People v. Robinson

194 N.W.2d 436, 37 Mich. App. 15, 1971 Mich. App. LEXIS 1145

Opinions

R. B. Burns, J.

Defendant was convicted after a jury trial of a three-count information with: (1) wilfully or maliciously burning real property, contrary to MCLA § 750.73 (Stat Ann 1962 Rev § 28.268); (2) placing, using or distributing any inflammable, combustible or explosive material in or about any building with intent to wilfully and maliciously burn, contrary to MCLA § 750.77 (Stat Ann 1962 Rev § 28.272); and (3) placing explosives with intent to destroy property with resulting personal injury, contrary to MCLA § 750.207 (Stat Ann 1962 Rev § 28.404). He appeals as of right from his conviction and life sentence pursuant to MCLA § 750.207 (Stat Ann 1962 Rev § 28.404).

At approximately 2:23 a.m., January 12, 1969, a second-floor dance hall situated in the western section of the City of Detroit was criminally incinerated resulting in extensive property damage and personal injury. On the date in question, defendant, accompanied by four others, drove to the dance hall where he was dropped off. The other men promised to return for defendant within one-half hour. ■ Upon their return, he informed them that he had been denied admission. All five then proceeded to a nearby gasoline station where defendant procured an oil can containing two gallons of gasoline. Returning to the establishment, defendant again attempted to gain admission but was similarly refused. Defendant then secured the gasoline and, accompanied by one of the other men, returned to the hall once more. The three men who had remained outside testified that shortly thereafter they observed the emission of flames from the doorway of the building followed by the exiting two men.

Although defendant was not positively identified as the one who started the fire, there was testimony of an injured witness that two men entered the building, one spreading gasoline on the stairway and the other throwing the match. Defendant’s three companions also testified that when the two returned to the car defendant said to the other, “You threw the match too quick!”

At trial defendant moved to strike count three— placing explosives with intent to destroy property and causing injury to any person. The motion was denied.

MCLA § 750.207 (Stat Ann 1962 Rev §28.404) reads as follows :

“Any person who places in, upon, under, against or near to any building, car, vessel or structure, gunpowder or any other explosive substance, with intent to destroy, throw down, or injure the whole or any part thereof, which substance upon explosion shall cause injury to any person, shall be guilty of a felony, punishable by imprisonment in the state prison for life. Such convicted person shall not be eligible to parole.”

The Penal Code does not define the word “explosive”. The word “explosive” is defined in the Motor Vehicle Code as follows:

“ ‘Explosives’ means any chemical compound or mechanical mixture that is commonly used or intended for the purpose of producing an explosion and which contains any oxidizing or combustive units or other ingredients in such proportions, quantities, or packing that an ignition by fire, friction, by concussion, by percussion, or by detonator of any part of the compound or mixture may cause such a sudden generation of highly heated gases that the resultant gaseous pressures are capable of producing destructible effects on contiguous objects or of destroying life or limb.” MCLA § 257.15 (Stat Ann 1968 Rev § 9.1815).

While gasoline is capable of exploding, it is not commonly used or intended as an explosive. Gasoline is highly flammable and is used to start fires.

MCLA § 750.77 (Stat Ann 1962 Rev § 28.272) provides that the use of incendiary or flammable substances to cause property destruction and personal injury is a felony.

In our opinion it was not the intent of the legislature to classify gasoline as an “explosive”, when spread upon the surface of property to start a fire, under the statute.

Reversed and remanded for a new trial.

Levin, P. J., concurred.