People v. Lane , 102 Mich. App. 11 ( 1980 )

102 Mich. App. 11 (1980) 300 N.W.2d 717

PEOPLE
v.
LANE

Docket No. 43499.

Michigan Court of Appeals.

Decided November 21, 1980.

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

Salisbury, Ciampa & Franco, for defendant.

Before: R.M. MAHER, P.J., and BRONSON and T.C. QUINN,^[*] JJ.

PER CURIAM.

Defendant was convicted, after a jury trial, of carrying a concealed weapon (CCW). MCL 750.227; MSA 28.424. He was sentenced to a prison term of from two and one-half to five years and appeals by right.

The testimony at trial revealed that around 3:30 in the morning of June 12, 1978, the employees of a doughnut shop in Livonia observed a green station wagon circling the building. The car eventually parked, and the defendant approached the shop. One of the employees phoned the police, as the defendant entered the shop and asked for a glass of water. One of the employees also noticed a lump or bulge at the side of the defendant's pants. The police arrived within minutes and observed what appeared to be the wooden handle of a gun in the defendant's waistband. The defendant was arrested, and a gun was seized. One of the officers testified that the defendant stated he had consumed two or three drinks earlier in the evening, although the officer indicated he did not smell intoxicants on the defendant.

At trial, the defendant expressed his intention to offer witnesses in support of an intoxication defense. The prosecution objected to such a defense, and the trial court ruled that intoxication was not an available defense to the crime charged. Because intoxication is only a defense to a specific intent crime, People v Crittle, 390 Mich. 367; 212 NW2d 196 (1973), People v Stanton, 97 Mich. App. 453; 296 NW2d 70 (1980), the question at the heart of this issue is whether the offense of carrying a concealed weapon is a specific intent crime.

The statute itself makes no reference to a specific intent.^[1] The judiciary, however, has read into the statute an element of knowledge. People v Petro, 342 Mich. 299; 70 NW2d 69 (1955), People v Balog, 56 Mich. App. 624; 224 NW2d 725 (1974). Such an element is necessary to save the statute from unconstitutional overbreadth. See People v Balog, supra, 626. The trial court properly instructed the jury on this point, placing the burden on the prosecution to prove that the defendant knowingly carried the pistol. We do not believe, however, that this element of knowledge is the same as a specific intent. It rather reflects the general criminal intent necessary in most crimes. The statute itself does not make any sort of intent necessary for conviction. The purpose of the element of knowledge is to limit the statute's application to knowing, rather than innocent, violations of the statute's provisions. For example, without an implied element of knowledge, a passenger in a car in which a weapon is carried could be convicted under the express terms of the statute without a showing that he knew the weapon was present. In a case of personal possession, the knowledge element may be shown from the fact that a defendant had a pistol on his person concealed in a purposeful manner. People v Wade, 23 Mich. App. 132; 178 NW2d 139 (1970), lv den 384 Mich. 758 (1970). We also note that other firearm offenses do require a specific intent beyond general criminal intent in a manner in which the CCW statute does not. See MCL 750.226; MSA 28.423, People v Davenport, 89 Mich. App. 678; 282 NW2d 179 (1979). Because intoxication is not a defense to the sort of general criminal intent which the knowledge element of the CCW statute reflects, we find no error in the trial court's refusal to allow testimony on the issue of intoxication.

Defendant also argues that the trial court erred in refusing to instruct the jury on the offense of possession of a firearm while intoxicated, MCL 750.237; MSA 28.434.^[2] In People v Chamblis, 395 Mich. 408, 429; 236 NW2d 473 (1975), the Supreme Court held:

"We are establishing a rule today, as a matter of policy, limiting the extent of compromise allowable to a jury in deciding whether to convict of a lesser included offense. In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less."

This rule is applicable to the instant case as the charged offense carries a five-year maximum and the possession while intoxicated offense is a misdemeanor. While the Supreme Court has modified the rule in cases where the only difference between the two offenses is value, People v Miller, 406 Mich. 244; 277 NW2d 630 (1979), and while the rule has been subject to criticism, see People v Joeseype Johnson, 407 Mich. 196, 274; 284 NW2d 718 (1979) (LEVIN, J., dissenting), People v Vasher, 97 Mich. App. 372; 296 NW2d 30 (1980), it remains controlling in the instant case.

Although the record on appeal reveals the tragic personal circumstances of defendant's life at the time of the charged offense, we agree with the prosecutor that such circumstances are relevant only to sentencing. Having found no error, the defendant's conviction is affirmed.

Affirmed.

NOTES

[*] Former Court of Appeals Judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] "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 $2,500.00."

[2] "Any person under the influence of intoxicating liquor or any exhilarating or stupefying drug who shall carry, have in possession or under control, or use in any manner or discharge any fire-arm within this state, shall be guilty of a misdemeanor." MCL 750.237; MSA 28.434.