People v. Clark

180 N.W.2d 342, 24 Mich. App. 440, 1970 Mich. App. LEXIS 1735

Opinions

Quinn, J.

Defendant was tried by a jury for carrying a concealed weapon contrary to CL 1948, § 750.227 (Stat Ann 1962 Rev § 28.424) and he was convicted. His appeal raises several issues, the first of which relates to the admissibility of the weapon in evidence. Prior to trial, defendant moved to suppress the weapon and the motion was denied.

Although the trial court denied the motion to suppress on the basis of Const 1963, art 1, § 11, and defendant contends here that under Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081, 84 ALR2d 933), this section of the state constitution is unconstitutional under the United States Constitution, the facts of this case obviate decision on this issue.

The activities of three young men, including defendant, in and outside of a grocery store aroused the suspicions of a store clerk to the extent that the clerk telephoned police headquarters and requested that a patrol car be sent to the store. Notified by radio, four police officers arrived while defendant and the other two were still in the store. Defendant had his hand in his pocket, as he had had during the time he was in the store. The clerk told the police that he called them because he was afraid the three young men were going to hold him up. There had been a rash of holdups in the neighborhood.

One of the policemen requested defendant to take his hand out of his pocket. Defendant refused to do so and refused to talk with the officer. In removing defendant from the store, an altercation ensued, defendant was handcuffed and taken to the police station where the gun was found in his pocket.

Under Terry v. Ohio (1968), 392 US 1 (88 S Ct 1968, 20 L Ed 2d 889), this was a reasonable search, and even under Mapp, supra, the product of a reasonable search is admissible. Denial of the motion to suppress was proper.

Defendant claims that the trial judge interjected himself into the proceedings by questioning witnesses to the extent of exhibiting partiality to the prosecution, thus prejudicing defendant’s right to a fair trial. This claim is not supported by the record before us.

Defendant alleges that in final argument the prosecuting attorney alluded to the fact that no contrary evidence was presented by defendant, and that this was prejudicial error. Final arguments were not recorded and we have no way to determine if such a comment was made.

The next error asserted by defendant is that prejudicial error occurred when the prosecution exceeded the quantum of proof required to establish the offense with which defendant was charged. This assertion relates to proof that the weapon was operational and loaded. Such proof was irrelevant to the offense with which defendant was charged but its adduction was not reversible error. CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096).

Defendant’s final allegation of error, namely: that the prosecution must prove that defendant did not have a license to carry the weapon in any county of the state is unfounded. People v. Ramos (1969), 17 Mich App 515.

Affirmed.

O’Hara, J., concurred.