People v. Butler

Levin, J.

Belton Butler was convicted of carrying a concealed weapon.1 The people’s evidence tended to show that he was riding in an automobile in which a revolver was found. The judge, in instructing the jury, stated the pertinent language of the statute making it an offense to "carry a pistol whether concealed or otherwise, in a vehicle operated or occupied by” the defendant. He said that the elements of the offense were that there was a pistol in the automobile, that Butler owned or operated the automobile, and, that he knew that the weapon was in the automobile. He did not, however, instruct that "carrying” the weapon was an element of the offense.

We hold that the failure to so instruct requires a new trial and reverse and remand therefor.

I

Belton Butler and a companion, Victoria Mc*382Loud, were arrested after two police officers stopped Butler’s automobile as he was driving in Highland Park, Michigan. The police had earlier received a report linking Butler’s automobile to an armed robbery and rape committed the previous day and had placed the automobile under surveillance. An officer testified that after the police stopped the automobile and Butler and his companion complied with an order to leave the automobile, he noticed a revolver resting on the automobile’s floorboard a short distance from the driver’s seat. Butler and his companion were arrested and charged with carrying a concealed weapon.

The officer acknowledged on cross-examination that he had not seen Butler in actual possession of the revolver. This factual gap was bridged by the person who made the report which led to surveillance of Butler’s automobile. That person testified that on the day before Butler’s arrest, he saw him with a "snub-nose” gun identical to the one found in the automobile. The prosecution also introduced a statement made by Butler in which he admitted that he knew the revolver was in the automobile but asserted that his companion, Victoria McLoud, had brought the gun into the automobile and that "she was the one who had the gun”.

At the trial, Butler, the only witness called by the defense, denied knowledge of the gun’s presence in the automobile or any previous possession of the gun.

The trial judge instructed the jury:

"Now, defendant in this case is charged under a statute or a law of the State of Michigan which says insofar as pertinent to this case the person who shall *383carry a pistol whether concealed or otherwise in a vehicle operated or occupied by him, except in his dwelling house or place of business or other land possessed by him without a license to carry the pistol as provided by law, shall be guilty of a felony.

"In other words, the elements of the offense which are very simple, are, number one, that there was a pistol in the motor vehicle which was owned or operated by the defendant, and second, that the defendant knew there was a pistol in the motor vehicle.

"It does not have to be concealed in the vehicle. The elements are the existence of the pistol in the vehicle owned or operated by defendant, and the knowledge of the defendant that the pistol was in the vehicle. In other words, it must be proved, each of these elements must be proved beyond a reasonable doubt that the pistol was in the vehicle, that the vehicle was owned or operated or occupied by the defendant, and the third, that the defendant knew that the pistol was in the vehicle. Those are the elements of the offense. So it is not a complicated offense in any way, as you can see.” (Emphasis supplied.)

The Court of Appeals affirmed in an unpublished opinion. We reverse because the jury was not instructed on an essential element of the offense.

II

The parties disagree concerning the description of the crime of carrying a concealed weapon which would satisfy a trial court’s obligation to charge a jury. The people contend that the elements are that there was a weapon in a vehicle operated or occupied by the defendant and that he knew or was aware of its presence. Butler, who does not contest the legal sufficiency of the evidence against him, contends that such an instruction omits an element of the offense in that a defendant’s knowledge that there is a pistol in an automobile and *384his mere presence in the automobile are not enough. Butler contends that the people must prove, and therefore the trial court must instruct, that no offense is committed unless the defendant "carried” the pistol. We agree.

The statute provides that a "person who shall carry a pistol * * * whether concealed or otherwise, in a vehicle operated or occupied by him” shall be guilty of a felony.2

The language of the statute is unequivocal. The offense is not committed unless the defendant "carries” the forbidden instrument. The normal and ordinary meaning of this word requires something more than the potentially fortuitous intersection of presence and knowledge. Given the wording of the statute and the absence of any evidence that the Legislature did not intend "carrying” to be an independent element of the offense, a court would not be justified in reading this word out of the statute.3

A central tenet of the criminal law is that "guilt is personal”.4 An instruction that the accused can be found guilty only if the jury finds that he was *385carrying a weapon comports with this traditional conception of criminal responsibility. Under the instruction given, which omitted specific reference to carrying as an element, an accused could be convicted if he knew that there was a weapon in direct proximity to him even though he may have had no physical contact with the weapon and no knowledge of its presence in the vehicle until shortly before his arrest.

Reading "carrying” out of the statute would risk the conviction of innocents whose only real crime was the proverbial one of being in the wrong place at the wrong time. The criminal law, however, punishes misdeeds, not misjudgment. An accused must author his own guilt. It cannot be ghostwritten by others. The statutory prerequisite that a defendant "carry” a weapon before guilt attaches implements an important principle of the criminal law that should not be yielded except upon truly compelling evidence of a legislative purpose to punish without regard to complicity.5

We adopt the analysis of Justice Fitzgerald, writing for the Court of Appeals, in People v Jerome I Smith, 21 Mich App 717, 722; 176 NW2d 430 (1970):

"The concealed weapons statute does not punish presence in a car where the pistol was found. The statute’s thrust is 'carrying concealed weapons without a license’. In other words, the point of the statute is to punish 'carrying’. Thus, to convict one who is merely present in a car necessarily rests upon two inferences: (a) an inference that he knows a pistol is present; and (b) an inference that he is carrying the pistol. Therefore, even by showing that someone knew a pistol was *386present should not lead automatically to a conclusion that he was 'carrying’ the pistol.”

Ill

The people contend that a review of the "totality of circumstances” indicates that, even if a judge must instruct separately on "carrying” as an element of the offense, the elements of the offense were effectively communicated to the jury. These circumstances include: (1) the judge’s reading of both the information and the pertinent provision of the statute defining the offense, (2) the judge’s statement of the defense theory that the defendant "was not carrying the pistol and that he did not know of its presence in the vehicle”, and (3) the references in counsel’s closing argument to the "carrying” element.

We conclude that these circumstances, neither separately nor in conjunction, supply an effective antidote for a charge which three times stated that the defendant’s knowledge that the pistol was in the vehicle suffices.

The judge’s obligation to instruct the jury regarding the law is not discharged unless he instructs correctly regarding the elements of the offense.6 Though some might say the need for correct instruction by the judge is self-evident, the policies supporting this rule of law deserve emphasis.

The people have an obligation to prove all the *387elements of a crime beyond a reasonable doubt.7 If a judge may omit an instruction concerning a necessary element, the people are permitted to circumvent this burden of persuasion. A factual determination entrusted solely to the jury may be effectively taken from it and decided adversely to the defendant, even though the people have failed to meet its evidentiary burden.

A judge’s incorrect recitation of the law undermines the purpose of jury instructions. Rather than conforming the jury’s factfinding to the law, an incorrect instruction poses the unacceptable risk of convicting a defendant of a crime unknown to the laws of Michigan. It is not, therefore, surprising that this Court will scrutinize the don-tested instruction closely and, upon finding that a judge failed to inform a jury of the true nature of the offense charged, will not countenance claims of "harmless error” but will reverse. People v Reed, 393 Mich 342, 351; 224 NW2d 867 (1975).

This Court has frequently said that a charge to a jury should be viewed in its entirety to determine whether asserted error is prejudicial.8 But it has not adhered to a "totality of circumstances” doctrine which would permit the comments of those other than the judge to remedy a defective charge. The argued-for approach places too much faith in what is said as opposed to the credibility of the person who says it. When counsel correctly states the law in closing argument and the bench follows with an erroneous charge, is it more accurate to say that the former cures the latter or that the jury faces a conflict? And if a jury must choose, can it seriously be maintained that a jury *388will repose its confidence in an advocate rather than a detached referee?

The probable curative effect of counsel’s remarks is further diminished in the context of the charge at issue. As is common practice, the judge insisted that his instructions on the law were definitive. The people’s position is predicated on an assumption that the jury disobeyed the judge’s admonition. Regardless of whether counsel’s remarks adequately explain the offense, we are unwilling to look beyond the instructions actually given for circumstances which might ameliorate their effect.

The people urge that People v Noyes, 328 Mich 207, 210; 43 NW2d 331 (1950), establishes that the omission of an element of a crime is not error if the relevant statute containing reference to the element is read to the jury. Though this was indeed the result in Noyes, the only justification there offered are two conclusory sentences which dispose of the case at hand but provide no rule for future cases. This Court has not subsequently relied on Noyes as holding that the quotation of the relevant statute will invariably remedy an otherwise misleading charge. Rather a more searching inquiry has been conducted to assess if the charge taken in its entirety is "fair and sufficiently comprehensive”, People v Kruper, 340 Mich 114, 122-123; 64 NW2d 629 (1954).

The fairness of a jury charge cannot be assessed in a purely mechanical manner.9 Juries are not *389steeped in the law. They do not methodically parse statutes to discern their meaning. Though the quotation of the statute may in theory place all the elements of a crime before the jury, such a recitation may be ignored in favor of the judge’s subsequent and oftentimes more colloquial explanation of the offense.

We are unable to conclude that the judge effectively communicated the element of "carrying” to the jury. While the word "carrying” was mentioned several times in the judge’s charge, its legal significance was never explained to the jury. Moreover, the judge’s explanation of the necessary elements of the offense was calculated to divert the jury from attending to the legal significance of "carrying”. Three times the judge repeated the necessary elements of the offense and on each occasion made no mention of the people’s obligation to prove or of the need for the jury to find the "carrying” of the weapon. A reasonable juror could have concluded that a conviction need not be predicated upon proof or a finding of "carrying”, and that the word was merely a shorthand reference to the other elements instructed upon and not itself a separate element.10 We conclude that the judge did not adequately discharge his obligation to instruct the jury regarding the applicable law of the case._

*390Our insistence on a proper charge does not stem from an overdeveloped sense of procedural nicety. In the instant case there was evidence which, if believed, would have negated the element of "carrying” and may have led to an acquittal.

IV

Though we have decided that the people must prove that the defendant carried the pistol and that the jury must be separately instructed on that element of the offense, the exact contours of this requirement necessarily remain unsettled, left to await the exacting discipline of future cases which directly present the question.11

Reversed and remanded for a new trial.

*391Kavanagh, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Levin, J.

"A person who shall carry a dagger, dirk, stiletto, or other dangerous weapon except hunting knives adapted and carried as such, concealed on or about his person, or whether concealed or otherwise in any vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him; and a person who shall carry a pistol concealed on or about his person, or, whether concealed or otherwise, in a vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to carry the pistol as provided by law or if licensed, carrying in a place or manner inconsistent with any restrictions upon such license, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than $2,500.” MCL 750.227; MSA 28.424.

Id.

The people cite Michigan decisions to support their contention that instructions on the element of “carrying” or participation in the act of carrying are not required. Some have dealt with the legal sufficiency of evidence necessary to convict, People v Moceri, 294 Mich 483; 293 NW 727 (1940); People v Little, 58 Mich App 12; 226 NW2d 735 (1975), others with instructional omissions unrelated to those at issue, People v Henderson, 45 Mich App 511; 206 NW2d 771 (1973), aff'd 391 Mich 612; 218 NW2d 2 (1974). None provide guidance in the present case.

See People v Germaine, 234 Mich 623, 627; 208 NW 705, 706 (1926): "Felonious possession of intoxicating liquor involves more than mere knowledge that the owner and driver of an automobile in which one is riding by invitation has liquor in the car.” Cf. People v Burrel, 253 Mich 321; 235 NW 170 (1931).

Cf. Morissette v United States, 342 US 246; 72 S Ct 240; 96 L Ed 288 (1952).

See People v Liggett, 378 Mich 706, 714; 148 NW2d 784 (1967); People v MacPherson, 323 Mich 438; 35 NW2d 376 (1949); People v Kanar, 314 Mich 242, 254; 22 NW2d 359 (1946).

See People v Rios, 386 Mich 172; 191 NW2d 297 (1971).

See People v Schwitzke, 316 Mich 182, 184; 25 NW2d 160 (1946).

It is accepted, in jurisdictions other than Michigan, that reading the information or statute does not alone make for an adequate instruction on the elements of an offense, and that the adequacy of the instruction depends on the charge as a whole. See United States v Harris, 346 F2d 182, 184 (CA 4, 1965); United States v Hernandez, 290 F2d 86 (CA 2, 1961) (failure to go beyond general language of *389statute and define or explain meaning of "possession” was reversible error); People v Henderson, 25 Cal App 3d 371; 101 Cal Rptr 129 (1972); State v Kimbrough, 109 NJ Super 57; 262 A2d 232 (1970) (failure to instruct regarding distinction between passenger and driver with respect to meaning of possession of stolen article is reversible error); People v Zurita, 76 AD2d 871; 428 NYS2d 495 (1980).

For an expression of doubt that a general instruction can ever cure a misleading specific one where there is no rhetorical inconsistency between the two, see Sandstrom v Montana, 442 US 510, 518, fn 7; 99 S Ct 2450; 61 L Ed 2d 39 (1979).

Other jurisdictions have dealt with what it means to carry a weapon in a motor vehicle. See, generally, Anno: Offense of carrying concealed weapon as affected by manner of carrying or place of concealment, 43 ALR2d 492.

The case law indicates that the concepts of “carrying” and "possession” have much in common. See State v Benevides, 425 A2d 77 (RI, 1981), which states that a defendant carries a weapon when he exercises some element of intentional control or dominion over it. Most jurisdictions have held that this control need not amount to "actual possession” but that it encompasses "constructive possession” of the forbidden instrument as well. See Brown v United States, 58 US App DC 311; 30 F2d 474 (1929).

Hard and fast rules regarding what circumstantial evidence is sufficient to sustain a conviction of carrying a weapon in a motor vehicle have not evolved. The decisions have, however, emphasized the relevancy of the following factors either alone or in combination: (1) the accessibility or proximity of the weapon to the person of the defendant, (2) defendant’s awareness that the weapon was in the motor vehicle, (3) defendant’s possession of items that connect him to the weapon, such as ammunition, (4) defendant’s ownership or operation of the vehicle, and (5) the length of time during which defendant drove or occupied the vehicle. See State v Miller, 238 Or 411; 395 P2d 159 (1964); Commonwealth v Whitman, 199 Pa Super 631; 186 A2d 632 (1963); People v Davis, 157 Cal App 2d 33; 320 P2d 88 (1958); Waterstaat v United States, 252 A2d 507 (DC App, 1969); Commonwealth v Collins, 81 Mass App 624; 417 NE2d 994 (1981).

We do not wish to be understood, by reference to the foregoing factors, as expressing any view with regard to their relevancy or importance.