In Re Vaughn , 160 Mich. App. 236 ( 1987 )

160 Mich. App. 236 (1987) 408 N.W.2d 85

In re VAUGHN

Docket No. 92333.

Michigan Court of Appeals.

Decided May 1, 1987.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division Research, Training and Appeals, and Larry L. Roberts, Assistant Prosecuting Attorney, for appellee.

Sobel, Colton & Giovanni, P.C. (by Michael W. Colton), for appellant.

Before: D.E. HOLBROOK, JR., P.J., and J.H. GILLIS and C.W. SIMON,^[*] JJ.

PER CURIAM.

Following a bench trial in probate court, respondent, a minor, was found guilty of committing the offense of assault with intent to commit unarmed robbery, MCL 750.88; MSA 28.283, and possession of a short-barreled shotgun, MCL 750.224b; MSA 28.421(2). Respondent was committed to the Department of Social Services for placement.

On December 13, 1985, John Poirier was assaulted by respondent and two other youths in front of Spud's Bar on Gratiot in Detroit. Detroit police officer Dennis Griffiths observed the incident while in an unmarked car. Griffiths arrested the three youths and upon searching them discovered that each boy was concealing a part of a double-barreled, sawed-off shotgun. One boy had the butt and handle of the firing mechanism, the second had the form of the mechanism, and respondent had the barrel. The probate court concluded that since the three pieces assembled constituted a shotgun, under the aiding and abetting statute, MCL 767.39; MSA 28.979, each of the youths was guilty of possession of a short-barreled shotgun. Respondent disputes this finding on appeal on the basis that none of the boys possessed the whole shotgun but, rather, only pieces of the shotgun.

We agree with respondent's argument. Although under an aiding and abetting theory conviction of a principal is not necessary to conviction of an accessory, the prosecution must prove that the underlying crime was committed by someone and that the defendant either committed or aided and abetted the commission of that crime. People v Mann, 395 Mich. 472, 478; 236 NW2d 509 (1975); People v Brown, 120 Mich. App. 765, 770; 328 NW2d 380 (1982), lv den 417 Mich. 991 (1983); People v Paige, 131 Mich. App. 34, 39-40; 345 NW2d 639 (1983).

In the instant case, none of the youths involved possessed a short-barreled shotgun. Rather, each possessed different parts of a disassembled shotgun which, without the other parts, were incapable of firing a dangerous projectile. We note that panels of this Court have held that the operability of a weapon is irrelevant in cases where a defendant is charged with felony-firearm or carrying a concealed weapon. See, e.g., People v Poindexter, 138 Mich. App. 322, 333; 361 NW2d 346 (1984); People v Brooks, 135 Mich. App. 193, 199; 353 NW2d 118 (1984); People v Sanchez, 98 Mich. App. 562, 567; 296 NW2d 312 (1980); People v Jiminez, 27 Mich. App. 633; 183 NW2d 853 (1970). However, a shotgun is a firearm, MCL 750.222(d) and (e); MSA 28.419(d) and (e), and a firearm is statutorily defined as "any weapon from which a dangerous object may be shot or propelled." MCL 8.3t; MSA 2.212(20), MCL 752.841; MSA 28.436(11). Where, as in the instant case, a firearm is completely disassembled, and the individual parts, which are in the possession of different individuals, are alone incapable of being fired, the individual parts do not constitute "firearm[s]" within the meaning of the statute. Therefore, none of the youths could be charged with possession of one shotgun. Cf., People v Stevens, 409 Mich. 564; 297 NW2d 120 (1980).

We do not believe that we can attribute to respondent the other youths' possession of the remaining parts of the shotgun so as to impose upon him criminal liability for possession of a whole shotgun. Using an aiding and abetting theory to do so where, in fact, no underlying crime has been committed by any of the others is bootstrapping which we will not allow in this case. Accordingly, we must reverse the probate court's finding that defendant was guilty of committing the offense of possession of a short-barreled shotgun. We do note, however, that the youths could have been charged with conspiracy to possess a short-barreled shotgun. MCL 750.157a; MSA 28.354(1). We affirm the finding of guilt on the charge of assault with intent to commit unarmed robbery.

Reversed in part and affirmed in part.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.