People v. Rios

• Decision Date: 09 November 1971
• Docket Number: No. 17,17
• Citation: 386 Mich. 172,191 N.W.2d 297
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward RIOS and Patrick Contreras, Defendants-Appellants.
• Court: Michigan Supreme Court

Page 297

191 N.W.2d 297

386 Mich. 172

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward RIOS and Patrick Contreras, Defendants-Appellants.

No. 17.

Supreme Court of Michigan.

Nov. 9, 1971.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Robert A. Reuther, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendants-appellants.

Before the Entire Bench.

SWAINSON, Justice.

Patrick Contreras and Edward Rios were arrested on October 5, 1956 and charged with unlawful sale of narcotics in violation of M.C.L.A. § 335.152 (Stat.Ann.1957 Rev. § 18.1122). They were found guilty by a jury on November 30, 1956. The trial judge sentenced each defendant to from 20 to 30 years imprisonment on December 20, 1956. A delayed motion for new trial was denied on August 26, 1969. In an opinion dated October 1, 1970, the Court of Appeals affirmed. 27 Mich.App. 54, 183 N.W.2d 321. We granted leave to appeal. 384 Mich. 789.

Defendants raise four issues on appeal. However, in view of our disposition of the case we find it necessary to only deal with the first issue. The issue for decision is: Whether in a prosecution for unlawful sale of narcotic drugs, proof of defendant's lack of license in an essential element of the Corpus deliciti of the criminal offense and, therefore, must affirmatively be proved by the People beyond a reasonable doubt?

I.

It should be noted at the outset that we agree with the People that this case should be decided on the basis of statutory construction. We do not consider the issue of whether the legislature may by appropriate legislation place the burden of proof on the defendant to disprove an element of a crime.

Defendants contend that one of the elements of the crime was the failure to have a license and that the prosecutor failed to prove this element of the crime. The Court of Appeals answered this contention as follows (27 Mich.App. p. 56, 183 N.W.2d p. 322):

'The same argument was made in People v. Thomas (1970), 26 Mich.App. 160, 182 N.W.2d 100.

'In the Thomas case we decided that People v. Baker (1952), 332 Mich. 320, 51 N.W.2d 240 held that under the authority of M.C.L.A. § 767.48 (Stat.Ann.1954 Rev. § 28.988) it was unnecessary for the People to prove negative allegations contained in the statute. If the defendant wished to defend by showing that he had a license, it was incumbent upon him to produce evidence tending to show that fact.'

In People v. Baker (1952), 332 Mich. 320, 51 N.W.2d 240, defendant was convicted of the possession of barbituric acid in other than the original container. Baker contended that the People must prove that she did not come within any of the exceptions under the statute. Our Court held (p. 323) that under M.C.L.A. § 767.48 (Stat.Ann.1954 Rev. § 28.988) it was not necessary to allege or prove the negative allegation of the statute.

M.C.L.A. § 767.48 (Stat.Ann.1954 Rev. § 28.988) provides:

'No Indictment for any offense created or defined by statute shall be deemed objectionable for the reason that it fails to negative any exception, excuse or proviso contained in the statute creating or defining the offense. The fact that the charge is made shall be considered as an allegation that no legal excuse for the doing of the act exists in the particular case.' (Emphasis added)

However, this section deals with pleading and not with burden of proof. Our Court has pointed out that: 'The primary purpose of an information is to plainly advise an accused of the offense with which he is charged.' People v. Gould (1926), 237 Mich. 156, 164, 211 N.W. 346, 348. The legislature, in passing the above statute was attempting to simplify the rules of pleading. A defendant is not prejudiced if an indictment fails to negative an exception, excuse or proviso, because defendant will still have notice of the impending charge. However, shifting the burden of proof goes to the heart of the judicial process. Our Court will not infer a change in the burden of proof without express statutory language to that effect. M.C.L.A. § 767.48 only deals with indictments. To the extent that People v Baker, Supra, holds that M.C.L.A. § 767.48 also applies to burden of proof, it is overruled.

II.

Defendants contend that this matter is analogous to cases involving the carrying of a concealed weapon. The Court of Appeals answered this contention in footnote 2 of its opinion in this case, wherein it stated (27 Mich.App. pp. 56--57, 183 N.W.2d p. 322):

'We are not unmindful of the line of cases, beginning with People v. Autry (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 carry a concealed weapon is part of the Corpus delicti of the crime and thus a burden of the state. P.A.1968, No. 299, added M.C.L.A. § 776.20 (Stat.Ann.1970 Cum.Supp. § 28.1274(1)), placing the burden of establishing any exception, excuse, proviso, or exemption in such prosecutions on the defendant. Thus, these cases have no longer any application to the case at bar.'

The Court of Appeals in a series of decisions beginning with People v. Autry (1967), 7 Mich.App. 480, 152 N.W.2d 55, recognized that proof of the lack of a license to carry concealed weapons was part of the Corpus delicti of the crime.

In People v. Schrader (1968), 10 Mich.App. 211, 159 N.W.2d 147, defendant was convicted of robbery armed and carrying a concealed weapon. The Court of Appeals reversed as to the count of carrying a concealed weapon. The court stated (pp. 216, 217, 159 N.W.2d p. 149):

'It will be noted that an essential element of this statute, as regards a pistol, is 'without a license to so carry said pistol as provided by law,' and this in turn is a matter of proof as to the lack of a license. * * *

'It will be noted that there is no showing of a lack of a pistol license at the time of the alleged commission of the crime. * * *

'In view of the complete failure of proof of this essential element of the crime, we hold that defendant was improperly convicted of the crime of carrying a concealed weapon * * *.'

In People v. Kelsch (1969), 16 Mich.App. 244, 245, 167 N.W.2d 777, the court said:

'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.'

See, also, People v. Baker (1969), 19 Mich.App. 480, 172 N.W.2d 892, and People v. Cardenas (1970), 21 Mich.App. 636, 176 N.W.2d 447.

Our Court has approved the reasoning advanced in this line of cases. People v. Gould (1970), 384 Mich. 71, 179 N.W.2d 617.

The Court of Appeals stated that this analogy is not applicable because the legislature changed the law and now places the burden of proof on the defendant. ¹ However the change in the law by the legislature is evidence that the State did have the burden of proof in these cases. As the Court of Appeals stated in People v. Jiminez (1970), 27 Mich.App. 633, 635, 183 N.W.2d 853, 854:

'However, in that year (1968) the legislature took notice of our decisions holding that It was the burden of the prosecutor to prove that the defendant did not come within a statutory exception. The legislature responded by enacting a law which held that, in trials for carrying concealed weapons, the burden is on the defendant to show that the comes within one of the exemptions.' (Emphasis added)

Thus, it is clear that before the enactment of M.C.L.A. § 776.20 (Stat.Ann.1971 Cum.Supp. § 28.1274(1)), proof of lack of a license was part of the Corpus delicti and the burden of such proof was on the prosecutor.

Thus, an analogous situation applies in the case of unlawful sale of narcotics. M.C.L.A. § 335.152 (Stat.Ann.1957 Rev. § 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, and upon conviction thereof shall be punished by imprisonment in the state prison for a term of not less than 20 years nor more than life.'

The elements of this crime are: (1) the lack of license; (2) sale of a prohibited narcotic drug; (3) to another identifiable person. ²

Other panels of the Court of Appeals have recognized that not having a license is an element of the crime charged under M.C.L.A. § 335.152. People v. Mallory (1966), 2 Mich.App. 359, 139 N.W.2d 904; People v. Cardenas (1970), 21 Mich.App. 636, 176 N.W.2d 447. Thus, the People must prove the element of lack of a license the same as all other elements of a crime. People v. Bagwell (1940), 295 Mich. 412, 295 N.W. 207.

The People contend that because Rios had a criminal record and that both Rios and Contreras had jobs not requiring a narcotic license, this was sufficient proof that they did not have a license. However, this was not sufficient proof for a criminal conviction. As our Court pointed out in People v. Gadson (1957), 348 Mich. 307, 310, 83 N.W.2d 227, 228:

'A verdict of guilty in a criminal case cannot properly rest on a mere preponderance of the evidence, but should be based on proof that leaves no reasonable doubt of guilt.'

See, also, People v. Morrow (1970), 21 Mich.App. 603, 606, 175 N.W.2d 523. Hence, the People failed to meet their burden of proof and the judgment cannot stand. People v. Smith (1932), 260 Mich. 486, 245 N.W. 502.

III.

The...