People v. Mallory

• Citation: 2 Mich.App. 359,139 N.W.2d 904
• Decision Date: 22 February 1966
• Docket Number: No. 435,No. 1,435,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sanders MALLORY, Jr., Defendant-Appellant. Cal
• Court: Court of Appeal of Michigan — District of US

Page 904

139 N.W.2d 904

2 Mich.App. 359

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sanders MALLORY, Jr., Defendant-Appellant.

Cal. No. 435.

Court of Appeals of Michigan, Division No. 1.

Feb. 22, 1966.

Milton R. Henry, Pontiac, Edward F. Bell and Lawrence W. Massey, Detroit, for appellant, Charles S. Brown, Detroit, of counsel.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Wayne County, Detroit, for appellee.

Before LESINSKI, C. J., and GILLIS and QUINN, JJ.

QUINN, Judge.

Defendant appeals from his conviction and sentence for possession of narcotics C.L.S.1961, § 335.153 (Stat.Ann.1957 Rev. § 18.1123) in recorder's court of Detroit. He contends that the jury which convicted him was improperly drawn, and that the record does not sustain a conviction for violation of the above statute because mere possession is shown and it is not shown that defendant did not possess a license. Defendant further contends that the trial court improperly denied his motion to suppress evidence on the basis of alleged unlawful search and seizure, and that the trial court erred in not giving one of defendant's requests to charge. These contentions frame the issues for decision.

May 8, 1964, four police officers were proceeding north on Twelfth street in Detroit in a police cruiser. As they passed the intersection of Twelfth and Buena Vista, a brown Cadillac convertible was observed on Buena Vista. It was stopped facing west on the east side of Twelfth. The driver of the cruiser continued to observe the brown Cadillac in his rear view mirror and saw it cross Twelfth and stop with its front end approximately at the crosswalk and its rear extending into Twelfth street. Immediately returning to the intersection of Twelfth and Buena Vista, the officers saw the brown Cadillac improperly back into Twelfth street and start north. The police car pursued the Cadillac and came along side it when the Cadillac stopped for a red light at Davison. At this point, one of the officers observed defendant, a passenger in the Cadillac, reach in his pocket and withdraw a tinfoil package about eight inches long and three or four inches wide. Thereupon, the officer called out 'narcotics', jumped from the car, and while running to the Cadillac, saw defendant open the package. The officer saw white powder drip from the package. The driver of the Cadillac and defendant left it and started to run. The officer retrieved the package from the front seat, where defendant had dropped it. The package was still dripping white powder, and the officer closed it and placed it in his pocket. Defendant and the driver were arrested. Chemical analysis of the contents of the tinfoil package and white powder scraped from the front seat of the Cadillac disclosed both were a mixture of cocaine, procaine and lactose. Defendant was charged, tried and convicted of violating C.L.S.1961, § 335.153 (Stat.Ann.1957 Rev. § 18.1123) which reads so far as pertinent:

'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 355.78, 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, * * *.'

Selection of jurors to serve in recorder's court of Detroit is accomplished under Municipal Court Jury Code, C.L.1948, § 725.101 et seq. (Stat.Ann.1962 Rev. § 27.3971 et seq.). The code requires that electors of good character, approved integrity, sound judgment, who are well informed, conversant with the English language possessed of their natural faculties, judicious and discreet, not infirm or decrepit, who have not applied to be placed on a jury list, and who have not served on any jury during the preceding 3 years, shall be selected as jurors. C.L.1948, § 725.115 (Stat.Ann.1962 Rev. § 27.3985). To determine these qualifications, a questionnaire is first used. C.L.1948, § 725.108 (Stat.Ann.1962 Rev. § 27.3978). Prospective jurors may be disqualified by their answers to the questionnaire. C.L.1948, § 725.109 (Stat.Ann.1962 Rev. § 27.3979). Those surviving the questionnaire are called in for oral examination under oath concerning their qualifications. C.L.1948, § 725.110 (Stat.Ann.1962 Rev. § 27.3980). Prospective jurors are questioned as to their criminal records and the criminal records of their immediate family, and disclosure of a criminal record on the part of the juror or some member of his immediate family may result in disqualification. Defendant contends this practice results in a systematic exclusion of a class from jury service and is a denial of equal protection of the law as demonstrated by Hernandez v. State of Texas (1953), 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866. The record here...