People v. Kennedy , 26 Mich. App. 368 ( 1970 )

26 Mich. App. 368 (1970) 182 N.W.2d 624

PEOPLE
v.
KENNEDY

Docket No. 8,829.

Michigan Court of Appeals.

Decided August 28, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Raymond L. Scodeller, Prosecuting Attorney, and James R. Ramsey, Assistant Prosecuting Attorney, for the people.

William H. Wise, for defendant on appeal.

Before: DANHOF, P.J., and McGREGOR and QUINN, JJ.

PER CURIAM.

Defendant appeals from his conviction after jury trial of the unlicensed possession of marijuana. MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123). The people have filed a motion to affirm his conviction.

Defendant first urges error by the magistrate in binding him over for trial after the preliminary examination. However, the magistrate can only discharge the defendant if it shall appear to him "either that no offense has been committed or that there is not probable cause for charging the defendant therewith." MCLA § 766.13 (Stat Ann 1954 Rev § 28.931). On appeal, we cannot substitute our judgment for his absent a clear abuse of his discretion. People v. Davis (1955), 343 Mich. 348; People v. Spann (1966), 3 Mich. App. 444.

Defendant's second allegation of error is the trial judge's denial of his motion to dismiss at the conclusion of the people's case. His claim that there was no showing of "possession" is negated by the Supreme Court's interpretation of the word in People v. Harper (1962), 365 Mich. 494.

The questions sought to be reviewed are so insubstantial as to need no argument or formal submission. Motion to affirm is granted.