*1 431 1972] PEOPLE v BERCHENY Opinion and Seizures —Search Warrant —Probable 1. Searches Narcotics. reviewing magistrate’s a court will sustain determination of probable long cause the issuance of a search warrant so is a as substantial basis to conclude there that nárcotics were prоbably present. Seizures —Probable Cause —-Affidavit. Searches support warrant, Affidavit of a search viewed common manner, sense аfforded the sufficient proper search and his warrant action was adequately underlying he was informed circumstances which causе for issuance of a properly could warrant be based. 3. Poisons —Heroin—Possession—Control—Evidence. people presеnted “posses- facts for sufficient proscribed sion” “control” of as statute where people presented frequently evidence that defendants premises at a arrived certain remained for short there time, periods of that certain the defendants left рremises they in a manner which indicated that were under influence of when defendants entered the References for Points in Headnotes Jur, seq. 47 Am Searches et and Seizures 21 1] § Jur, Am47 Searches and Seizures 24. 2] § Poison^, 2d, Narcotics, Am Jur Drugs, 25 § 2d, 5” 21 Am Jur Criminal Law §§ 2d, 6 20 Am Jur Courts 56.§ r 2d, Narcotics, Drugs, Jur Am Poisons §§ 2d, 8 41 Am Jur 9 41 Am Jur Indictments Informations § 2d, Indictments and Informations § Jur, Jur Jur seq. 53 Am 20 Am Am et Trial 497§ 2d, Courts 56.§ 2d, 21 13 25 Criminal Law 356. § 2d, Drugs, Narcotics, Jur Am and Poisons 17.§ Mich 431 through premises they procedure went certain and the door opened them, night was then of a raid were found a small room in close
proximity paraphernalia to heroin and narcotiс and that one defendant had blood marks on his and a mark and shirt two . arm, por- red dots on his and another had sears on the inner 335.153). (MOLA tions of arms bоth Conspiracy- —Poisons—Heroin. Proof of and control of heroin was sufficient to allow jury heroin existed. Preliminary 5. Criminal Law — Examination —Probаble Reasonable Doubt. preliminary cause at a examination does require guilt the of a defendant be established beyond a rеasonable doubt. Appeal Magistrate—-Preliminary Criminal Law — and Error — Examination —Probable Cause —-Discretion. Michigan Appeals may judgment not substitute its for that of the unless there has been a clear abuse in discretion his determination of cause. Heroin—Magistrate—Binding 7. Poisons — Over for Trial —Evi- dence. uphold magistrate’s in Evidence sufficient to action bind- ing charges in defendants over trial circuit court on and contrоl of heroin where defendants found in were one room with heroin paraphernalia in midst, narcotic their several defendants aрpeared intoxication, to be under narcotic there was no evi- beverage consumption, dence of alcoholic there was evidence being used, prior of heroin and defendants to that date were entering leaving (MCLA 335.153, seen often 750.157a). Duplicity—Offensеs. Indictment Information — duplicity An information not defective for if offenses distinct charged. are included within the offense Indictment Information —Pоssession of Heroin —Control of Heroin —Amendment Information. charging possession Amendment an information in separate counts, original оf heroin where the information charges, form, consolidated the was one of and no error pre- by to afford defendants the failurе additional committed following amendment. proceedings trial Jury Prejudice. — adequately safeguarded rights were where the trial Defendаnt’s jury “anything you occurred that asked the court during regarding past week the cir- may heard of have building prej- any in that would other' cáse this cumstances any way”, your pertaining case to this udice verdict unison, negative response in jury audibly indicated request, jurors, upon did not raise hands to indicate their prejudice. existence of Jury—Prejudice—Discretion. and Error — Judge presiding observing trial and the occurrences рosition and elsewhere is a better determine courtroom any part jurors probability prej- conduct rights is an udicial than court the action taken the trial court Should not be appears disturbed on unless it the court’s discre- improperly tion has been exereised. *3 12. Criminаl Eecords —Moot Law —Witnesses—Criminal Ques- tion. prejudicial of it was error for the trial court Question deny prosecutor a defense mоtion to instruct not to question past defendants as to their criminal records moot question did not take the stand did arise.
T. G. of Poisons —Heroin-—Possession Heroin —Use of Heroin— Statutes —Constitutional Law. possession Conviction of heroin should not be to stand be- of proscription and use of of is unconstitutional. from of Hol- Appeals, Division brook, P. J., and R. B. Burns JJ„. and O’Hara, affirming Blair Wayne, Moody, Jr., J. Submitted (No. 14 Term January January Docket No. 53,244.) Decided May 4, 1972. Mich, App affirmed. Mich Opinion op the Court of was convicted of
Andrew heroin, of control1 of appeаled Defendant to the Court Ap heroin. Defendant Affirmed. appeals. Affirmed. peals. Robert Kelley, Frank J. A. General, Attorney Cahalan, William L. DerengosM, General, Solicitor Carnovale, Dominick R. Prosecuting Attorney, and Patricia Appellate Department, Boyle, Chief, for the Prosecuting Attorney, people. Assistant Burgess, Laurence C. for defendant appeal. convicted, T. Defendant was with five others, along control of heroin. possess heroin;
spiracy affirmed on to the Court appeal The conviction was opin- an еxtensive writing Appeals, Holbrook, nine detail. The ion raised treating great issues concurred. other panel members 29 Mich (People App v Iaconis v Bercheny), (1971). and my This writer granted appeal. We leave to Brother from of leave. grant dissented Williams oral argumеnts briefs or
Nothing presented the decision of the Court persuades me subject or erroneous; clearly matter involves legal principles state; major significance jurisprudence or decision of the Court Appeals or deci- with other of that Court conflict dеcisions *4 853.1. sions of this Court. GCR (Mo, of State 473 SW2d The case v McGee, in facts. McGee 1971), on its distinguishable we have containers; here marijuana in vоlved in lived McGee, In defendant open piles. raise the same his therefore did not house, presence People v T. G. Kavanаgh, McGee, instant In as in the case. table inference objects unrelated to narcotics. cluttered with of the table in this case whs оf a far The description different character. adopt opinion
I therefore affirm conviction for case, in this vote to thеrein. reasons^stated JJ., Williams, Black, Adams, Swainson, T. curred with concurred in result.
T. M. C. Kavanagh, In (dissenting). T. Gr. Sinclair, Mich for different (1972) reasons, of this majority held statute pro- unconstitu- marijuana scribing the reasons opinion tional. For forth my set Sinclair, I that the proscrip- am convinced and use of heroin is tion of equally imper- missible.
In here for opinion defendant’s conviction my of heroin; and control of heroin should be stand.