People v. McDowell
This text of 272 N.W.2d 576 (People v. McDowell) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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Our brother’s opinion delineates the salient facts upon which the defendant bases his constitutional challenge to the felony-firearm statute.1 However, we neither conclude that the question is prematurely presented nor that the [702]*702statute, when construed, is completely violative of defendant’s constitutional immunity from double jeopardy.2
The denial of defendant’s motion to quash the felony-firearm charge placed the case in a posture where trial on both charges was imminent. The constitutional question involved was certified here, and we granted leave to appeal. That question is of sufficient moment to the defendant and the ultimate termination of this action against him that a determination on the merits, which have been fully briefed and argued, is warranted.
Initially, we observe that our state double jeopardy provision is coterminous in operational scope with that of its Federal counterpart. People v Alvin Johnson, 396 Mich 424, 430, n 2; 240 NW2d 729 (1976), In re Ascher, 130 Mich 540, 545; 90 NW 418 (1902). Both clauses afford protection from multiple prosecutions and multiple punishment for the "same offense”. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
Standards for determination of the "same offense” for double jeopardy purposes were enumerated in Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932). The test developed in Blockburger required an examination of the provisions of each statutory offense to determine whether one required proof of an additional fact which the other did not.
Michigan has held that under this theory, where one of two offenses charged is a necessarily lesser included offense of the other, merger takes place and convictions for both arising out of the same act are constitutionally impermissible. People v Martin, 398 Mich 303; 247 NW2d 303 (1976), Peo[703]*703ple v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977).
We must concede, in light of the foregoing precedent and the analysis therefrom, that conviction of both felony-firearm and the underlying felony violates double jeopardy in that the underlying felony will always be a necessarily lesser included offense of felony-firearm.
However, this does not mean that we find the statute, when considered in its entirety, unconstitutional. An important element that cannot be overlooked in statutory construction is the essential ingredient of legislative intent. The primary rule governing statutory interpretation is first and foremost to ascertain and give effect to the manifest intent of the Legislature. Simpson v United States, 435 US 6; 98 S Ct 909; 55 L Ed 2d 70 (1978), Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958).
The intent of the statute so clearly indicates a mandatory additional penalty when a firearm is used or possessed during the commission of a felony that it is incumbent upon this Court to uphold, if at all possible, such a clear statutory mandate, within the limits of constitutional proscription. Purview of the legislative history emphasizes certainty of punishment as the prevailing consideration in enacting the statute under review.3
[704]*704Rather than strike down the statute in its entirety, we construe it to be inoperable only as a separate distinct felony statute. We view it rather as a sentence enhancement or sentence augmenting statute.
Such an interpretation has precedential sanctions in this state. In Dickerson v Heide, 69 Mich App 303, 308-309; 244 NW2d 459 (1976), this Court stated:
"We find this to be an especially cogent example of a situation where literal application of a statute would cause an unfortunate and unintended result and where rejection of the literal dictates will further the intent of the statute.”
Every legislative act is presumed to be constitutional. The courts are required, wherever possible, to construe in favor of validity. Oftentimes it is necessary that the spirit and purpose of the statute should prevail over its strict letter, Thomas v Consumers Power Co, 58 Mich App 486, 495; 228 NW2d 786 (1975), People v Otis Adams, 34 Mich App 546, 555; 192 NW2d 19 (1971).
Our Michigan Supreme Court in Williams v Secretary of State, 338 Mich 202, 208; 60 NW2d 910 (1953), quotes with approval a particularly compelling maxim from Endlich on the Interpretation of Statutes, § 295:
" ' "Effect to be Given to True Intent of Act. Modification of Language. — Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it, which modi[705]*705fies the meaning of the words, and even the structure of the sentence. This is done, sometimes, by giving an unusual meaning to particular words; sometimes by altering their collocation; or by rejecting them altogether; or by interpolating other words; under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language, and really give the true intention. The ascertainment of the latter is the cardinal rule, or rather the end and object, of all construction; and where the real design of the legislature in ordaining a statute, although it be not precisely expressed, is yet plainly perceivable, or ascertained with reasonable certainty, the language of the statute must be given such a construction as will carry that design into effect, even though, in so doing, the exact letter of the law be sacrifíced, or though the construction be, indeed, contrary to the letter.” ’ ” (Emphasis supplied.)
See also Grand Rapids v Crocker, 219 Mich 178, 183; 189 NW 221 (1922).
The statute, with the offensive language removed, is still an act complete within itself. It does not require references to other statutes for its meaning, nor does it alter or amend another statute by reference to title. As such, it is not offensive to our state constitution.4 In scope and application it can be analogized to the habitual offender5 statute which the Michigan Supreme Court has found to be constitutional. In re Pardee, 327 Mich 13; 41 NW2d 466 (1950), cert den, 339 US 961; 70 S Ct 989; 94 L Ed 1371 (1950), People v Hendrick, 398 Mich 410; 247 NW2d 840 (1976).
Critics of the view herein embraced may contend [706]*706that our decision invades the province of the Legislature. To the contrary, we sincerely believe that we have sustained the obvious intent of the Legislature by exercising proper judicial construction.
Affirmed.
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Cite This Page — Counsel Stack
272 N.W.2d 576, 85 Mich. App. 697, 1978 Mich. App. LEXIS 2450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcdowell-michctapp-1978.