People v. MacEri

197 N.W.2d 89, 39 Mich. App. 38, 1972 Mich. App. LEXIS 1386

• Court: Michigan Court of Appeals
• Decided: February 28, 1972
• Docket: Docket 10027
• Status: Published

Opinion

Per Curiam.

The defendant was charged with possession of marijuana and heroin (MCLA 335.153; MSA 18.1123) and was convicted by the court sitting without a jury. Defendant appeals and raises numerous issues; we need consider only one.

At trial the prosecution failed to establish that the defendant did not have a license to possess narcotics. Defendant moved for a directed verdict on this basis, which was denied. Our Supreme Court recently held that:

“ * * * lack of a license is an element of the offense charged under MCLA § 335.152 (Stat Ann 1957 Rev § 18.1122). The prosecution has the burden of proof beyond a reasonable doubt on this element, as all other elements of crime.” People v Rios, 386 Mich 172, 181 (1971).

The statute under which defendant was charged and convicted begins with identical language regarding licensing. Therefore, under the mandate in Rios, supra, the lack of a license is also an essential element of the crime charged under MCLA 335.153; MSA 18.1123. 1 The prosecution in this case failed to establish that element. Defendant’s motion for a directed verdict should have been granted.

Reversed.

1 This requirement seems frivolous because in fact one cannot apply for and receive a license to sell, dispense, or possess marijuana or heroin. There are no such licenses, marijuana or heroin being drugs that are not legal in this state or this country.