People v. Butler

Williams, J.

(dissenting). There are two issues in this case. The first is whether a jury properly rendered a verdict of guilty under MCL 750.227; MSA 28.424, for carrying "a pistol concealed on or *400about his person, or, whether concealed or otherwise, in a vehicle operated or occupied by him”. The jury must have found beyond a reasonable doubt that there was a pistol on the floor of the vehicle a short distance from the defendant owner who had been operating the vehicle and who knew the pistol was in the car. The second issue is whether the trial judge gave adequate jury instructions covering the elements of the offense. We hold that the facts showed a violation of the statute and that the trial judge did not err in giving his instructions. We affirm the Court of Appeals affirmation of the trial court.

I. Facts

Belton Butler and a companion, Victoria McLoud, 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.

In the Butler trial, the officer testified that a witness told him that the gun found in the automobile looked "like the gun that he [Butler] had” on the day before his arrest. 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, Victo*401ria 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The Court of Appeals affirmed in an unpublished opinion. We affirm.

II. Carrying in a Vehicle Operated

A fair inference from the facts recited above is that the police stopped a car carrying the defendant owner-driver, his passenger companion, and a gun on the floor a short distance from the driver. Since the car belonged to defendant and he was driving it, one must logically conclude that he was carrying the pistol in the vehicle just as one must conclude that a man driving a car carrying a load of hay was carrying a load of hay in the vehicle.

However, the mere act of carrying a pistol in a vehicle is not sufficient to come within the proscription of the statute. There must be criminal intent. Therefore, the defendant must have knowingly carried the pistol in the vehicle. Defendant testified that he,had no knowledge that the gun was in the vehicle and that he had not had prior possession of it. However, the prosecution produced evidence that the gun looked like the gun that defendant had had in his possession the day before and that defendant had admitted that the gun was in the vehicle. From the jury’s verdict, it is obvious that it believed the prosecution.

We must conclude, then, that the operative facts *402in this case are that the defendant knowingly carried a pistol in his vehicle which he was operating. There is no question but that in driving the car carrying the pistol defendant participated in carrying the pistol. We must conclude further that such facts come within the proscription of MCL 750.227; MSA 28.424 providing that a person shall be guilty of a felony "who shall carry a pistol * * * in a vehicle operated * * . * by him”.

This conclusion is reinforced by close examination of the pertinent statutory language:

"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”.

The Legislature must be credited with careful and purposeful use of language. The contrasting wordage of the clause "concealed on or about his person” with the succeeding clause "whether concealed or otherwise, in a vehicle operated or occupied by him” is therefore significant. The Legislature, by the choice of these words, was clearly contrasting "concealed” with "concealed or otherwise”, and "on or about his person” with "in a vehicle”. This contrast clearly indicates a much looser nexus between the defendant in the "in a vehicle” phrase than in the "on or about his person” phrase. However, in the instant case, the facts establish a substantial nexus, because the pistol was in the car on the floorboard between defendant’s feet.

This decision is obviously limited to the person who "operated” the vehicle. We are not required to, and we do not, decide whether the proscription of the statute under these facts would apply to a *403person who "occupied” the vehicle other than as the operator.

III. Correctness of Jury Instructions

The second issue in this case is the correctness of the jury instructions. The applicable instructions follow:

"Now, in this case the defendant, Belton Butler, is charged in an information brought by the people of the State of Michigan which alleges that on the 28th day of January, 1976, at John R and Chandler, City of Highland Park, the defendant did then and there carry a pistol, to wit, a .32 caliber, blue steel revolver, seven shot Regent, serial G06594, in a certain vehicle operated or occupied by the defendant, to wit, a Chrysler Imperial bearing 1975 Michigan license number TRK 367, at the above location, which was not a dwelling house or place of business or other land possessed by said defendant without a license to carry the pistol contrary to the statute.

"In other words, the charge is carrying a pistol in a motor vehicle, and to this charge the defendant has pleaded not guilty. Of course it is up to you, ladies and gentlemen, out of these instructions to resolve that issue.

"Now, the 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 that a person who shall carry 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.

*404"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 the defendant, and the knowledge of the defendant that the pistol was in the vehicle. In other words, it must be proved, each of those 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 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 added.)

Defendant objects that the judge did not instruct the jury on all the elements of the crime of MCL 750.227; MSA 28.424 in that he failed to specify that he had' to carry a pistol in a vehicle. This argument is based on the fact the word "carry” does not appear in the last two paragraphs of the charge quoted above. Defendant’s argument is accurate as far as it goes, but it fails to recognize the instructions as a whole. The first and third of the five quoted paragraphs set forth the charge in the language of the statute which clearly indicates that the principal element, in fact the gravamen, of the crime is carrying a pistol in a vehicle operated by the defendant. The second quoted paragraph particularly emphasizes the carrying element on the charge in such a way that the jury could not fail to understand the importance and necessity of the carrying element.

As a consequence, since the instructions included a reading of the charge with the applicable statutory language, People v Kruper, 340 Mich 114, 122-123; 64 NW2d 629 (1954), and emphasized the carrying element in the first, second and third paragraphs, and because the instructions when taken as a whole clearly informed the jury of all the elements, People v Dye, 356 Mich 271, 279; 96 *405NW2d 788 (1959), cert den 361 US 935; 80 S Ct 367; 4 L Ed 2d 355 (1960), we cannot hold that the trial judge and Court of Appeals erred.

Conclusion

We hold that the facts that the defendant drove his car in which a pistol was carried and that he knew that the pistol was in the car come within the proscription of MCL 750.277; MSA 28.424. We further hold that the trial court did not err in instructing the jury. The instructions, although not as artful as they might have been, adequately informed the jury of the elements of the crime.

Coleman, C.J., concurred with Williams, J.