Opinion
Docket No. 100390.
Decided February 1, 1988.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and Marilyn A. Eisenbraun, Assistant Prosecuting Attorney, for the people.
Washtenaw County Public Defender (by Craig J. Pollard), for defendant on appeal.
Defendant was arrested on October 25, 1985, by a Washtenaw County sheriff's deputy and charged with carrying a weapon in a motor vehicle, MCL 750.227; MSA 28.424. The weapon was a pellet pistol, Crosman brand, with a rifled barrel, and was loaded with pellets. Preliminary examination was held in early May, 1986, in district court. The district judge held that the pistol was not a firearm and dismissed the case on June 25, 1986. The people appealed and Washtenaw Circuit Judge William F. Ager, Jr., reversed and reinstated the charge by opinion of March 25, 1987, and order of April 16, 1987. We affirm.
The only issue on appeal is whether the .177 calibre pistol, with a rifled barrel as opposed to a smooth bore barrel, is a firearm for purposes of the statute. "Firearm" is defined by statute:
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. [MCL 8.3t; MSA 2.212(20).][]
Although there is one other statutory definition of firearm, MCL 752.841; MSA 28.436(11), that definition applies only to offenses involving injury by discharge of a firearm.
Circuit Judge Ager concluded that in order to be excepted from the statute a weapon had to: (1) have a smooth bore barrel, (2) be designed and manufactured exclusively for propelling BB'S, and (3) not exceed .177 calibre. Since the weapon in question did not fall within the exception because it was not a smooth bore weapon and because it was a pistol designed primarily for shooting pellets and not exclusively for shooting BB'S, Judge Ager concluded it was a firearm and reinstated the charge against defendant. Judge Ager noted that the purpose behind the concealed weapons statute was to prohibit the possession of dangerous weapons. Judge Ager stated that a 1959 amendment to the statute, more specifically identifying the exception to the statute, furthered the policy. A gun with a rifled barrel has grooves along the inside of the barrel which puts a spin on the projectile increasing its distance and accuracy. A smooth bore weapon does not put such a spin on the projectile, he reasoned. Furthermore, he noted that a BB is smaller than a pellet and round. A pellet has a pointed end, similar to a bullet, and can travel farther than the perfectly round BB, thus increasing its dangerousness. We affirm both his reasoning and result. In interpreting a statute the rule of ordinary usage and common sense must be applied. People v Mankel, 373 Mich. 509, 512; 129 N.W.2d 894 (1964). MCL 8.3t; MSA 2.212(20) defines a firearm and sets forth, in plain language, an exception. In this case, the weapon did not fall within the language of the exception.
Defendant argued below and now on appeal that the case is controlled by People v Gee, 97 Mich. App. 422; 296 N.W.2d 52 (1980). In Gee the defendant pled guilty to armed robbery and possession of a firearm during the commission of a felony. He used a pellet rifle in the robbery and the trial court accepted his plea on the felony-firearm charge based on his use of the pellet rifle. On appeal this Court held:
Whether a pellet gun is a firearm, under this definition, then, depends on the size of the projectile it propels. The record provides no assistance in this determination. The plea-taking court merely equated pellet gun with firearm and accepted defendant's plea. We choose not to follow this line of reasoning. Instead, we remand this cause for further fact finding upon this question. If defendant's pellet gun did, indeed, fire a projectile exceeding .177 calibre, his felony-firearm conviction shall be affirmed. If not, the conviction shall be vacated. We leave further development of this question to the trial court and do not retain jurisdiction. [ Gee, 424.]
We take this holding to mean that, if the weapon in Gee fell within the exception because of its smaller calibre, the weapon would not be considered a firearm and therefore it would be improper to enter defendant's felony-firearm conviction. The Gee holding is not inconsistent with our holding here. The Gee Court concluded that it did not have sufficient facts to determine whether the weapon met the exception. In this case, it is clear from the facts that the weapon does not meet the elements of the exception. We therefore affirm the circuit court's reinstatement of the charge.
Affirmed.