People v. Lynch

301 N.W.2d 796, 410 Mich. 343, 1981 Mich. LEXIS 237

• Court: Michigan Supreme Court
• Decided: February 23, 1981
• Docket: 63061, (Calendar No. 4)
• Status: Published

Opinions

Levin, J.

Lynch was charged with possession of a gas-ejecting device.¹ He was convicted on his plea of guilty to the reduced charge of attempting to carry a gas-ejecting device.

The Court of Appeals, applying the vagueness test outlined in People v Howell,2 accepted Lynch’s argument that the statute was unconstitutionally vague and overbroad and vacated his conviction, saying:

"Thus, by its failure to sufficiently distinguish between legal (such as a can of hairspray or deodorant) and illegal gas-ejecting devices, the statute does not provide sufficient notice as to what conduct is prohibited. Further, * * * it permits too broad a judgment as to what behavior falls within the ambit of the law’s coverage.”³

It said that the statute was not susceptible to a limiting construction and could be saved only by the legislative addition of a specific intent requirement.

We reverse the Court of Appeals. The statute clearly reaches gas-ejecting weapons such as Lynch attempted to carry, and thus the statute is not unconstitutionally vague as applied to him.⁴

I

The prosecutor contends that Lynch is precluded from challenging the statute on vagueness grounds because he failed to raise the issue in Recorder’s Court, and that Lynch does not have standing to assert the overbreadth of the statute in reaching innocent gas-ejecting devices because he was not carrying such an innocent device.

A

While generally a question may not be raised for the first time on appeal, this rule is not inflexible.⁵ The question of the statute’s vagueness was the primary issue addressed and briefed both in the Court of Appeals and in this Court. The record provides an adequate basis for decision.⁶ Conflicting decisions in the Court of Appeals on this question have rendered the statute of uncertain validity.⁷ Law-abiding citizens may wish to carry gas-ejecting devices for reasons of personal security, yet cannot know whether they may do so under the present state of the law.⁸_

B

As noted in People v Howell,⁹ "vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand”. Due regard for principles of standing, and recognition that declaring a statute unconstitutional is "'the gravest and most delicate duty that this Court is called on to perform’ ”,¹⁰ mandate that, outside the context of the First Amendment,

"one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.”¹¹

Lynch thus will not be heard to assert that the statute is overbroad in reaching innocent gas-ejecting devices where the facts on which he was convicted show that he was carrying a gas-ejecting weapon and, as discussed below, the statute clearly reaches such conduct.¹²_

II

While the statute by its terms appears to reach gas-ejecting weapons, a thorough discussion of the meaning of the statute is appropriate in light of the Court of Appeals holding that the statute is not susceptible to a limiting construction and the conflict among different Court of Appeals panels regarding the statute’s constitutionality.

The statute in effect at the time Lynch was charged provided:¹³

"Any person who shall manufacture, sell, offer for sale or possess any machine gun or firearm which shoots or is designed to shoot automatically more than 1 shot without manual reloading, by a single function of the trigger, or any muffler, silencer or device for deadening or muffling the sound of a discharged firearm, or any bomb, or bomb shell, blackjack, slung shot, billy, metallic knuckles, sand club, sand bag, or bludgeon or any gas ejecting device, weapon, cartridge, container or contrivance designed or equipped for or capable of ejecting any gas which will either temporarily or permanently disable, incapacitate, injure or harm any person with whom it comes in contact, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years or by a fine of not more than $2,500.00.” MCL 750.224; MSA 28.421.

The italicized language was added by a 1929 amendment. 1929 PA 206.

A literal construction of the gas-ejecting-device language, independent of the statutory context, would cover any device capable of emitting a gas that would temporarily harm a person. It has long been the rule in Michigan, however, that a literal construction ought not to be given where it is contrary to the apparent intent of the Legislature.¹⁴

"The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense were they intended to be understood or what understanding do they convey as used in the particular act.”¹⁵

Applying the rule of noscitur a sociis, that "[t]he meaning of a word is or may be known from the accompanying words”,¹⁶ we note that the language at issue is included in a statute dealing with such items as machine guns, bombs, blackjacks, metallic knuckles, billies and bludgeons. The objects in this class are not only exclusively weapons, but are weapons used almost exclusively in perpetration of crime. Finding the language at issue in a statute dealing with such a narrow class of weapons is a strong indication that the Legislature intended to reach only gas-ejecting weapons.

This impression is bolstered by examining related statutes.¹⁷ When the Legislature amended the statute to include the language dealing with gas-ejecting devices, it was faced with the choice of including it in 1927 PA 372, § 3, which made the manufacture, sale or possession of the listed objects a strict-liability offense, or in § 4, which required an intent to use the objects there listed "unlawfully against the person of another”. MCL 750.226; MSA 28.423. The Legislature chose to include the language in the section making possession a strict-liability offense. Its choice indicates that it thought of gas-ejecting devices not only as weapons, but as weapons of such danger as to merit their prohibition regardless of the intent of the possessor.

Further, the title to the 1929 statute adding the gas-ejecting-device language indicates that the Legislature was concerned with weapons:¹⁸

"An Act to regulate and license the selling, purchasing, possessing and carrying of certain firearms; to prohibit the buying, selling or carrying of certain firearms without a license therefor; to prohibit the possession, manufacture or sale of certain weapons, including gas ejecting or emitting weapons, and attachments, except by certain persons licensed to manufacture, sell or possess any gas ejecting or emitting weapon, cartridge or device * * *.”¹⁹ (Emphasis supplied.)

Contemporaneous construction of the statute is also of assistance. A 1931 decision, People v Brown,20 considered a constitutional challenge to the statute. While that challenge was based on the right to bear arms and was asserted by a defendant convicted of carrying a blackjack, this Court found it necessary to assess the nature of the items which the Legislature intended to prohibit to decide whether the provision was within the police power of the state. That characterization of the intended subject matter of the statute is of precedential significance here:

"The list of weapons in [1929 Compiled Laws] § 16751 * * * is significant and demonstrates a definite intention of the legislature to protect society from a recognized menace. It does not include ordinary guns, swords, revolvers, or other weapons usually relied upon by good citizens for defense or pleasure. It is a partial inventory of the arsenal of the 'public enemy’, the 'gangster’. It describes some of the particular weapons with which he wars on the State and reddens his murderous trail.”²¹

It was thus decided in 1931 that the statute dealt with weapons — weapons of such danger and malevolent associations as to merit total eradication from society, with narrow, licensed exceptions.²² We see no reason to depart from that decision today.

Lynch was carrying in his pocket "some spray stuff like the mailman would carry”²³ that would "make people cough”.²⁴ These facts, adduced by the trial judge during Lynch’s plea-taking proceeding, are such as would allow a trier of fact to reasonably draw the inference that Lynch was attempting to carry a gas-ejecting weapon. There was therefore an adequate factual basis for accepting his guilty plea.²⁵

An indication that such small, hand-held gas-ejecting weapons are within the intended prohibition of the statute is provided by an opinion issued by the Attorney General in 1932.²⁶ That opinion states that a "gas pen” could be licensed only to equip certain premises or vehicles and not to be carried on one’s person as a concealed weapon. The Attorney General’s opinion that gas-pen weapons were prohibited by the statute coincides with our analysis of the intended reach of the statute.

Our construction of the statute disposes of the argument, relied on by the Court of Appeals, that the statute reaches non-weapon devices such as hairspray or deodorant.

The order of the Court of Appeals is reversed and Lynch’s conviction is reinstated.

Coleman, C.J., and Kavanagh, Williams, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Levin, J.

1 MCL 750.224; MSA 28.421.

2 People v Howell, 396 Mich 16; 238 NW2d 148 (1976).

3 Unpublished opinion (Docket No. 77-1610, November 8, 1978).

4 Const 1963, art 1, § 17, provides:

"No person shall * * * be deprived of life, liberty or property, without due process of law.”

5 Dation v Ford Motor Co, 314 Mich 152, 160; 22 NW2d 252 (1946).

See, also, Shavers v Attorney General, 402 Mich 554, 593-594, fn 14; 267 NW2d 72 (1978); People v Snow, 386 Mich 586, 591; 194 NW2d 314 (1972); Perin v Peuler (On Rehearing), 373 Mich 531, 534-535; 130 NW2d 4 (1964); Ridenour v Bay County, 366 Mich 225, 243; 114 NW2d 172 (1962).

6 See Meek v Wilson, 283 Mich 679, 689; 278 NW 731 (1938).

7 Compare the decision of the Court of Appeals in this case and in People v Guy, 84 Mich App 610; 270 NW2d 662 (1978), with People v Stinson, 88 Mich App 672; 278 NW2d 715 (1979).

8 By 1980 PA 346, effective March 31, 1981, the Legislature has amended MCL 750.224; MSA 28.421 to expand the definition of prohibited devices to include those that eject "gas or other substance” and to provide an exception for a device "capable of carrying not more than 35 grams of any combination of active and inert ingredients and which ejects, releases, or emits orthochlorobenzalmalononitrile”, but which ejects no other harmful gas or substance. The amendment makes the use of the excepted device (or its sale to a minor) a misdemeanor, unless the use is either a reasonable use by a police officer in the performance of his or her duty or a reasonable use by a person to protect person or property under circumstances that would justify that person’s use of physical force.

9 People v Howell, supra, p 21, citing United States v National Dairy Products Corp, 372 US 29; 83 S Ct 594; 9 L Ed 2d 561 (1963).

10 United States v Raines, 362 US 17, 20; 80 S Ct 519; 4 L Ed 2d 524 (1960), quoting Holmes, J., in Blodgett v Holden, 275 US 142, 148; 48 S Ct 105; 72 L Ed 206 (1927).

11 United States v Raines, supra, p 21. See also Young v American Mini Theatres, Inc, 427 US 50, 61; 96 S Ct 2440; 49 L Ed 2d 310 (1976); United States v National Dairy Products Corp, supra, p 32; Robinson v United States, 324 US 282, 286; 65 S Ct 666; 89 L Ed 944 (1945).

12 Lynch claims standing to assert the overbreadth of the statute based on the alleged failure of the judge taking his plea to adduce facts showing that the device he was carrying was a weapon, rather than an innocent device within the impermissibly overbroad reach of the statute. See Ashton v Kentucky, 384 US 195, 198; 86 S Ct 1407; 16 L Ed 2d 469 (1966); Shuttlesworth v Birmingham, 382 US 87, 91-92; 86 S Ct 211; 15 L Ed 2d 176 (1965). Because we conclude that the judge did adduce facts from which a trier of fact could reasonably infer that Lynch was attempting to carry a gas-ejecting device designed as a weapon, see Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975), this basis for standing is unavailable.

13 Lynch was charged in late 1976. The statute was amended, effective December 29, 1978, in particulars not relevant to this case. 1978 PA 564. See also footnote 8, describing another recent amendment.

14 L A Darling Co v Water Resources Comm, 341 Mich 654, 662; 67 NW2d 890 (1955); Webster v Rotary Electric Steel Co, 321 Mich 526, 531; 33 NW2d 69 (1948); Heckathorn v Heckathorn, 284 Mich 677, 681; 280 NW 79 (1938); Stambaugh Twp v Iron County Treasurer, 153 Mich 104, 107; 116 NW 569 (1908).

15 2A Sands, Sutherland Statutory Construction (4th ed), § 46.07, p 66.

16 Black’s Law Dictionary (4th ed), p 1209, quoted in State ex rel Wayne County Prosecuting Attorney v Levenburg, 406 Mich 455, 466-467, fn 8; 280 NW2d 810 (1979).

17 See Webster v Rotary Electric Steel Co, supra, p 531, and cases there cited.

18 For cases using the title to an act as an aid in construing the provisions of the act, see L A Darling Co v Water Resources Comm, supra, p 662; Heckathorn v Heckathorn, supra, pp 680-681.

19 1929 PA 206. The title further suggests that the terms in the statute other than "weapons”, i.e., "device, * * * cartridge, container or contrivance”, may refer to "attachments”. The Legislature apparently had in mind a device or contrivance into which a gas cartridge or container could be fitted which, when assembled, was a weapon. It is an indication of the seriousness of the Legislature’s concern that it prohibited the component parts as well as the complete weapon.

20 People v Brown, 253 Mich 537; 235 NW 245 (1931).

21 Id., p 542.

22 1929 PA 206, § 6-a provided, in part:

"Said concealed weapons licensing board may issue licenses to any bank, trust company, armored car company, railway company, express company, or other company, institution, copartnership or individual having in its, their, or his possession large sums of money or other valuables, authorizing such license to equip the premises or vehicles under its, their or his control with gas ejecting devices to be used solely for the purpose of protecting such premises or vehicles and the persons or property therein from criminal assaults.” MCL 28.426a; MSA 28.94.

23 Guilty plea hearing, October 7, 1976.

24 Id.

25 Guilty Plea Cases, supra, p 130.

26 OAG, 1930-1932, p 568 (May 10, 1932).