People v. Thomas, Docket No. 7415
| Decision Date | 25 August 1970 |
| Docket Number | Docket No. 7415,No. 1,1 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Maurice THOMAS, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Gerald F. Wigle, Warren, John E. MacDonald, Wayne, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas R. Lewis, Asst. Pros. Atty., for plaintiff-appellee.
Before R. B. BURNS, P.J., and LEVIN and CHURCHILL, * JJ.
Defendant appeals his conviction by a jury of the crime of unlawful possession of narcotics. M.C.L.A. § 335.153 (Stat.Ann.1957 Rev. § 18.1123).
The only testimony relating to the circumstances of the offense was that of the arresting police officers. They testified that shortly after midnight they went to an apartment building at 83 Edmund Place in Detroit after receiving radio information that robbery suspects had been seen entering the building. Three of the officers went into the building while the fourth went around to the rear where he saw defendant drop a gun and narcotics from the window of apartment 215, which was known to be frequented by narcotics addicts. After hearing what he had observed the officers who were inside the building knocked on the door of the apartment several times, received no response, and forced their way in. Defendant was found standing alone in the apartment and was placed under arrest for violation of the narcotics laws. The police had neither arrest nor search warrants.
Defendant contends that an essential element of the offense was not established because the people failed to introduce proof that he was unlicensed to possess the narcotics (principally heroin) and therefore the conviction cannot stand. The People contend the excuse of license must be proven by the defendant. In People v. Baker (1952), 332 Mich. 320, 51 N.W.2d 240, a defendant was tried and convicted of violation of M.C.L.A. § 335.102 (Stat Ann.1970 Cum.Supp. § 18.1102) which now reads:
'It shall be unlawful for any person, firm, partnership, association or corporation, other than a drug manufacturer or wholesaler, licensed physician, licensed dentist, licensed veterinarian, licensed druggist or pharmacist, hospital, or police or public health laboratory, to have in possession any barbituric acid and any of its derivatives, chloral hydrate, paraldehyde, or amphetamine and methamphetamine and their salts and derivatives, unless the same are contained in the original container, as dispensed to them.'
On appeal it was urged that the conviction could not be sustained because the People failed to prove that defendant was not any of the parties enumerated under the statute. The Court said:
'The people urge that proof of the negative allegations set forth in the statute, being within the knowledge of defendant, she must show that she comes within the exceptions. The people also urge that under C.L.1948, § 767.48, it was not necessary to aver the negative allegations mentioned in the statute and therefore not incumbent upon the people to prove the same.
'Section 767.48, C.L.1948, Stat.Ann. § 28.988, provides:
'We concur with the people's claim and hold that it was not necessary to allege or prove the negative allegations.'
M.C.L.A. § 335.153 (Stat.Ann.1957 Rev. § 18.1123) states that '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...
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