On June 3, 1975, a jury found the defendant guilty of possession of heroin with intent to deliver, MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a). On September 22, 1975, he was sentenced to a prison term of 10 to 20 years. He appeals as of right.
Under authority of a search warrant, officers of the Saginaw Police Department vice squad searched the defendаnt’s house for narcotics on the evening of December 11, 1974. Upon entry, the police discovered the defendant and two women, Linda Turnbull and May Hamрton, in the small, ground-floor bathroom. The occupants were ordered to come out into the living room. As they emerged, an officer heard the toilet flushing and rushed into the bathroom. Just as the toilet was about to complete its flush cycle, the officer pulled a hypodermic syringe and a small envelope from the commode. Inside the envelope were found two small aluminum foil packets containing a brownish powder. When the defendant was frisked, another hypodermic syringe was found in his back pocket.
The officers found several small pieces of aluminum foil and two burned bottlecaр "cookers” on a table in the attic. They testified that the foil pieces were creased in a manner like that of foil "packets” typically used to enclose heroin.
Expert analysis of the brown powder in the packets found in the bathroom and a residue *165 found in both bottlecaps revealed the presence of heroin in each.
Both women told the police upon their arrest that they did not reside in the house. Papers and еnvelopes seized during the search indicated that the house was the defendant’s residence, and the defendant admitted as much when he testified in his defеnse.
We cannot agree with the defendant’s claim that the evidence was insufficient to charge the jury on the offense of possession of herоin with intent to deliver. Possession of heroin and an accused’s intent to deliver may be proved by circumstantial evidence and reasonable inferences therefrom.
People
v
Abrego,
Defendant’s argument that MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a), forbids only "pоssession with intent to deliver a usable dose” is convincingly refuted by the specific language of MCLA 335.314; MSA 18.1070(14), which includes in the definition of proscribed controlled substаnces any substance in which "the existence of these [opiate] isomers, esters, ethers and salts is possible within the specific chemical designation”, and by the
*166
Supreme Court’s rationale in
People v Harrington,
While the possession of the small amount of heroin found in this raid might not in itself justify a charge on intent to deliver,
cf., People v Peterson,
In conference at the closе of the evidence, the prosecutor asked for an instruction on aiding and abetting. Defense counsel objected on the ground that there was nо evidence that either of the two women had possessed heroin with intent to deliver. The trial court disagreed with defense counsel and instructed the jury by reading the text of MCLA 767.39; MSA 28.979:
*167 "Now, ladies and gentlemen of the jury, we do have a statute which is Michigan Statutes Annotated 28.979. It is a statute that was written to abolish the differences between principal and accessory before the fact or after the fact. It reads as follows:
" 'Abolition of distinction between aсcessory and principal,
" 'Section 39. Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense, or procures, counsels, aids, or abets in its commission, may hereafter be prosecuted, indicted, tried, and upon conviction bе punished as if he had directly committed the offense.’ ”
Although
conviction
of the principal is no longer necessary to charge an accessory, an aiding and abetting instruction may not be given absent proof of the
guilt
of the principal.
People v Akerley, 73
Mich App 321, 326;
There was no evidence that either of the two women arrested with the defendant possessed heroin with the intent to deliver. At most, the evidence would justify an inference that either one or both possessed the heroin and attempted to flush it
*168
away upon the untimely arrival of the police.
3
There was no evidence to connect either of the women with the items found in the attic; nor was there any evidence of any transactions bеtween the women and the defendant or third parties which would indicate their intent on the date in question. While there may have been sufficient evidencе to charge the defendant as an aider and abettor on the charge of possession alone, on the theory that the defendant acted as a lookout while the women attempted to destroy the drugs,
People v Lyons,
This disposition does not require our consideration of other errors urged on appeal.
Reversed and remanded.
Notes
Unlike
People v Peterson,
Defendаnt also claims that the lack of a "quantity requirement” renders the statute unconstitutionally vague and indefinite. We examine this claim under the three-part analysis of
People v Howell,
We perceive defendant’s real complaint to be one better couched in terms of constitutional limits on the police power.
See People v Harrington,
Indeed, it is little but speculation to surmise that one or both of the women possessed the heroin in the bathroom. Although the defendant testified that both women were known to him as heroin addicts, the only evidence of the women’s possession of heroin is their presence inside the small bathroom at the time that the heroin and syringe were being flushed away in the toilet.