People v. Edwards, Docket No. 9079

• Decision Date: 17 January 1972
• Docket Number: Docket No. 9079,No. 2,2
• Citation: 37 Mich.App. 490,195 N.W.2d 35
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James EDWARDS, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 35

195 N.W.2d 35

37 Mich.App. 490

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James EDWARDS, Jr., Defendant-Appellant.

Docket No. 9079.

Court of Appeals of Michigan, Division No. 2.

Jan. 17, 1972.

Released for Publication March 9, 1972.

Shaker Brackett, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and BRONSON and TARGONSKI, ^* JJ.

DANHOF, Judge.

The defendant was convicted, after a jury trial, of illegal possession of narcotics in violation of M.C.L.A. § 335.153; M.S.A. § 18.1123. He now appeals. We reverse because the people failed to prove that the defendant did not have a license to possess narcotics.

This case is controlled by the Supreme Court's decision in People v. Rios, 386 Mich. 172, 191 N.W.2d 297 (1971). In Rios the Supreme Court held that a defendant's lack of a license was an essential element of the offense of sale of narcotics. The only difference between Rios and this case is that Rios involved a prosecution for sale of narcotics under M.C.L.A. § 335.152; M.S.A. § 18.1122 and this case involves the prosecution for possession of narcotics under M.C.L.A. § 335.153; M.S.A. § 18.1123. However, we do not regard this as a viable distinction. In pertinent part the wording of the statutes is identical. M.C.L.A. § 335.152; M.S.A. § 18.1122 provides:

'Any person not having a license under the provisions of Act No. 343 of the Public Acts of 1937, as amended, being sections 335.51 to 335.78, inclusive, of the Compiled Laws of 1948, who shall sell, manufacture, produce, administer, dispense or prescribe any narcotic drug shall be deemed guilty of a felony.'

M.C.L.A. § 335.153; M.S.A. § 18.1123 provides:

'Any person not having a license as required under the provisions of Act No. 343 of the Public Acts of 1937, as amended, being sections 335.51 to 335.78, inclusive, of the Compiled Laws of 1948, who shall possess or have under his or her control any narcotic drug shall be deemed guilty of a felony.'

Reversed and remanded for a new trial.

* VICTOR TARGONSKI, former Circuit Court Judge, sitting on the Court of Appeals by assignment pursuant to Const.1963, art. 6, § 23 as amended in 1968.