Defense witness who anticipated taking fifth amendment on cross-examination not allowed to testify.
How later courts described this case
- Defense witness who anticipated taking fifth amendment on cross-examination not allowed to testify.
- conviction for both offenses constitutes double jeopardy
Written by the judges who cited it.
The opinion
Mackenzie, J.
(dissenting in part). I cannot join the part of the majority’s opinion which holds that there cannot be convictions for both carrying a concealed weapon and felony-firearm based upon one occurrence. Unlike the majority, I agree with the majority opinion in People v Shelton, 93 Mich App 782 ; 286 NW2d 922 (1979), which upheld convictions for both offenses based upon one occurrence.
As noted in Shelton , the right against double jeopardy is not violated if (1) each offense requires proof of a fact that the other does not, or (2) the Legislature expressed a clear intent to define and punish separate offenses based on one occurrence. The crimes of carrying a concealed weapon and felony-firearm each require proof of a fact that the other does not. The former requires that a dangerous weapon be concealed while the latter requires that a firearm be possessed during the commission or attempted commission of a felony.
I do not believe the fact that the Legislature has expressly prohibited the crime of carrying a concealed weapon from being an underlying offense of felony-firearm means that there cannot be convictions of both where another felony serves as the underlying offense of the felony-firearm conviction. The crimes of carrying a concealed weapon and felony-firearm serve two different purposes. According to this Court in People v Jonnie W Jones, 12 Mich App 293, 295-296 ; 162 NW2d 847 (1968):
" 'The purpose of all concealment statutes is clear. At the time they were enacted, the open carrying of weapons upon the person was not prohibited. The purpose of the concealed weapons statutes was to prevent men in sudden quarrel or in the commission of crime from *707 drawing concealed weapons and using them without prior notice to their victims that they were armed. The person assailed or attacked would behave one way if he knew his assailant was armed and perhaps another way if he could safely presume that he was unarmed.’ People v Raso (1958), 9 Misc 2d 739 ( 170 NYS2d 245, 251 ).”
On the other hand, the purpose of the felony-firearm statute is to deter the use of handguns during the course of a felony. People v Elowe, 85 Mich App 744 ; 272 NW2d 596 (1978). Consequently, I would affirm defendant’s conviction of carrying a concealed weapon.