People v. White

• Decision Date: 24 August 1970
• Docket Number: Docket No. 4268,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nelson WHITE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 803

181 N.W.2d 803

26 Mich.App. 35

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nelson WHITE, Defendant-Appellant.

Docket No. 4268.

Court of Appeals of Michigan, Division No. 1.

Aug. 24, 1970.

Released for Publication Dec. 28, 1970.

Carl Levin, Arthur J. Tarnow, Legal Aid and Defender Association, Detroit, for defendant-appellant.

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

Before HOLBROOK, P.J., and R. B. BURNS and O'HARA, ^* JJ.

O'HARA, Judge.

Defendant was convicted by a jury of selling marijuana without a license contrary to M.C.L.A. § 335.152 (Stat.Ann.1957 Rev. § 18.1122). He was sentenced to 20 to 25 years in prison.

Initially, defendant urges that the trial court erred in refusing to instruct the jury on defendant's theory of entrapment. The trial court's refusal was proper.

Defendant denied making the sale. The defense of entrapment is not available when the offense is denied. People v. Murn (1922), 220 Mich. 555, 190 N.W. 666; Tomita v. Tucker (1969), 18 Mich.App. 559, 171 N.W.2d 564. Cf. Hansford v. United States (1962), 112 U.S.App.D.C. 359, 303 F.2d 219.

Next, defendant contends that his punishment under the statute constitutes cruel and unusual punishment. The sentence imposed falls within the limits set by the statute. See People v. Girard (1969), 18 Mich.App. 593, 171 N.W.2d 567. The nature of the punishment does not differ from that imposed for conviction of crime generally. The sentence is not inform constitutionally. People v. Collins (1969), 16 Mich.App. 667, 670, 168 N.W.2d 624.

The next assignment of error concerns the admission into evidence of the length of the sentence the accused served for a prior offense.

During cross-examination of defendant, the following transpired:

'The Court: (to witness) Have you ever been arrested and convicted? You know what 'convicted' means, don't you?

'The Witness: Yes. 'Convicted' means found guilty of a crime.

'The Court: Or pleaded guilty?

'The Witness: I have pleaded guilty to a crime.

'A (By Mr. Meyers (prosecutor), continuing): You have pleaded guilty to a crime?

'A Yes, I have.

'Q What crime was that?

'A This was possession.

'Q Possession of what?

'A Of marijuana.

'Q Possession of marijuana?

'A Possession of marijuana.

'Q And when was this that you pleaded guilty to such a crime?

'A This was in May of '64.

'Q May of 64?

'A May of 65.

'Q Are you sure of the date?

'A No, I'm not positive. It was in May.

'Q And what was your sentence?

'Mr. Evans (defendant's counsel): I'll object to that as being immaterial, your Honor.

'The Court: The sentence?

'Mr. Evans: Yes.

'The Court: What crime was he convicted of before a judge?

'Mr. Meyers: Pardon?

'The Court: Before what judge. Is that what you're going to ask him?

'Mr. Meyers: No, I was just going to ask him if he was sentenced.

'Mr. Evans: He didn't deny it. He said he was arrested and convicted.

'The Court: I overrule your objection. This is cross-examination. He is testing his credibility. He may answer the question.

'Q (By Mr. Meyers, continuing) What were you sentenced to on this crime?

'A I was sentenced to two years to ten in the Jackson Penitentiary.'

Specifically, defendant objects to having been required to state what his sentence had been on the prior conviction. Our only guideline in determining this issue appears to be the following statement in People v. Kotek (1943), 306 Mich. 408, 412, 11 N.W.2d 7, 9:

'Defendant alleges that the trial court erred in referring to his previous prison sentence. As the record indicates that such reference was not made in the presence of the jury, it would not constitute reversible error.'

We concur with the implication in Kotek that it is objectionable to introduce an accused's prior prison sentence before a jury. The fact of a prior conviction may be shown for the purpose of testing the credibility of a witness. M.C.L.A. § 600.2158 (Stat.Ann.1962 Rev. § 27A.2158). When the witness is also the accused, this rule poses a dilemma. An accused who may wish to take the stand in his own defense may be inhibited from doing so if faced with the threat of his prior record being revealed to the jury. See People v. Eldridge (1969), 17 Mich.App. 306, 169 N.W.2d 497. This inhibition is even greater if prior sentences are also revealed. While we must adhere to the rule that prior convictions are admissible for testing credibility, we see no reason to enlarge the rule to include prior sentences. It is the prior conduct undertaken by the accused and not the ensuing punishment, which is relevant. Moreover, sentences for the same offense often vary from tribunal to tribunal and from judge to judge.

We choose not to speculate whether, and to what extent, the testimony of a maximum ten year sentence may have influenced the jury and denied the defendant the constitutional guarantee of a fair and impartial trial. The introduction of the length of defendant's prior sentence was reversible error. We cannot say that it did not inure to the prejudice of the defendant. M.C.L.A. § 769.26 (Stat.Ann.1954 Rev. § 28.1096). The statute permitting evidence of prior convictions should be strictly construed. While we could reverse on this point alone, the last issue raised may well arise in the event of a new trial. Consequently, we feel obligated to address ourselves to it.

At defendant's trial, Stanley G. Hall, a chemist in the Alcohol and Tobacco Tax Division of the Internal Revenue Service, United States Treasury Department, was called by the prosecution as an expert witness. On direct examination, Mr. Hall testified to an analysis which he performed on the contents of a tobacco can, the sale of which constituted the basis for this prosecution.

'Q * * * Now, did you make an analysis of the contents of that Prince Albert can?

'A I did, * * *.

'Q And what are the results of your analysis.

'A I found the sample to contain 23 and 53 hundredths grams of marijuana before analysis.

'Q Now, are you familiar with the designations made as to narcotics by the United States Treasury Department?

'A I am.

'Q And can you tell the jury and the Court whether or not marijuana has been designated as a narcotic?

'A Marijuana has been designated as a narcotic.'

Defendant contends that the above offer of proof was insufficient to sustain the conviction under M.C.L.A. § 335.152 (Stat.Ann.1957 Rev. § 18.1122), which 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.' (Emphasis supplied.)

The term 'narcotic drug' is defined in a prior provisions of the same statute (M.C.L.A. 335.151 (Stat.Ann.1957 Rev. § 18.1121)), which provides:

'The following words and phrases, as used in this act, shall have the following meanings, unless the context otherwise requires:

'(2) 'Narcotic' includes the following:

'(f) All parts of the plant Cannabis Sativa. The term 'Cannabis' as used in this act shall include all parts of the plant Cannabis Sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds, or resin; But shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks, except the resin extracted therefrom, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. This definition is to include marihuana and all allied plants of the cannabis family which are habit forming.

'(i) Any substance or synthetic narcotic drug which the bureau of narcotics of the United States treasury department has heretofore designated as 'narcotic'.' (Emphasis supplied.)

Defendant contends that it was incumbent upon the people, in meeting their burden of proving the essential elements of the offense, to prove that the marijuana allegedly sold was narcotic in nature, I.e., that it did not consist of the exempt portions of plant Cannabis Sativa L. and was habit-forming. As there was no showing whether the marijuana consisted of exempt or non-exempt portions of the plant, defendant concludes that an essential element of the offense has not been proved.

We cannot agree. In this state the precise point is covered by both statute and case law. 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.'

In People v. Baker (1952), 332 Mich. 320, 51 N.W.2d 240, the court applied the above provision in a case similar to the one at bar.

'Defendant Gloria Baker was tried and convicted for violation of C.L.1948, § 335.102 (Stat.Ann.1949 Cum.Supp. § 18.1102), which reads as follows:

"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 or paraldehyde, Unless the...