People v. Moore

30 Mich. App. 451 (1971) 186 N.W.2d 788

PEOPLE
v.
MOORE

Docket No. 7659.

Michigan Court of Appeals.

Decided February 16, 1971. Leave to appeal denied May 19, 1971.

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.

Robert M. Crites, for defendant on appeal.

Before: QUINN, P.J., and BRONSON and O'HARA,^[*] JJ.

Leave to appeal denied May 19, 1971. 384 Mich. 841.

BRONSON, J.

Defendant was charged with and convicted of unlawful sale of narcotics^[1] and unlawful possession of narcotics.^[2] Following defendant's conviction by a jury in Genesee County Circuit Court, the defendant was sentenced to 40 to 50 years imprisonment.

Evidence adduced at trial established that the defendant sold the illegal narcotics to two police informers, who secretly tried to inject the substance into test tubes which had been taped to their arms for the purpose of preserving the contraband. Although two police informers were present, only one informer was successful in leaving the premises with the test tube containing the alleged contraband. The test tube was turned over to the police, and after examination, was found to contain 1 cc of heroin.

On appeal, defendant contends that the prosecution failed to meet its burden of proving the essential elements of the crimes. Defendant argues that the prosecution bears the burden of negating the application of MCLA § 335.58 (Stat Ann 1970 Cum Supp § 18.1078), which provides certain exceptions to the conduct proscribed by the sale and possession statutes.

We disagree. In Michigan, by statute^[3] and case law,^[4] it is incumbent upon the defendant, not the People, to prove that he comes under an exception to the statutory offense.

Defendant also contends that since the prosecutor recovered only 1 cc of heroin, the evidence was insufficient to support the conviction for sale and possession. Defendant fails to cite any Michigan authority for his position, and we were unable to find any. Heroin is defined as a narcotic by statute,^[5] and, unless an exception is applicable, sale or possession of "any narcotic drug" is proscribed.^[6] Furthermore, the 1 cc of heroin, introduced into evidence by the prosecution, is not a minuscule amount. The quantity is sufficient to be applied to the use commonly made of heroin.

Defendant's remaining issues on appeal relate to the propriety of the jury instructions. This Court's opinion in People v. Kinsman (1969), 16 Mich. App. 611, 613, is dispositive of defendant's assignment of error:

"Although afforded the opportunity, defendant did not object to the charge as given on the grounds presently asserted. We do not consider such errors. GCR 1963, 516.2; People v. Mallory (1966), 2 Mich. App. 359."

Affirmed.

All concurred.

NOTES

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

[1] MCLA § 335.152 (Stat Ann 1957 Rev § 18.1122).

[2] MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123).

[3] MCLA § 767.48 (Stat Ann 1954 Rev § 28.988).

[4] People v. Baker (1952), 332 Mich. 320; People v. Thomas (1970), 26 Mich. App. 160; People v. Nelson White (1970), 26 Mich. App. 35.

[5] MCLA § 335.151 (Stat Ann 1957 Rev § 18.1121).

[6] See fn 1 and 2, supra.