Opinion
Docket No. 51985.
Decided January 20, 1982.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Frank J. Bernacki, Assistant Prosecuting Attorney, for the people. Thomas E. Binion, for defendant.
Defendant was charged with possession of a gas-ejecting device, MCL 750.224; MSA 28.421. At the close of proofs in a nonjury trial, the trial judge sua sponte dismissed the case on the ground that the statute under which defendant was charged was vague and overbroad. The people appeal by right.
In holding that the statute prohibiting possession of a gas-ejecting device was unconstitutionally vague and overbroad, the trial court relied upon People v Guy, 84 Mich. App. 610; 270 N.W.2d 662 (1978). However, recently in People v Lynch, 410 Mich. 343; 301 N.W.2d 796 (1981), the Court held that the statute clearly covered gas-ejecting weapons. Since Lynch's statements at his guilty-plea hearing clearly indicated that the device he was carrying was a weapon, Lynch did not have standing to assert that the statute was overbroad because it reached innocent gas-ejecting devices. Id., 352.
Lynch requires reversal and a new trial here. On remand, defendant shall not be convicted unless the finder of fact determines that he was carrying a gas-ejecting weapon.
Defendant argues that retrial here is barred by the constitutional prohibition of double jeopardy. However, double jeopardy does not prevent retrial where defendant voluntarily obtains termination of his first trial on grounds unrelated to his factual guilt or innocence. See United States v Scott, 437 U.S. 82; 98 S Ct 2187; 57 L Ed 2d 65 (1978). The overbreadth or vagueness of the statute here had nothing to do with defendant's factual guilt or innocence of the crime charged. Defendant's consent to the dismissal was manifested through counsel. We adhere to the position taken by the majority in People v Hoffman, 81 Mich. App. 288; 265 N.W.2d 94 (1978), and People v Blackburn, 94 Mich. App. 711; 290 N.W.2d 61 (1980), that defendant need not personally manifest his consent.
Reversed and remanded for further proceedings in accordance with this opinion.