Opinion
Docket No. 77-5128.
Decided December 5, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Robert M. Morgan, Assistant Prosecuting Attorney, for the people.
Robert E. McCall, for defendant on appeal.
Before: J.H. GILLIS, P.J., and V.J. BRENNAN and BASHARA, JJ.
The majority accepts the facts as set forth in our brother's dissent. In view of People v McDowell, 85 Mich. App. 697; 272 N.W.2d 576 (1978), and People v Blount, 87 Mich. App. 501; 275 N.W.2d 21 (1978), we set aside defendant's felony-firearm conviction, but uphold the sentence as an augmentation of the penalty in the underlying felony.
V.J. BRENNAN, J., concurred.
On September 6, 1977, defendant pled guilty to two charges; assault with intent to commit murder, MCL 750.83; MSA 28.778, and possession of a firearm while in the commission of a felony. MCL 750.227(b); MSA 28.424(2). The facts indicate that on July 24, 1977, defendant, armed with a rifle, chased a woman into an alley and fired several shots at her, one of which inflicted a nonfatal wound.
On appeal, defendant raises three issues. One of these is without merit. The judge committed no reversible error in accepting the guilty pleas. Defendant's contentions are answered by Guilty Plea Cases, 395 Mich. 96; 235 N.W.2d 132 (1975), People v Love, 76 Mich. App. 379; 256 N.W.2d 602 (1977), and MCL 771.1; MSA 28.1131.
However, under the facts of this case I do not believe defendant can be convicted of both assault with intent to commit murder and possession of a firearm while in the commission of a felony. The factual basis for both charges is that defendant fired several shots at the victim. Possession of a firearm was a necessary prerequisite to the assault in this case.
The Supreme Court in People v Stewart (On Rehearing), 400 Mich. 540; 256 N.W.2d 31 (1977), stated that where possession of heroin is merely incidental to the sale of heroin a person cannot be convicted of both possession of heroin and delivery of heroin. Under the facts of that case, possession "was a `necessary' prerequisite or the sine qua non for the very sale for which he was also convicted". 400 Mich at 549.
Applying a similar rationale to the instant case convinces me that defendant may not be doubly punished by convicting him of both the assault charge and the felony-firearm charge. The assault charge was predicated upon defendant's chasing the victim with a rifle and firing several shots at her. Thus, possession of the rifle was the sine qua non of the assault charge. The facts necessary to show that defendant committed the assault, without more, showed that defendant violated the felony-firearm statute. See also People v Martin, 398 Mich. 303; 247 N.W.2d 303 (1976), People v Moore, 87 Mich. App. 475; 275 N.W.2d 19 (1978), People v Mitchell, 85 Mich. App. 757; 272 N.W.2d 601 (1978) (KAUFMAN, J., dissenting).
I disagree with the majority's resolution of this double jeopardy problem for the reasons set forth in my dissenting opinion in People v Moore, supra.
I would affirm defendant's conviction for assault with intent to commit murder but vacate the conviction on the felony-firearm charge and order the sentence imposed for the latter charge set aside.