Opinion
Docket No. 78-1875.
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.
Daniel J. Blank, for defendant.
Before: BASHARA, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.
The people appeal from an order of the Detroit Recorder's Court dismissing two counts of possessing a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2).
Two issues are presented on appeal: (1) whether the felony-firearm statute is constitutional, and (2) whether one not in actual possession of a firearm may aid and abet a person who violates the felony-firearm statute.
The Supreme Court has recently disposed of the first issue, upholding the constitutionality of the felony-firearm statute in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979).
The second issue is one which has divided two panels of this Court. Compare People v Powell, 90 Mich. App. 273; 282 N.W.2d 803 (1979), and People v Tavolacci, 88 Mich. App. 470; 276 N.W.2d 919 (1979).
It is our opinion that the proper application of the aiding and abetting statute, MCL 767.39; MSA 28.979, to the felony-firearm statute requires us to hold that one not in actual possession of a firearm may be charged with aiding and abetting one who does possess a firearm.
The felony-firearm statute requires that a person carry or have in his possession a firearm at the time he commits or attempts to commit a felony.
The aider and abettor statute provides that:
"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense."
There is no langauge in either the felony-firearm statute or the aider and abettor statute which limits the application of one to the other. People v Tavolacci, supra. Further, the aider and abettor statute has been applied previously to possessory crimes. People v Doemer, 35 Mich. App. 149; 192 N.W.2d 330 (1971).
We therefore reinstate the charges brought under MCL 750.227b; MSA 28.424(2).
Reversed and remanded.