After a warrant for the arrest of one John Elliott Major was issued, charging him with the offenses of illegal sale and possession оf narcotics, Major was found at apartment #308, 2852 John R., Detroit, on August 23, 1965. When police officers arrived, Major openеd the door but quickly slammed it shut. The door was subsequently forced and, on entry, the officers observed six to nine people in an apartment consisting of a living-room, bedroom and bath. All the people were charged with some offense. Defendant Mary June Hodges was charged with loitering, contrary to a provision of the Detroit Municipal Code (1964), § 28-8-8, as follows:
“No person shall Icnoivingly loitеr about, frequent or live in any building, apartment, store, automobile, *533 boat, boathouse, aeroplane or other рlace of any description whatsoever where narcotic drugs, hypodermic syringes, needles or other instruments or imрlements or empty gelatin capsules are sold, dispensed, furnished, given away, stored or kept illegally.” (Emphasis added.) Ch 187, § 9, City {(Dеtroit) Ordinances (1954).
At trial, an officer testified that he saw narcotics ■paraphernalia in every room. Among other witnеsses, some convicted of loitering, one testified that he saw narcotics instruments in the bathroom, hut no witnesses testified to seeing such instruments in the presence of this defendant. Mary June Hodges testified that she came to apartment #308 to recоver hair rolls that she had loaned to the tenant, Carol White. She stated that she was in the living room about 5 to 7 minutes before the police came and did not know there were narcotic implements or paraphernalia in the apаrtment. Defendant waived trial by jury and was convicted in the recorder’s court. Defendant contends that it is necessary to givе the word “loitering” a strained and unusual meaning in order to find that she did in fact violate the ordinance. None of the narcotic paraphernalia was introduced in evidence.
The trial court concluded that the requisite element of knowledge (knowingly loitering where narcotic drugs, hypodermic syringes, etc. * * * are stored or kept illegally) could be inferred. When (defense counsel indicated that there was no evidence that the defendant “knowingly” had any knowledge <of the illegаl presence of the narcotics or paraphernalia, the trial court said:
“Defense Attorney Posner: Now, we can’t guess that. You’re presuming—
“The Court (interposing): Well, circumstantial evidence can be used. I don’t think it wrould be un *534 reasonable inference to presume that everybody there knew all about it * *
When defense counsel noted defendant’s uncontradicted testimony that she had come to the apartment to get hex- curlеrs, the court replied, “I don’t believe her * *
Defendant seeks a reversal on the ground that the evidence was not sufficient to support a conviction.
To sustain a conviction, there must be' evidence to show (1) loitering, (2) in a place whеre narcotic drugs or narcotic paraphernalia are illegally sold, dispensed, furnished, given away, or stored, аnd (3) that the defendant, when loitering in such place, knew that the narcotic paraphernalia were illegally storеd or kept there. There must be evidence to show beyond a reasonable doubt the existence of each element of the offense. The word “loiter” has no sinister meaning and, by itself, implies no wrongdoing or misconduct or engagement in рrohibited practices.
City of Seattle
v.
Drew
(1967), 70 Wash 2d 405 (
“It is assumed that the knowledge required by the ordinance is the knowledge that the narcotic drugs or narcotic paraphernalia are sold, dispensed, etc., illegally, and not that the actor is knowingly loitering about, frequenting, etc. To say that the only knowledge required is that the actor knew he was loitering would make the mens rea requirement meaningless as it would subject to criminal prosecution persоns who knowingly loiter about, knowingly frequent or knowingly live in any place where there happens to be some kind of illegal nаrcotics activity. In other words, it would make criminal almost any type of conduct in any place where there was sоme type of illegal narcotics activity occurring, notwithstanding that the defendant had no knowledge of such activity.”
An archival Michigan case concerning possession serves as an analogue to the instant loitering charge:
“Her possession must he regarded as innocent unless shown to have been received with knowledge that they were stolen, or under сircumstances which would satisfy the jury that she believed them to he stolen. Possession itself, without evidence tending to show such guilty knowledge, could have no tendency to establish her guilt.” Durant v. People (1865),13 Mich 351 , 353.
The conduct of the defendant in visiting the borrower of her “hair rolls” in anothеr apartment of the same building where the defendant resided is patently innocent. To he convicted of violating the ordinance there must he some evidence that defendant knowingly loitered in an apartment where illegal narcotic paraphernalia was kept or sold. Requisite evidence was not introduced.
*536 While the question of unconstitutionality оf the ordinance has been urged, and that evidence was obtained in violation of the Federal and State Constitutions, it is not necessary that we pass on those issues in disposing of this matter.
Conviction is reversed. Defendant is ordered discharged therefrom.