People v. Maceri

• Decision Date: 28 February 1972
• Docket Number: Docket No. 10027,No. 1,1
• Citation: 197 N.W.2d 89,39 Mich.App. 38
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Charles MACERI, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 89

197 N.W.2d 89

39 Mich.App. 38

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Charles MACERI, Defendant-Appellant.

Docket No. 10027.

Court of Appeals of Michigan, Division No. 1.

Feb. 28, 1972.

Released for Publication May 12, 1972.

James E. McCarthy, Livonia, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and J. H. GILLIS and VanVALKENBURG ^*, JJ.

PER CURIAM.

The defendant was charged with possession of marijuana and heroin (M.C.L.A. § 335.153; M.S.A. § 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 M.C.L.A. § 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, 191 N.W.2d 297, 301 (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 M.C.L.A. § 335.153; M.S.A. § 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.

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

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.