Opinion
Docket No. 102110.
Decided February 21, 1989.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, James J. Gregart, Prosecuting Attorney, and David W. DeBack, Assistant Prosecuting Attorney, for the people.
Richard D. Stroba, P.C. (by Richard D. Stroba), for defendant.
Defendant appeals by leave granted from a circuit court order denying his motion to dismiss a concealed weapon charge. MCL 750.227; MSA 28.424. We reverse.
Following a routine traffic stop, defendant was arrested for carrying an ax handle in his auto. The ax handle was described as being approximately 16 3/4 inches in length with about 12 inches of electrical wire threaded through a hole at one end. Defendant was charged with carrying a concealed weapon in an auto contrary to MCL 750.227(1); MSA 28.424(1).
Prior to trial defendant moved to dismiss the charge claiming an ax handle is not a dangerous weapon proscribed by the statute. The trial court denied defendant's motion finding the question whether the ax handle was a dangerous weapon should be submitted to a jury.
On appeal defendant argues the charge should be dismissed because § 227(1) applies only to stabbing-type weapons. We agree on both counts.
MCL 750.227(1); MSA 28.424 provides in pertinent part:
A person shall not carry a dagger, dirk, stiletto, a double-edged nonfolding stabbing instrument of any length, or any other dangerous weapon, except a hunting knife adapted and carried as such, concealed on or about his or her person, or whether concealed or otherwise in any vehicle operated or occupied by the person, except in his or her dwelling house, place of business or on other land possessed by the person.
Relying on People v Vaines, 310 Mich. 500; 17 N.W.2d 729 (1945), and People v Brown, 406 Mich. 215; 277 N.W.2d 155 (1979), the people claim "other dangerous weapon" as used in § 227(1) means any concealed article or instrument which the carrier used, or carried for the purpose of using, as a weapon for bodily assault or defense. In contrast, citing People v Smith, 393 Mich. 432; 225 N.W.2d 165 (1975), defendant argues the rule of "ejusdem generis" limits the application of this section to the weapons enumerated and similar stabbing weapons.
We agree an analysis of these decisions is necessary to resolve the issue presented. It should be noted that, although these cases interpreted a predecessor statute, the current statute is similar in all material respects.
In Vaines the issue before the Court was whether a single folding blade knife 3 5/16 inches long was a "dangerous weapon" within the meaning of § 227(1). Reversing the conviction the Court held the knife to be an ordinary jackknife and not per se a dangerous weapon. The Court further found to be a question of fact whether an article was used or carried for the purpose of use as a weapon of assault or defense and discharged the defendant for lack of such evidence.
Thirty years later in Smith, the defendant, charged with carrying an M-1 rifle in a motor vehicle contrary to § 227(1), raised the issue whether the section proscribes the carrying of all dangerous weapons or only those of the types specified. The Court held the rule of "ejusdem generis" limited the application of § 227(1) to the weapons enumerated and similar stabbing weapons.
Four years later in Brown, the defendant was charged with carrying a machete in an auto. The issue was whether § 227(1) as interpreted by Smith imposed strict liability for the carrying of all pointed instruments which could be utilized as stabbing weapons. The Court held that Smith does not impose such strict liability. The Court further reaffirmed it's holding in Vaines and held that the prosecution must prove an instrument to be a dangerous weapon per se or an instrument used, or intended for use, as a weapon for bodily assault or defense.
Thus, when read together, we believe Vaines, Brown and Smith hold that § 227(1) applies only to stabbing type weapons and, further, find the question whether a pointed instrument is per se a dangerous weapon or one used, or intended for use, as a weapon for bodily assault or defense to be one of fact. Although the Court in Vaines may have indicated by way of dicta that any item used for the purpose of assault or defense falls within the proscription of § 227(1), the Court later, when specifically faced with the issue in Smith, limited the application of § 227(1) to only those weapons enumerated and similar stabbing weapons. This conclusion is further supported by CJI 11:1:02, Carrying a Concealed Weapon — Dangerous Weapon, and CJI 11:1:04, Definition of Dangerous Stabbing Weapon, and relevant commentary.
The dicta in Vaines, supra, arises from the Court's quotation of the language contained in People v Goolsby, 284 Mich. 375; 279 N.W. 867 (1938), a case addressing what weapons might be considered dangerous from their use under the felonious assault statute.
Defendant next argues that the determination whether the ax handle falls within the ambit of the statute is a question of law. In Vaines, Smith and Brown the Courts inferentially decided that determination is one of law. To leave such a decision to the factfinder might result in the prosecution of a person for concealed possession or carrying in a vehicle of alleged weapons such as pens, flashlights, wire or other totally innocuous items. We do not believe the Legislature intended such a result.
Defendant further claims that if § 227(1) is not restricted to stabbing type weapons then the section is constitutionally overbroad and vague as applied to defendant. In view of our holding we will not address this claim.
Since no one argues an ax handle is a stabbing weapon we reverse and dismiss the charge herein.
Reversed.