People v. Kelsch

Decision Date27 February 1969
Docket NumberDocket No. 4683,No. 2,2
Citation167 N.W.2d 777,16 Mich.App. 244
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Leo KELSCH, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

Irving D. Robinson, Gruenburg, Robinson & Bogus, Center Line, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer by Stephen F. Osinski, Asst. Pros. Atty., Macomb County, Mt. Clemens, for appellee.

Before LESINSKI, C.J., and J. H. GILLIS and T. M. BURNS, JJ.

PER CURIAM.

Defendant appeals from a conviction by a jury of carrying a concealed pistol without a license. C.L.1948, § 750.227 (Stat.Ann.1962 Rev. § 28.424.)** To establish the corpus delicti of this felony, the prosecutor must prove not only that the defendant carried a concealed pistol but also that he had no license to do so. People v. Autry (1967), 7 Mich.App. 480, 483, 152 N.W.2d 55. It is well settled in this state that the corpus delicti of a crime, or any essential element of it, cannot be established solely by the extrajudicial statements of the accused. People v. Zwierkowski (1962), 368 Mich. 56, 117 N.W.2d 179; People v. Asta (1953), 337 Mich. 590, 613, 60 N.W.2d 472. The only testimony offered as to licensing in this case was that of a police officer that defendant admitted the gun was his and he had no license. Defendant objected that this was not sufficient proof, but the trial judge overruled the objection. See People v. White (1936), 276 Mich. 29, 267 N.W. 777; People v. Lee (1925), 231 Mich. 607, 204 N.W. 742.

Reversed and remanded for new trial.

** This conviction precedes the effective date of P.A.1968, No. 299 being C.L.1948, § 776.20 (Stat.Ann.1969 Cum.Supp. § 28.1274(1)), which provides: 'In any prosecution for the violation of any acts of the state relative to use, licensing and possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or exemption contained in any such act shall be upon the defendant but this does not shift the burden of proof for the violation.'

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7 cases
  • People v. Allen, Docket No. 10157
    • United States
    • Court of Appeal of Michigan — District of US
    • March 27, 1972
    ...poisoning of cattle); Peterson v. Oceana Circuit Judge, 243 Mich. 215, 217, 219 N.W. 934 (1928) (arson). 8 In People v. Kelsch, 16 Mich.App. 244, 245, 167 N.W.2d 777 (1969), we '(T)he Corpus delicti of a crime, or Any essential element of it, cannot be established solely by the extrajudicia......
  • People v. Smith
    • United States
    • Court of Appeal of Michigan — District of US
    • September 26, 1973
    ...People v. Randall, 42 Mich.App. 187, 201 N.W.2d 292 (1972), does make such a holding, but the cases it is based on (People v. Kelsch, 16 Mich.App. 244, 167 N.W.2d 777 (1969), and People v. Barron, 381 Mich. 421, 163 N.W.2d 219 (1968)) both deal with a defendant's challenge to the sufficienc......
  • People v. Rios
    • United States
    • Michigan Supreme Court
    • November 9, 1971
    ...(1967), 7 Mich.App. 480, 152 N.W.2d 55 and including People v. Schrader (1968), 10 Mich.App. 211, 159 N.W.2d 147; People v. Kelsch (1969), 16 Mich.App. 244, 167 N.W.2d 777; and People v. Baker (1969), 19 Mich.App. 480, 172 N.W.2d 892. These cases hold that proof of lack of a license to carr......
  • People v. Sparks
    • United States
    • Court of Appeal of Michigan — District of US
    • May 29, 1974
    ...he must show all of the elements of the offense. People v. Barron, 381 Mich. 421, 163 N.W.2d 219 (1968); People v. Kelsch, 16 Mich.App. 244, 167 N.W.2d 777 (1969).' The state of the law before People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973), as defendant concedes, is clearly contrary t......
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