Opinion
Docket No. 10027.
Decided February 28, 1972.
Appeal from Recorder's Court of Detroit, George W. Crockett, Jr., J. Submitted Division 1 January 11, 1972, at Detroit. (Docket No. 10027.) Decided February 28, 1972.
Joseph C. Maceri was convicted of possession of narcotics without a license. Defendant appeals. Reversed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.
James E. McCarthy, for defendant on appeal.
The defendant was charged with possession of marijuana and heroin (MCLA 335.153; MSA 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 MCLA § 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 (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 MCLA 335.153; MSA 18.1123. The prosecution in this case failed to establish that element. Defendant's motion for a directed verdict should have been granted.
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.
Reversed.