People v. Bercheny , 387 Mich. 431 ( 1972 )

387 Mich. 431 (1972) 196 N.W.2d 767

PEOPLE
v.
BERCHENY

No. 14 January Term 1972, Docket No. 53,244.

Supreme Court of Michigan.

Decided May 4, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Patricia J. Boyle, Assistant Prosecuting Attorney, for the people.

Laurence C. Burgess, for defendant on appeal.

T.E. BRENNAN, J.

Defendant was convicted, along with five others, of possession of heroin; conspiracy to possess heroin; and control of heroin.

The conviction was affirmed on appeal to the Court of Appeals, HOLBROOK, J., writing an extensive opinion treating nine issues raised in great detail. The other members of the appellate panel concurred. People v Iaconis (People v Bercheny), 29 Mich. App. 443 (1971).

We granted leave to appeal. This writer and my Brother WILLIAMS dissented from grant of leave.

Nothing presented in the briefs or oral arguments persuades me that the decision of the Court of Appeals was clearly erroneous; or that the subject matter of the appeal involves legal principles of major significance to the jurisprudence of the state; or that the decision of the Court of Appeals is in conflict with other decisions of that Court or decisions of this Court. GCR 1963, 853.1.

The case of State v McGee, 473 S.W.2d 686 (Mo, 1971), is distinguishable on its facts. McGee involved marijuana in containers; here we have heroin in open piles. In McGee, the defendant lived in the house, his presence therefore did not raise the same inference as in the instant case. In McGee, the table was cluttered with objects unrelated to narcotics. The description of the table in this case was of a far different character.

I therefore adopt the opinion of the Court of Appeals in this case, and vote to affirm conviction for the reasons stated therein.

BLACK, ADAMS, SWAINSON, and WILLIAMS, JJ., concurred with T.E. BRENNAN, J.

T.M. KAVANAGH, C.J., concurred in the result.

T.G. KAVANAGH, J. (dissenting).

In People v Sinclair, 387 Mich. 91 (1972) for different reasons, a majority of this Court held that the statute proscribing the possession of marijuana was unconstitutional. For the reasons set forth in my opinion in Sinclair, I am convinced that the statute's proscription of possession and use of heroin is equally impermissible.

In my opinion the defendant's conviction here for possession of heroin; conspiracy to possess heroin; and control of heroin should not be permitted to stand.