DocketNumber： Docket 7,632, 8,892
Citation Numbers： 182 N.W.2d 721, 26 Mich. App. 675, 1970 Mich. App. LEXIS 1499
Judges： G-Illxs, McGregor, Gillis, O'Hara
Filed Date： 9/30/1970
Status： Precedential
Modified Date： 11/10/2024
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Gerard A. Poehlman, Assistant Prosecuting Attorney, for the people.
Carl M. Riseman, for defendant Charles Wilbur Meadows, III.
Michael J. Colleran, in propria persona.
Before: McGREGOR, P.J., and J.H. GILLIS and O'HARA,[*] JJ.
Leave to appeal denied as to Meadows January 13, 1971. 384 Mich 796.
*677 J.H. GILLIS, J.
On October 8, 1968, defendants Charles Meadows and Michael Colleran were tried by a jury and convicted of carrying an unlicensed pistol in an automobile, MCLA § 750.227 (Stat Ann 1962 Rev § 28.424). On appeal, defendants allege an illegal search and seizure, insufficient evidence to support the conviction, and trial error.
The testimony at trial showed that defendant Meadows was driving a black 1965 Ford station wagon in the early morning of June 28, 1968. Codefendant Colleran was a passenger. A police officer testified that he had been instructed to be on the alert for such a vehicle, bearing two men fitting the description of the defendants. Except for the fact that the car in question had Michigan license plates, whereas the wanted car was said to have had Ohio license plates, the car and its occupants matched the description of the "radio alert".
The officer followed the car, pulled along side, and shined a light on its occupants. The car then sped off, struck a guardrail, and, as the car rolled forward, the defendants ran away. Police officers gave chase and arrested them immediately. A search of defendant Meadows disclosed 15 rounds of .38-caliber ammunition.
After Meadows and Colleran were taken away, one police officer entered the car to drive it to the police station. In so doing, he found a loaded .38-caliber pistol stuck in the armrest on the passenger side of the car. The officer's testimony was to the effect that the pistol was not concealed from view.
The defendants' claim that the pistol was illegally seized is without merit. In Harris v. United States (1968), 390 US 234, 236 (88 S Ct 992, 19 L Ed 2d 1067, 1069), the United States Supreme Court noted
"It has long been settled that objects falling in the plain view of an officer who has a right to be *678 in the position to have that view are subject to seizure and may be introduced in evidence."
This is the so-called "plain view doctrine" which has been repeatedly applied by Michigan Courts. People v. Tetts (1967), 6 Mich App 254; People v. McDonald (1968), 13 Mich App 226; People v. Tisi (1969), 16 Mich App 316. There was no error in admitting the pistol in evidence.
There was sufficient evidence introduced at trial to support the verdicts. People v. Jerome I. Smith (1970), 21 Mich App 717. The statute dealt with does not require that the arrest be simultaneous with the operation of the vehicle or the carrying of the weapon. People v. Moceri (1940), 294 Mich 483. The fact that defendant Meadows was carrying 15 rounds of .38 caliber ammunition supports an inference that he had knowledge of the presence of the pistol.
Defendants' request that the trial judge charge the jury that in order to support the conviction the defendants must have been found to have exercised some control or possession over the weapon was granted in accordance with People v. Smith, supra. The trial judge properly declined to instruct the jury relative to the application of MCLA § 750.231 (a) (Stat Ann 1970 Cum Supp § 28.428 [1]), excluding from this offense a person carrying an unloaded pistol in a wrapper or container from the place of purchase to his home, because here the pistol was found loaded and uncased.
Defendant Meadows' claim that he has newly discovered evidence sufficient to warrant a new trial is equally without merit. On the affidavits submitted in support of his motion for new trial, the trial judge could have reasonably concluded that the evidence was not newly discovered or that such evidence would not have rendered a different result *679 probable upon retrial. People v. Paugh (1949), 324 Mich 108; People v. Bauman (1952), 332 Mich 198; People v. Keiswetter (1967), 7 Mich App 334. Under these circumstances the trial court did not err in denying defendant Meadows motion for new trial. Cf. People v. Higginbotham (1970), 21 Mich App 489.
Affirmed.
All concurred.
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.