Decided July 2, 1980.
    Abel Sanchez was convicted of carrying a concealed pistol, Kalamazoo Circuit Court, Robert L. Borsos, J. The trial court granted the defendant’s motion for a new trial and, before the new trial was held, dismissed the case on the ground that the pistol involved was inoperable and therefore did not fall within the statute prohibiting the carrying of a concealed weapon. The people appeal. Held:

    An inoperable handgun may be a "pistol” within the meaning of the concealed weapons statute; an unloaded firearm may be a "pistol” within the statute and there is no distinction between an unloaded firearm and an inoperable one.
    Reversed and remanded.
    M. F. Cavanagh, J., dissented. He would find that the distinction between an unloaded and an inoperable firearm is that an unloaded firearm is capable of being fired. The test of whether an inoperable pistol falls within the concealed weapons statute should be the facility with which the pistol may be made operable. In this case the pistol neither was capable of operating nor could it have been altered to operate within a reasonably short time. It therefore did not fall within the concealed weapons statute. Judge Cavanagh would therefore affirm the dismissal.
    Opinion of the Court
    1. Weapons — Inoperable Firearms — Pistols — Statutes.
    An inoperable handgun may be a "pistol” within the meaning of the concealed weapons statute; an unloaded firearm may be a "pistol” within the statute and there is no distinction between an unloaded firearm and an inoperable one (MCL 750.227; MSA 28.424).
    References for Points in Headnotes
    [1-3] 79 Am Jur 2d, Weapons and Firearms §§ 3, 16.
    Fact that gun was unloaded as affecting criminal responsibility for carrying gun. 79 ALR2d 1430.

       73 Am Jur 2d, Statutes § 293 et seq.

      Dissent by M. F. Cavanagh, J.
    2. Weapons — Inoperable Firearms — Unloaded Firearms.

      There is a distinction between an unloaded ñrearm and an inoperable ñrearm; an unloaded ñrearm is capable of being ñred.

    3. Weapons — Inoperable Firearms — Statutes.

      The question of whether a conviction of carrying a concealed weapon may be had where the weapon involved is an inoperable pistol should be directed toward the facility with which the pistol may be made operable; a pistol which does not meet the statutory deñnition of being capable of propelling a dangerous projectile and which cannot be altered to do so within a reasonably short time should not fall within the concealed weapons statute (MCL 8.3t, 750.227; MSA 2.212[20], 28.424).

    4. Criminal Law — Statutes — Strict Construction.

      Penal statutes are to be construed strictly and in a manner most favorable to the accused.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, and Stephen M. Wheeler, Chief Appellate Attorney, for the people.

      John V. Dughie, for defendant on appeal.
    Before: Allen, P.J., and M. F. Cavanagh and C. W. Simon, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

The defendant was convicted by a jury of carrying a concealed pistol, MCL 750.227; MSA 28.424. Prior to the submission of proofs, the parties had stipulated that the weapon involved, a pistol, was not operable.

In post-trial proceedings, the lower court first granted the defendant a new trial due to what it considered to be improper questioning and argument by the prosecutor. Later, the court dismissed the case entirely on the ground that the inoperable pistol did not "fall within the statute prohibiting the carrying of a concealed weapon”. The prosecution appeals.

The sole issue raised on appeal is whether an inoperable handgun may be a "pistol” within the meaning of the statute. We find the distinction between unloaded and inoperable firearms to be meaningless, and so are persuaded to follow the authority most directly addressing this issue: People v Jiminez, 27 Mich App 633; 183 NW2d 853 (1970), lv den 384 Mich 819 (1971).

There stands in the lower court record an order granting a new trial; that order is not affected by our decision in this appeal. The order dismissing the charges against the defendant is reversed, and the cause remanded for proceedings not inconsistent with this opinion.

M. F. Cavanagh, J.

(dissenting). I cannot agree with the majority’s assertion that the distinction between unloaded and inoperable firearms is meaningless. On the contrary, I have found the distinguishing feature to be that an unloaded weapon is capable of being fired. People v Stevens, 92 Mich App 427, 432; 285 NW2d 316 (1979).

One of the police officers who apprehended defendant testified at trial that when defendant was placed in jail he told the officer that the pistol would not fire. The police tested the pistol, and in five attempts it failed to operate. It was the officer’s opinion that the firing pin was either broken or jammed.

The remarks of the trial judge prefatory to finding that the inoperability of the pistol in this case precluded a conviction for carrying a concealed weapon clearly indicate that a variety of factual contexts were considered, but that the facts in this case necessitated dismissal of the charge. For instance, the trial judge speculated that a conviction would be appropriate under circumstances where the pistol in issue had a firing pin that was removable, and that could be replaced in seconds, making the pistol operable. But he further opined that it would be hard to distinguish a pistol, such as the one in this case, which could not be readily made operable, from a starting pistol carried to a track meet by a coach or a cap pistol left in the family car by a child. He felt that a conviction in the latter instances would not be allowable.

I agree with this reasoning. It is not my intent to prescribe a hard and fast rule that any and all inoperable pistols would bar convictions under MCL 750.227; MSA 28.424. Rather, the inquiry should be directed towards the facility with which a pistol may be made operable. Such a test is reasonably suggested by the cases referred to in the trial court’s opinion.

In People v Moceri, 294 Mich 483, 486; 293 NW 727 (1940), the pistol involved was a model whose manufacture had been discontinued some 30 years prior to its seizure. It was referred to as an obsolete model with a missing magazine that was commercially irreplaceable. Due to defendant’s argument on appeal that the pistol could not be called a weapon, the Supreme Court ordered the pistol produced and affirmed the conviction, proclaiming, "It has been examined and found capable of being fired and, according to the testimony, the pistol contained a bullet at the time of the arrest”. Moceri, 486.

Similarly, in People v Piggee, 27 Mich App 367; 183 NW2d 638 (1970), lv den 384 Mich 805 (1971), defendant was found with a disassembled sawed-off shotgun on his person, viz., the stock was detached from the barrel and firing mechanism. Apart from dismissing his arguments that a sawed-off shotgun did not fall within the proscriptions of the statute, the Court noted that, "There was testimony that it was possible to fire the weapon in the condition in which it was found, i.e., without the stock attached”. Piggee, 370.

On the other hand, the majority opinion in this case elects to follow People v Jiminez, 27 Mich App 633; 183 NW2d 853 (1970), lv den 384 Mich 819 (1971). That opinion asserted that the statutory definition of a pistol does not require the gun to be operable. It then proceeded as follows:

"The necessity of having an operable gun was decided in People v Williamson (1918), 200 Mich 342 [166 NW 917]. That case stated that the fact a pistol was unloaded does not preclude a conviction under this statute. Consequently, the fact that a pistol may be inoperable does not prevent conviction under this statute. This determination is in accord with what we wrote in People v Bailey (1968), 10 Mich App 636, 640 [160 NW 380].” Jiminez, 636.

I must respectfully disagree with that Court’s statement that the cited Williamson case disposed of the issue of a gun’s operability. In fact, in that regard, Williamson addressed only the question of whether an unloaded gun could prompt a conviction under the statute. Williamson, 349-350. There was no reference to the mechanical inoperability of the gun.

Nor do I agree with the subsequent assertion of the Jiminez quotation that their determination as to a gun’s operability is in accord with the cited Bailey case. Defendant Bailey was prosecuted under the statute for carrying a sawed-off shotgun in his car. There also, there was no argument that the weapon was inoperable. Rather, it appears that Bailey was referred to for its pronouncement that " 'Dangerous weapons’, when used in the statute, should not be narrowly construed by us”. Bailey, 640. This, I submit, is a misapplication of the cited opinion, People v Gogak, 205 Mich 260, 265; 171 NW 428 (1919), wherein the Supreme Court upheld the propriety of letting a jury decide whether a certain knife was a dangerous weapon even though knives were not specifically mentioned in the statute.

Both Gogak and Bailey, supra, stress the importance of following the intent of the Legislature in construing the statute. The latter case holds that intent to be, "* * * that weapons should not be carried where they might be used to take lives”. It also concludes that the sawed-off shotgun was "* * * obviously a man-killing weapon”. Bailey, 640. Another case further illustrates the intent of the Legislature concerning the statute, i.e., "The purpose of the concealed weapons statute was to prevent men in sudden quarrel * * * from drawing concealed weapons and using them without prior notice to their victims that they were armed”. People v Clark, 21 Mich App 712, 715-716; 176 NW2d 427 (1970).

The "pistol” taken from defendant in this case should not fall under the concealed weapons statute. It is not a firearm since it did not meet the statutory definition of being capable of propelling a dangerous projectile, MCL 8.3t; MSA 2.212(20), nor could it have been altered within a reasonably short time to do so. See also MCL 750.222; MSA 28.419 and MCL 752.841; MSA 28.436(11). It is incumbent upon this Court to construe penal statutes strictly and in a manner most favorable to the accused. People v Stevens, supra, 432 and the cases cited therein.

Accordingly, I would affirm the trial court.


text:
    HONEGGER’S & CO, INC v FROG VALLEY FARM SERVICES, INC
    Docket No. 46148.
    Submitted April 15, 1980, at Detroit.
    Decided July 2, 1980.
    Defendant Frog Valley Farm Services, Inc. was automatically dissolved for failure to file requisite annual reports. Subsequently, defendant John Wesley, an officer of the corporation, signed a promissory note in the corporation’s name for a preexisting debt owed to plaintiff. Plaintiff filed suit on the note against the corporation and John Wesley claiming, inter alia, that defendant John Wesley was personally liable on the note. Cass Circuit Court, James E. Goff, J., entered a judgment of default against defendant Frog Valley Farm Services, Inc., in favor of plaintiff and a judgment of no cause of action regarding defendant John Wesley, individually. Plaintiff appeals. Held:

    An officer does not encounter personal liability when paying the debts of his dissolved corporation, and alternatively no personal liability will attach for a corporation debt incurred prior to dissolution, where an officer of the corporation signs a promissory note for the debt in the name of the corporation subsequent to dissolution.
    Affirmed.
    1. Corporations — Dissolution — Corporate Existence — Winding Up — Debts and Liabilities — Statutes.
    A dissolved corporation continues its corporate existence and may carry on business for the purpose of winding up its affairs by paying its debts and other liabilities (MCL 450.1833; MSA 21.200 [833]).
    2. Corporations — Officers — Personal Liability — Dissolution — Debts.
    An officer does not encounter personal liability when paying the debts of his dissolved corporation.
    References for Points in Headnotes

       19 Am Jur 2d, Corporations § 1669 et seq.

       19 Am Jur 2d, Corporations §§ 1341-1343, 1650.

       11 Am Jur 2d, bills and Notes §§ 573-578.

      3. Corporations — Debts — Officers — Personal Liability — Dissolution — Promissory Notes.
    No personal liability for a corporate debt incurred prior to dissolution should attach where an officer of the corporation signs a promissory note for the debts in the name of the corporation subsequent to dissolution.

      Harrison Law Offices, P.C. (by Charles E. Herman), for plaintiff.

      William L. La Bre, for defendants.
    Before: M. F. Cavanagh, P.J., and R. M. Maher and D. F. Walsh, JJ.
   Per Curiam.

Plaintiff appeals as of right from a judgment of no cause of action denying its claim that an officer of a corporation is personally liable for monies owed on a promissory note executed after automatic dissolution of the corporation pursuant to MCL 450.1922(1); MSA 21.200(922).

The facts of the case are not in dispute. On May 15, 1978, defendant corporation was automatically dissolved for failing to file the requisite annual reports. On July 10, 1978, an officer of defendant corporation signed a promissory note for a preexisting debt in the corporation’s name. The issue to be decided is whether this officer becomes personally liable on the note.

MCL 450.1833; MSA 21.200(833) states:

"Except as a court may otherwise direct, a dissolved corporation shall continue its corporate existence but shall not carry on business except for the purpose of winding up its affairs by: * * * (c) Paying its debts and other liabilities.”

Thus, it is clear that an officer does not encounter personal liability when paying the debts of his dissolved corporation. Alternatively, this debt clearly having been incurred prior to dissolution, no personal liability therefore should attach. See Null v Biogco, Inc, 20 Mich App 220, 223; 173 NW2d 802 (1969).

Affirmed. Costs to appellee.