People v. Barnett , 66 Mich. App. 99 ( 1975 )

66 Mich. App. 99 (1975) 238 N.W.2d 208

PEOPLE
v.
BARNETT

Docket No. 23468.

Michigan Court of Appeals.

Decided December 3, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and E. Brady Denton, Prosecuting Attorney, for the people.

George C. Bush, for defendant.

Before: QUINN, P.J., and R.B. BURNS and D.E. HOLBROOK, JR., JJ.

Leave to appeal applied for.

R.B. BURNS, J.

Defendant was convicted on two counts of delivering a controlled substance contrary to MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a).

Defendant claims the trial court erred by denying his motion to separate the two counts and grant individual trials. We agree.

The information charged the defendant in two separate counts of delivery of a controlled substance on two separate dates, October 11, 1973 and October 18, 1973.

2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 553, p 674, sets forth the general rule to be applied in these cases:

"The rule is equally well settled that, except as stated above, a person cannot be subjected to trial for two separate and distinct offenses at the same time. Where offenses were not committed at the same time, so they cannot be shown by the same evidence, an election is necessary. The rule which permits a prosecutor, under some circumstances, to go to the jury without an election on an information charging separate offenses, does not apply in such cases." (Citations omitted.)

This statement of law has been reiterated by our Supreme Court in People v Andrus, 331 Mich 535, 541; 50 NW2d 310, 313 (1951), and People v Johns, 336 Mich 617, 623; 59 NW2d 20, 23 (1953).

In the present case the two counts were separate offenses committed at different times and demonstrable by different evidence. The defendant was entitled to have separate trials on the two counts.

Reversed and remanded for a new trial.