People v. Stevens

285 N.W.2d 316, 92 Mich. App. 427, 1979 Mich. App. LEXIS 2357

Opinions

Bashara, J.

The majority of this panel accepts the factual findings of Judge Cavanagh. We differ in his conclusion that the pointing of an inoperable handgun loaded with live shells at the complaining witness does not amount to felonious assault.

The applicable statute, also set forth by Judge Cavanagh, provides that one who assaults another with a gun, without intending to commit great bodily harm, is guilty of a felony. We agree that the statute should be strictly construed. However, it is difficult to traverse around its plain meaning. When the statute speaks of a gun, it does not refer to its caliber, nor to its operability.

We are required to accept the definition of the term "assault” set forth in People v Sanford, 402 ; 265 NW2d 1 (1978). The Supreme Court there unanimously declared that:

"We adopt what Perkins on Criminal Law (2d ed), p 117, says is the majority rule, namely 'a simple criminal assault "is made out from either an attempt to commit a battery or an unlawful act which places another in reasonable apprehension of receiving an immediate battery” ’.”

This is the traditional subjective test of assault which examines the mind, of the vicitm to determine whether that individual had a reasonable apprehension of an impending battery.

To say that an assault was not committed because the weapon involved was not operable misses the mark. If a victim perceives an object such as a handgun and believes that object to be a dangerous weapon, then a prima facie case of felonious assault is made out. People v Williams, 6 Mich App 412; 149 NW2d 245 (1967).

Given the facts of this case, the trial court was in error in dismissing the charge prior to trial.

Reversed.

D. E. Holbrook, Jr., J., concurred.