People v. Williams , 99 Mich. App. 463 ( 1980 )

99 Mich. App. 463 (1980) 297 N.W.2d 702

PEOPLE
v.
WILLIAMS

Docket No. 48777.

Michigan Court of Appeals.

Decided August 13, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.

Robert E. Slameka, for defendant on appeal.

Before: BASHARA, P.J., and D.C. RILEY and E.A. QUINNELL,^[*] JJ.

PER CURIAM.

Defendant was charged with felonious assault, MCL 750.87; MSA 28.282, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). At a bench trial, he was found guilty of felonious assault but not guilty of the felony-firearm charge.

The verdicts are inconsistent. The only weapon which could support a conviction of felonious assault was the same weapon which would lead to a finding of guilt under the felony-firearm charge. The trial court found, since the firearm was never introduced in evidence, that it had a reasonable doubt as to the defendant's guilt of the felony-firearm charge. There is ample Court of Appeals authority that the conviction of felonious assault, therefore, cannot stand, inter alia, People v Vaughn, 92 Mich App 742; 285 NW2d 444 (1979), People v Lewis, 94 Mich App 752; 290 NW2d 73 (1980).

However, we add a caveat. The prosecutor accurately notes that, although the Michigan view of inconsistent verdicts is well established in numerous decisions of the Michigan Court of Appeals, that view is the minority American view; Anno: Inconsistency of criminal verdict as between different counts of indictment or information, 18 ALR3d 259. He, therefore, suggests that this court abandon the present rule as to inconsistent verdicts, a suggestion which we decline in view of the many appellate decisions of this state supporting the present view. However, at least in a jury trial, if not in a bench trial, we recognize that the Supreme Court may see fit to change the rule. In People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), the Supreme Court cited the opinion of Justice Holmes in Dunn v United States, 284 US 390; 52 S Ct 189; 76 L Ed 356 (1932), Dunn is perhaps the leading authority for the majority view that inconsistent verdicts in criminal cases do not require reversal. The philosophy behind the lesser-included offense analysis found in Chamblis is also consistent with that view. The opinion of Judge KELLY, dissenting in Lewis, supra, also suggests that counsel may wish to preserve the point for review in appropriate cases.

Conviction reversed and defendant discharged.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.