The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5215

August 26, 1977

FIREARMS:

Return of stolen firearm to owner.

The State Police may return a pistol whose serial number has been altered or removed by another person to its owner after the State Police has restamped the weapon with either its original serial number or a new number issued by the Department and the owner may not be prosecuted for possession of a firearm whose number has been altered, removed or obliterated by another person.

Colonel Gerald L. Hough

Director

Department of State Police

714 South Harrison Road

East Lansing, Michigan 48823

You have requested my opinion on the following questions:

'1. Can the Department of State Police return to its rightful owner, a pistol whose serial number has been either altered or removed if, prior to being returned, the department restamps the weapon with either its original serial number or a new number issued by the department?

'2. In following the procedure suggested in question number 1, would the owner then be secure from prosecution under MCL Sec. 750.230; MSA Sec. 28.427? (The assumption is made that the weapon would be properly registered once returned.)'

Section 230 of the Michigan Penal Code, 1931 PA 328, Sec. 230, provides in pertinent part:

'A person who shall wilfully alter, remove or obliterate the name of the maker, model, manufacturer's number or other mark of identify of a pistol, shall be guilty of a felony, punishable by imprisonment for not more than 2 years or a fine of not more than $1,000.00. Possession of a firearm upon which the number shall have been altered, removed or obliterated, . . . shall be presumptive evidence that the possessor has altered, removed or obliterated the same.'

Thus, although the statute prohibits the alteration, removal, or obliteration of the name of the maker, model, manufacturer's number or other mark of identity of any pistol, it does not prohibit possession of a pistol on which the mark of identity has been altered. It merely creates a rebuttal presumption that the person in possession of such a weapon is the one who altered the identification. People v Petro, 342 Mich 299, 306; 70 NW2d 69, 70 (1955). It must also be noted that the role of a statutory presumption is to establish a prima facie case; however, if the presumption is challenged by rebuttal evidence, the presumption cannot be weighed against the evidence. Gillette v Michigan United Tractor Co, 205 Mich 410; 171 NW 576 (1919).

In response to question number 1, it is therefore my opinion that the Department of the State Police may return the weapon in question to its owner, in the event the department restamps the weapon with either its original or a new serial number issued by the department and, in answer to your second question, since the owner can show that he did not alter the identification of the pistol, he may not be prosecuted for violation of 1931 PA 328, Sec. 230, supra.

Frank J. Kelley

Attorney General