People v. Edwards , 37 Mich. App. 490 ( 1972 )

37 Mich. App. 490 (1972) 195 N.W.2d 35

PEOPLE
v.
EDWARDS

Docket No. 9079.

Michigan Court of Appeals.

Decided January 17, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.

Shaker Brackett, for defendant on appeal.

Before: DANHOF, P.J., and BRONSON and TARGONSKI,^[*] JJ.

DANHOF, P.J.

The defendant was convicted, after a jury trial, of illegal possession of narcotics in violation of MCLA 335.153; MSA 18.1123. He now appeals. We reverse because the people failed to prove that the defendant did not have a license to possess narcotics.

This case is controlled by the Supreme Court's decision in People v Rios, 386 Mich. 172 (1971). In Rios the Supreme Court held that a defendant's lack of a license was an essential element of the offense of sale of narcotics. The only difference between Rios and this case is that Rios involved a prosecution for sale of narcotics under MCLA 335.152; MSA 18.1122, and this case involves the prosecution for possession of narcotics under MCLA 335.153; MSA 18.1123. However, we do not regard this as a viable distinction. In pertinent part the wording of the statutes is identical. MCLA 335.152; MSA 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."

MCLA 335.153; MSA 18.1123 provides:

"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 drug shall be deemed guilty of a felony."

Reversed and remanded for a new trial.

All concurred.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.