People v. Wimbush , 94 Mich. App. 152 ( 1979 )

94 Mich. App. 152 (1979) 288 N.W.2d 375

PEOPLE
v.
WIMBUSH

Docket No. 78-2722.

Michigan Court of Appeals.

Decided December 5, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Maura D. Corrigan, Assistant Prosecuting Attorney, for the people.

Hoffa, Chodak & Robiner, for defendant on appeal.

Before: J.H. GILLIS, P.J., and V.J. BRENNAN and MacKENZIE, JJ.

V.J. BRENNAN, J.

Defendant, Dennis Wimbush, pled guilty to charges of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant appeals of right the felony-firearm conviction.

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 NW2d 793 (1979).

The second issue is one which has divided different panels of this Court. Cf., People v Powell, 90 Mich. App. 273; 282 NW2d 803 (1979), and People v Perry, 92 Mich. App. 732; 285 NW2d 217 (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 language in either the felony-firearm statute or the aider and abettor statute which limits the application of one to the other. People v Tavolacci, 88 Mich. App. 470; 276 NW2d 919 (1979). Further, the aider and abettor statute has been previously applied to possessory crimes. People v Doemer, 35 Mich. App. 149; 192 NW2d 330 (1971).

Defendant's conviction under MCL 750.227b; MSA 28.424(2) is affirmed.