168 N.W.2d 633 | Mich. Ct. App. | 1969
PEOPLE
v.
DURR
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Marshall C. Hill, for defendant.
BEFORE: HOLBROOK, P.J., and FITZGERALD and T.M. BURNS, JJ.
PER CURIAM:
Defendant was convicted of unlawful possession of a narcotic drug (CLS 1961, § 335.153; *764 Stat Ann 1957 Rev § 18.1123) and appeals. The brief on appeal contends that the trial court should have granted a directed verdict of not guilty, based on an asserted variance between the information and proofs relating to the quantity of the drug possessed.
A motion to affirm has been filed on the ground that the question sought to be reviewed is so unsubstantial as to need no argument or formal submission. (GCR 1963, 817.5[3].) We agree. "A variance between pleading and proof as to the amount of the subject matter involved in the alleged offense is not material when the amount is not an ingredient of the offense." 5 Wharton's Criminal Law & Procedure, § 2067, p 222.
Affirmed.
