People v. Nixon ( 1968 )

Lesinski, C. J.

The people appeal an order of the Oakland county circuit court quashing the information lodged against defendant Tallie Nixon for carrying a dangerous weapon in a vehicle.¹

Without need to reach the question of whether or not the trial court was correct in quashing the information on its stated basis, we find upon examination of the record that the evidence presented at the examination will not sustain a finding that a crime has been committed.

The record filed in this cause reveals that no evidence was offered to show that the seized M-l rifle was not a pistol as defined by CL 1948, § 750.222, as amended by PA 1964, No 215 (Stat Ann 1968 Cum Supp § 28.419). Failure to have the M-l rifle admitted into evidence required at a minimum testimonial evidence to establish this fact.

Further, no evidence was offered as to whether defendant was licensed to carry a concealed weapon.² Proof of the length of the seized M-l rifle is critical in this cause, for if the seized M-l rifle was a pistol as defined by § 750.222, supra, it would be incumbent upon the people to show that the defendant was without authority to carry it concealed upon his person or in an automobile.

Due to the fact that the record fails to establish that the M-l rifle, as found in the possession of the defendant, was capable of firing the cartridge found in tlio chamber, wo are unable to pronounce the rifle a dangerous weapon per se. Had the rifle and cartridge in question been admitted into evidence, such a determination could have been made.

For the reasons stated above, it is not necessary to comment on whether sufficient evidence was presented upon which to decide whether or not defendant was within the curtilage of a dwelling house at the time of the search and seizure or arrest.

Affirmed.

Quinn and Moody, JJ., concurred.

1 CL 1948, § 750.227 (Stat Ann 1962 Bev § 28.424).

2 CL 1948, § 28.426, et seq. as amended by PA 1964, No 216 (Stat Ann 1968 Cum Supp § 28.93, et seq.).