author: J. H. Gillis, P. J.

text:
    PEOPLE v BERG
    Docket Nos. 77-4069, 77-4070, 77-4071.
    Submitted August 3, 1978, at Detroit.
    Decided September 19, 1978.
    Leave to appeal applied for.
    Defendant, Dr. Albert J. Berg, D.O., was charged with delivery of a controlled substance without authorization. The Oakland Circuit Court, Robert B. Webster, J., denied defendant’s motion to quash the information and the Court of Appeals granted defendant an interlocutory appeal. Defendant alleges that a licensed physician is exempt from prosecution under the Controlled Substances Act. Held:

    A licensed physician is not exempt from prosecution under the Controlled Substances Act and the act is sufficiently clear to provide notice of what conduct is illegal.
    Affirmed.
    1. Drugs and Narcotics — Physicians—Criminal Law — Statutes— Controlled Substances Act.
    A licensed physician is protected from prosecution under the controlled substances act only to the extent that his activities are performed within the course of his professional practice (MCL 335.341[41]; MSA 18.1070[41]).
    2. Statutes — Amendments—Interpretation of Statutory Changes.
    A statutory amendment made soon after controversies arise in regard to the statute can be taken as a legislative interpretation of the original act rather than a substantial change of it.
    References for Points in Headnotes
    [1] 25 Am Jur 2d, Drugs, Narcotics, and Poisons § 16 et seq.

    61 Am Jur 2d, Physicians, Surgeons, and Other Healers § 91.
    [2] 73 Am Jur 2d, Statutes § 343.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.

      Rothblatt, Rothblatt, Seijas & Peskin and Peres, Carr, Jacques, Batchik & Schmidt, for defendant.
    Before: J. H. Gillis, P. J., and D. E. Holbrook and R. M. Maher, JJ.
   J. H. Gillis, P. J.

Defendant, a licensed osteopathic physician, was charged with three counts of delivery of a controlled substance in violation of MCL 335.341(l)(b); MSA 18.1070(41)(l)(b). This Court granted an interlocutory appeal after defendant’s motion to quash the information was denied by the Oakland County Circuit Court.

The facts essentially are as follows. Defendant was visited at his office on three occasions by Donald Hollifield, an agent of the Department of Licensing and Regulation. Mr. Hollifield had never met defendant prior to the first of these visits. Defendant performed no physical examination, nor did he obtain any medical history during any of the three transactions.

On February 3, 1977, defendant sold Mr. Hollifield a paper bag containing 1,000 phendimetrazine tablets in return for $500. On February 9, 1977, defendant again sold the agent 1,000 amphetamine capsules for $500. Finally, on February 15, 1977, defendant handed Mr. Hollifield 7,000 amphetamine capsules for $3,350.

Defendant claims that as a licensed physician he is exempt from prosecution under § 41(l)(b) of the Controlled Substances Act. MCL 335.341(l)(b); MSA 18.1070(41)(l)(b). We disagree.

Defendant cites People v Kerwin, 56 Mich App 483; 224 NW2d 113 (1974), in support of his claim. That case involved a 76-year-old physician who wrote prescriptions on two occasions for various controlled substances. During each visit two prescriptions were written for the patient and one prescription was written for a girl friend or wife said to have trouble sleeping. Dr. Kerwin charged $14 on the first occasion and $11 on the second one.

In ordering the information quashed, the Kerwin Court did not hold that physicians are completely exempt from prosecution under the Controlled Substances Act. Rather, it held that while § 41 prohibits any person from manufacturing, delivery or possessing with intent to manufacture or deliver, it did not apply to the act of writing a prescription for controlled substances.

In People v Alford, 73 Mich App 604; 251 NW2d 314 (1977), another panel of this Court held that writing a prescription constituted delivery and was therefore one of the proscribed activities under § 41. While we believe the Alford decision is correct on this point, we need not resolve this conflict. The instant case involves hand delivery of a controlled substance which is one of the activities expressly proscribed by § 41.

The relevance of Alford to the instant case is its holding that a practitioner is subject to prosecution under § 41. His activities are protected only to the extent that they are performed within the course of professional practice. Alford, supra, at 614. The Court, relying upon the construction given the comparable Federal statute in United States v Moore, 423 US 122; 96 S Ct 335; 46 L Ed 2d 333 (1975), concluded that the type of registration contemplated by the act was one that limited a practitioner to dispensing and using drugs in the course of professional practice and research. Alford, supra, at 611-612.

We agree with this construction of the statute. However, we believe there is an additional basis for finding defendant may be prosecuted under § 41 of the act.

In relevant part, § 41 reads as follows:

"Except as authorized by this act, it is unlawful for any person to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance.” (Emphasis supplied.) MCL 335.341; MSA 18.1070(41).

The foregoing language indicates that all persons are subject to prosecution for violation of this section of the act unless they are given a specific authorization to do one or all of . the proscribed activities. Such authorization is provided by § 32 of the act. Persons who are registered with the administrator may "possess, manufacture, distribute, prescribe, dispense or conduct research with those [controlled] substances to the extent authorized by their registration and in conformity with the other provisions of this chapter”. (Emphasis supplied.) MCL 335.332; MSA 18.1070(32X2). This section does not grant registrants a carte blanche to engage in drug trafficking. By its terms it is only a limited authorization to engage in the enumerated activities. It is necessary to examine both the registration itself, as well as the other provisions of chapter 3 of the act, to determine the parameters of this authorization.

As noted above, the Alford Court concluded that the registration itself limited a practitioner’s activities.

Examination of the "other provisions of chapter 3” likewise leads us to conclude that defendant’s activities were not within the scope of his authorization. Section 31 of the act gives the administrator the power to "promulgate rules * * * relating to the registration and control of the manufacture, distribution and dispensing of controlled substances”. MCL 335.331(1); MSA 18.1070(31X1).

We read this section to mean the administrator may determine the extent of a registrant’s authority to manufacture, distribute or dispense a controlled substance.

Pursuant to this power, the administrator has promulgated two rules of relevance to our inquiry. Rule 70 provides:

"A prescriber in the course of his professional practice only, may dispense or administer, or both, a controlled substance listed in schedules 2 to 5 or he may cause them to be administered by a nurse or intern under his direction and supervision.” (Emphasis supplied.) AACS 1973, R 338.3170(1).

For the purposes of this rule, "prescriber” is synonymous with "practitioner” and means "a doctor of medicine, osteopathy or podiatry, a veterinarian or a dentist licensed to prescribe by the laws of this state”. AACS 1973, R 338.3102(3). Defendant was a licensed doctor of osteopathy and therefore was a "prescriber”.

When a physician has delivered a controlled substance to an ultimate user he has "dispensed” that substance. MCL 335.304(2); MSA 18.1070(4X2).

By promulgating Rule 70, the administrator has determined the limit of a physician’s authorization to deliver a controlled substance to an ultimate user. When acting outside the course of his professional practice, a physician is acting outside the scope of the authorization granted by § 32 of the act.

In addition to Rule 70, supra, the administrator has promulgated Rule 41(c), which states that a registrant "shall provide effective controls against theft or diversion of controlled substances”. AACS 1973, R 338.3141(1). This provision imposes an affirmative duty upon a practitioner to take measures to prevent the diversion of controlled substances to illicit channels. It would be clearly inconsistent with this rule to hold that a physician is authorized by his status as a registrant to engage in drug trafficking.

We conclude that Rules 70 and 41 limit a licensed physician’s authority to deliver controlled substances to those occasions when the physician is acting within the course of his professional practice. A physician is not authorized to divert controlled substances to illicit channels.

Since § 41 provides that it is unlawful for "any person” to deliver controlled substances unless authorized, it follows that a physician acting outside the scope of his authorization may be prosecuted under this section. The Legislature did not intend administrative sanctions such as loss of a license to practice medicine to be the sole remedy for such improper conduct. Section 44 of the act provides:

"Any penalty imposed for violation of this act is in addition to, and not in lieu of, any civil or administrative penalty or sanction otherwise authorized by law.” MCL 335.344; MSA 18.1070(44).

Finally, we note that subsequent to the events involved here, the Legislature amended the controlled substances act to address the issues involved in Kerwin, supra, Alford, supra, and the instant case. 1978 PA 147, effective May 12, 1978. At oral argument defendant advanced the proposition that the Legislature, by this amendment, made illegal what previously had been legal. We do not believe this amendment changed the law applicable to the instant case. An amendment made soon after controversies arise in regard to a statute can be taken as a legislative interpretation of the original act rather than a substantial change of it. Harper v Progressive Casualty Ins Co, 79 Mich App 764; 263 NW2d 1 (1977). In light of the Kerwin-Alford conflict we believe that is what the Legislature has done.

Defendant’s second argument, that he did not have notice that his activities were illegal, is without merit. The statute is sufficiently clear to provide notice that defendant’s activities were illegal. Moreover, the Opinion in United States v Moore, supra, interpreting the Federal act upon which the Michigan statute was modeled had been released prior to the time of defendant’s activities. The Alford decision was released on February 8, 1977. Two of the transactions involved here took place after that date.

Affirmed.


source: Caselaw Access Project

author: B. M. Hensick, J.

license: Public Domain

text:
    HENDRICKS v STERLING HEIGHTS POLICE AND FIRE DEPARTMENT CIVIL SERVICE COMMISSION
    Docket Nos. 77-4380, 77-4381.
    Submitted June 21, 1978, at Detroit.
    Decided September 19, 1978.
    Leave to appeal applied for.
    Carl Timm, a Sterling Heights police officer, was suspended from his employment. He appealed to the Police and Fire Department Civil Service Commission of the City of Sterling Heights. The commission ruled the suspension improper and ordered that Timm be reinstated. Leonard Hendricks, Sterling Heights City Manager, filed a complaint for superintending control in circuit court, seeking reversal of the commission’s ruling. Timm intervened as a party defendant. The Macomb Circuit Court, Raymond R. Cashen, J., reversed the decision of the commission and remanded the matter to the commission for further proceedings. Timm and the commission each appeal, Timm alleging that the statute allows for appeal to circuit court only for an aggrieved employee while Hendricks alleges that he is given the right to appeal by the Michigan Constitution. The Court of Appeals consolidated the appeals for hearing and decision. Held:

    The city manager, as a city officer, has no standing to appeal a decision of the city’s civil service commission established under the firemen’s and policemen’s civil service act. The statute which enables municipalities to establish such civil service commissions allows for appeals of a commission’s decision only by the aggrieved employee. The decision of the commission is intended by the Legislature to be the final decision of the city. The circuit court’s order was therefore void.
    Vacated, and the decision of the commission is reinstated.
    1. Municipal Corporations — Civil Service Commissions — Firemen —Policemen—City Manager — Appeal and Error — Statutes.
    A city manager does not have standing to appeal to circuit court a decision of the city’s civil service commission concerning the removal of a city fireman or policeman; such an appeal is provided by statute for the aggrieved employee but the Legislature intended that a decision by the civil service commission should be the final decision of the city, and therefore' a city officer may not appeal the commission’s decision (MCL 38.514; MSA 5.3364).

      Reference for Points in Headnotes
    [1, 2] 15A Am Jur 2d, Civil Service § 81.

      2. Municipal Corporations — Civil Service Commissions — Administrative Procedures Act — City Manager — Statutes.
    The Administrative Procedures Act does not directly apply to local civil service commission proceedings, but may be applied by analogy in certain cases; a city manager, as a member of the agency which is engaged in the suspension from employment of a city police officer, is not a "person” within the meaning of the Administrative Procedures Act and therefore lacks standing to seek judicial review of a decision of the city’s civil service commission (MCL 24.301, 24.205[4]; MSA 3.560[201], 3.560[105] [4]).

      Stewart, O'Reilly, Cornell, Lascoe & Rancilio, P. C. (by Frederick M. Cross, Jr. and Paul J. O'Reilly), for plaintiff.

      Emil E. Cardamone, for the Sterling Heights Police and Fire Department Civil Service Commission.

      Thomas W. Jakuc, for Carl Timm.
    Before: D. C. Riley, P. J., and M. F. Cavanagh and B. M. Hensick, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   B. M. Hensick, J.

Intervening defendant, Officer Carl Timm, employed by the Sterling Heights Police Department, was suspended from his job. He appealed to defendant Civil Service Commission of the City of Sterling Heights. The commission ruled that the suspension was improper and ordered that Officer Timm be reinstated with back pay and that no charges be officially recorded.

Plaintiff, Sterling Heights City Manager, filed a complaint for superintending control in Macomb County Circuit Court seeking reversal of defendant’s decision. The trial court reversed the commission, stating that it had committed an error of law in ruling that Officer Timm’s suspension was improper.

The issue here involves a section of the firemen and policemen civil service act, 1935 PA 78; MCL 38.501 et seq.; MSA 5.3351 et seq. Section 14 of that act provides in relevant part:

"In event that the civil service commission shall sustain the action of the removing officer the person removed shall have an immediate right of appeal to the circuit court of the county wherein the city, village or municipality is situated. * * * The circuit court’s decision shall be final, saving the employee, however, the right to petition the supreme court for a review of the court’s decision. The removing officer and the person sought to be removed shall at all times, both before the civil service commission and upon appeal, be given the right to employ counsel to represent either of them before said civil service commission and upon appeal; should the person removed elect to appeal to the circuit court as hereinbefore provided.”

Defendant Timm contends that this section provides for appeal only by the aggrieved employee. Plaintiff argues that, although § 14 makes no mention of the city’s right to appeal an adverse ruling by defendant commission, Const 1963, art 6, § 28 gives him this right. That constitutional provision makes all final decisions of administrative officers, which are judicial or quasi-judicial and affect private rights, subject to direct review by the courts as provided by law.

The resolution of this appeal does not require an interpretation of Const 1963, art 6, § 28. Rather, the decisive question is whether plaintiff has standing to appeal a decision of the city’s Civil Service Commission. "Only a person with a 'legal standing’ can resort to the courts for relief from action of an administrative agency, whether the party resorting to the court avails himself of a statutory or nonstatutory remedy.” 2 Am Jur 2d, Administrative Law, § 575, p 393. We conclude that plaintiff lacked standing to obtain review in the circuit court, and therefore, the circuit court’s order was void.

The courts of this state have not addressed the precise question of a governmental officer’s standing to contest the decision of an appeal board which reviews his decision. The majority of other courts which have addressed this issue have concluded that an administrative officer lacks standing to appeal the decision of a reviewing agency.

"The weight of authority negatives the right of an administrative officer of a governmental entity, or even the governmental entity or any representative thereof, to attack or avoid the decision of an agency of such governmental entity, which is authorized to review and reverse the determination of such administrative officer and does review and reverse that determination, except to the extent that legislation gives such administrative officer, the governmental entity or its representative the right to do so.” (Citations .omitted.)

State ex rel Broadway Petroleum Corp v City of Elyria, 18 Ohio St 2d 23, 29; 247 NE2d 471 (1969), see also Mead v Dept of Health, Welfare & Rehabilitation, Services to the Blind Div, 91 Nev 152; 532 P2d 611 (1975), Pritchard v Div of Vocational Rehabilitation, Dept of Health & Social Services, 540 P2d 523 (Wy, 1975).

In the instant case, the city’s Civil Service Commission was authorized to review and reverse the determination of the city manager regarding Officer Timm’s suspension. The City of Sterling Heights has adopted by ordinance the provisions of 1935, PA 78. The title to this act provides in relevant part:

"AN ACT to establish and provide a board of civil service commissioners in cities, villages and municipalities having full paid members in the fire and/or police departments; * * * to regulate the transfer, reinstatement, suspension and discharge of said officers, firemen and policemen * * * .”

Section 2 of the act provides that the Civil Service Commission shall consist of three members, one to be appointed by the principal elected officer of the city with approval of the legislative body, the second to be elected by a majority vote of the fire and/or police department members, and the third member to be selected by the other two members. Thus, the Legislature saw fit to make the Civil Service Commission, comprised of three members with variable backgrounds and allegiances, ultimate guardian of the firemen’s and policemen’s interest at the administrative level, as opposed to a single individual such as the city manager. Kansas City v Reed, 546 SW2d 727 (Mo App, 1977). The fact that the Legislature was silent regarding appeals by the city, while it specifically addressed appeals by the removed party, is significant. It indicates that, in drafting the statute, the Legislature considered the decision of the Civil Service Commission as a final decision of the city and thus the city would not appeal its, own decision.

The act provides for significant ties between the city and the commission. Section 9 provides that the commission shall make an annual report to the mayor and that any suggestions for changes in the commission shall be made to the mayor in this report. Section 8 provides that it is the duty of the city to aid the commission in carrying out the provisions of this act, including providing offices, supplies and printing services. The city clerk is the "ex officio” clerk of the commission (§ 5), and the city attorney represents the commission in legal matters. (In this matter, independent counsel was obtained to advise defendant Civil Service Commission.) In addition, §4 provides that the mayor "shall at any time remove any commissioner for incompetency, dereliction of duty, malfeasance in office or any other good cause”. The removal is for a period of 10 days and if at the end of the 10-day period the commissioner fails to answer, he is deemed removed; otherwise the statute provides that the mayor shall file a petition in the circuit court for confirmation of the removal.

The city manager, in discharging employees, is acting in an executive or administrative capacity on behalf of the city, and the Civil Service Commission, in its review of the city manager’s actions as an agency established by the city, is moving within the ambit of the same function. It was not legislatively intended that governmental agencies become adversaries. Lee v Civil Aeronautics Board, 96 US App DC 299; 225 F2d 950 (1955). To serve its purpose the Civil Service Commission must have final authority. Otherwise it will face constant judicial appellate review from persons not adversely aggrieved in their personal capacities. Mead v Dept of Health, Welfare & Rehabilitation, Services to the Blind Div, supra.

Of particular significance are the decisions of the Missouri Supreme Court. Missouri has a constitutional provision substantially identical to Const 1963, art 6, § 28. See Viculin v Dept of Civil Service, 386 Mich 375, 384, n 10; 192 NW2d 449 (1971); 1 Official Record, Constitutional Convention, 1440-1452, 1463-1478, 1483-1487.

In Kansas City v Reed, supra, the Director of Liquor Control denied a bartender’s application for renewal of a license. The Liquor Control Board of Review reversed the decision of the director. The director and the city then sought review in circuit court under the Missouri Administrative Procedures Act, and the court reversed the board’s decision and reinstated the decision of the director.

On appeal, the Missouri Court of Appeals reversed the circuit court for lack of jurisdiction. The Court observed that the constitution gave a right of review of administrative decisions as provided by the legislature, under the same constitutional provision noted previously which is similar to art 6, § 28, but that without express statutory authority, no review of administrative action was provided for political subdivisions of the state. The Court further noted, p. 733, citing Mortensen v Pyramid Savings & Loan Ass’n of Milwaukee, 53 Wis 2d 81; 191 NW2d 730 (1971), "[u]nless the statute expressly so provides, an aggrieved party is one outside the decisional process who is directly affected”. See, also: Kostman v Pine Lawn Bank & Trust Co, 540 SW2d 72 (Mo, 1976), State ex rel Rouveyrol v Donnelly, 365 Mo 686; 285 SW2d 669 (1956), Scearce v Simmons, 294 SW2d 673 (Mo App, 1956).

We note that under the provisions of the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq., plaintiff would also lack standing to seek judicial review. Although that legislation is not directly applicable to local civil service commission proceedings, it will be applied by analogy in certain cases. Justewicz v Hamtramck Civil Service Commission, 65 Mich App 555; 237 NW2d 555 (1975). In the judicial review section of the APA, MCL 24.301; MSA 3.560(201), appears the provision:

"When a person has exhausted all administrative remedies available within an agency, and is aggrieved by a final decision or order in a contested case, whether such decision or order is affirmative or negative in form, the decision or order is subject to direct review, by the courts as provided by law.” (Emphasis added.)

MCL 24.205(4); MSA 3.560(105)(4) defines a "person” as "an individual, partnership, association, corporation, governmental subdivision or public or private organization of any kind other than the agency engaged in the particular processing of a rule, declaratory ruling or contested case”. (Emphasis added.) Therefore, under the APA, the city manager, as a member of the agency which is engaged in the case of Officer Timm’s suspension, would not be a "person” and therefore would lack standing to seek judicial review.

The city, by adopting this act, has chosen the Civil Service Commission to be an agency of the municipality for enforcing the requirements of the civil service statute and, in the instant case, for making the city’s final decision, when called upon to do so, whether a policeman will be suspended. Since defendant makes the city’s final administrative decision, plaintiff, a lesser administrator with respect to this determination, has no standing to dispute the city’s own decision. In essence, the city, in the person of plaintiff, its city manager, cannot be aggrieved by its own decision rendered by defendant. Therefore, we conclude the city manager had no standing to seek judicial review of the defendant Civil Service Commission’s decision.

Accordingly, the decision of the circuit court is vacated and the decision of the defendant Civil Service Commission is reinstated.


author: Beasley, J. N. J. Kaufman, P. J.

text:
    PEOPLE v WALTER JOHNSON PEOPLE v EDGAR JOHNSON
    Docket Nos. 77-2389, 77-2398, 77-2309, 77-2397.
    Submitted June 15, 1978, at Detroit.
    Decided September 20, 1978.
    Leave to appeal applied for.
    Walter Johnson and Edgar Johnson were each convicted, on their pleas of guilty, of armed robbery and possession of a firearm in the commission of a felony, in each of two separate robberies, in Detroit Recorder’s Court, Samuel H. Olson, J. Both defendants appeal, alleging several errors. The appeals were consolidated for hearing and decision. Held:

    1. The plea-taking procedure was not erroneous. Each defendant stated that he understood all of his rights and wished to plead guilty.
    2. There was sufficient factual basis for acceptance of the guilty pleas, except for Walter Johnson’s conviction on the felony-firearm count. The felony-firearm statute requires that a defendant personally carry or have in his possession a firearm in order to be found guilty under the statute. There is no indication that Walter Johnson was armed at the time of the robberies.
    3. The felony-firearm statute is an act complete within itself, and does not violate the constitutional prohibition against revising, altering or amending a law by reference to its title only.
    4. The felony-firearm statute is a sentence-augmenting statute, which was intended by the Legislature to require a specific additional penalty where a firearm is carried or possessed at the time of committing or attempting to commit a felony. A conviction under the statute does not involve double jeopardy, double sentence, or double punishment.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 115 et seq.

    67 Am Jur 2d, Robbery § 9.
    79 Am Jur 2d, Weapons and Firearms §7 et seq.

    [2] 73 Am Jur 2d, Statutes §§ 137-141.
    [3] 21 Am Jur 2d, Criminal Law §§ 185-187, 189.
    [4] [No reference]
    [5] 79 Am Jur 2d, Weapons and Firearms § 24.
    [6] 21 Am Jur 2d, Criminal Law §§ 538, 570.
    [7] 21 Am Jur 2d, Criminal Law §§ 182, 183, 188.
    [8] 21 Am Jur 2d, Criminal Law § 115 et seq.

    67 Am Jur 2d, Robbery §§ 8, 9.

      Affirmed, but Walter Johnson’s convictions on the felony-firearm charges are reversed.
    N. J. Kaufman, P. J., dissents on the ground that under the language of the informations it would be impossible to prove-one charge, either the armed robbery or the carrying or possession of a firearm in the commission of a felony, without the identical facts necessary to prove the other charge. Therefore, the defendants were twice convicted and punished for the same offense. Judge Kaufman also would hold that Walter Johnson could be convicted on the felony-firearm charges as an accessory, were it not for the invalidity of the convictions because of double jeopardy.
    Opinion of the Court
    1. Criminal Law — Statutes—Felony-Firearm—Personal Liability —Aiders and Abettors.
    The felony-firearm statute, which makes carrying a firearm during the commission of a felony not excepted by the statute a separate punishable offense, requires for a finding of guilt that a defendant personally carry or have in his possession a firearm; an aider and abettor in an armed robbery, who was not armed, may not be convicted of violation of the felony-firearm statute (MCL 750.227b; MSA 28.424[2]).
    2. Constitutional Law — Criminal Law — Statutes—Felony-Firearm — Title-Object Clause.
    The felony-firearm statute is an act complete within itself, and as such it does not violate the constitutional proscription against revision of a statute by reference to its title only (Const 1963, art 4, § 25, MCL 750.227b; MSA 28.424[2]).
    3. Criminal Law — Single Act — Multiple Charges — Legislative Intent.
    A single act may give rise to charges under more than one criminal statute where there is a clear legislative intent to do so; but where one of two offenses charged is a necessarily included offense of the other, recent case law appears to hold that convictions for both offenses are precluded.

      4. Criminal Law — Statutes—Felony-Firearm—Sentencing—Intent of Legislature.
    The intent of the Legislature in enacting the felony-firearm statute was to provide an additional, mandatory prison sentence where a firearm was carried or possessed in the commission of a felony; the statute is a sentence-augmenting statute and as such is not within or subject to the greater offense-lesser included offense dichotomy (MCL 750.227b; MSA 28.424[2]).
    5. Criminal Law — Constitutional Law — Felony-Firearm—Double Jeopardy.
    A defendant who is found to have committed a felony and then found to have carried or had in his possession a firearm during the commission of that felony is not thereby subjected to double jeopardy, to double sentence, or to double punishment (MCL 750.227b; MSA 28.424[2]).
    6. Criminal Law — Statutes—Felony-Firearm—Original Charge.
    The felony-firearm statute may be used to augment a defendant’s sentence only if violation of that statute is included as part of the original charge dealing with the underlying felony (MCL 750.227b; MSA 28.424[2]).
    Dissent by N. J. Kaufman, P. J.
    7. Criminal Law — Constitutional Law — Double Jeopardy — Armed Robbery — Felony-Firearm.
    A defendant was twice convicted and punished for the same offense in violation of the constitutional guarantees against double jeopardy where he was charged with armed robbery and violation of the felony-ñrearm statute and where the language of the information reads in such language that it would be impossible to prove one of the charges without the identical facts necessary to prove the other charge,

    8. Criminal Law — Armed Robbery — Felony-Firearm—Accessory Liability — Statutes.

      A person who aids and abets in an armed robbery may be punished as a principal; there is no difference between aiding and abetting an armed robber and aiding and abetting one who carries or has in his possession a fírearm during the commission of a felony; therefore, a defendant may have accessory liability and be found guilty of violating the felony ñrearm statute as an accessory (MCL 750.527b[l], 767.39; MSA 28.424[2][1], 28.979).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

      Bruce R. Saperstein, for defendants on appeal in cases 77-2397 and 77-2398.

      Richard E. Manning and Rose Mary C. Robinson, for defendants on appeal in cases 77-2309 and 77-2389.
    Before: N. J. Kaufman, P. J., and Beasley and P. R. Mahinske, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Beasley, J.

Defendants pled guilty to charges of armed robbery and possession of a firearm in the commission of a felony, in connection with two robberies of two different Detroit bars, on January 9, 1977, and January 24, 1977, respectively. The pleas were the result of a plea bargain under which other charges against defendants were dropped and the prosecutor agreed not to pursue habitual criminal possibilities against them. Each defendant was sentenced for each of the two robberies, first to a two-year mandatory term for the felony-firearm violation and not less than 25 nor more than 75 years in prison for armed robbery, the latter term to commence following the completion of the former. It was understood that the two sentences for each defendant would run concurrently. Defendants appeal as of right.

First, defendants contend that the trial judge elicited no response from them as to their waiver of constitutional rights and, therefore, the plea-taking was procedurally defective. A review of the transcript in the instant case convinces us that defendants’ claim of error is not supported by the facts. The trial judge explained to each defendant his various rights. He asked each defendant if he understood his rights and if he wished to plead guilty to the two counts. Each defendant said that he understood all of the rights explained by the trial judge and wished to plead guilty to the two counts. We decline to hold that there was error in this procedure.

Defendants next claim that the trial judge failed to establish a sufficient factual basis for their guilty pleas on the felony-firearm counts. The plea-taking transcript indicates Edgar Johnson had possession of and used a handgun in perpetration of both armed robberies. The claim that there was not sufficient factual basis for acceptance of the guilty plea, with respect to Edgar Johnson, is without merit.

The plea transcript indicates Walter Johnson aided and abetted the robberies and knew that his accomplice, Edgar Johnson, was armed. There is no indication that Walter carried, or had in his possession, a firearm at the time of the robberies. We interpret the felony-firearm statute to require that a defendant personally carry or have in his possession a firearm in order to be guilty thereunder. Being an aider and abetter in an armed robbery is not enough to subject a defendant to the enhanced sentence of the felony-firearm statute.

Therefore, we set aside the convictions and sentences imposed on Walter Johnson for felony-firearm, but affirm his convictions and sentences for armed robbery.

It is also contended by defendants that the felony-firearm statute violates the state constitutional prohibition against revising, altering or amending other statutes by implication.

The article of the constitution which defendants here claim is violated by the felony-firearm statute is Const 1963, art 4, § 25, which provides:

"No law shall be revised, altered or amended by reference to its title only. The section or sections of the act altered or amended shall be reenacted and published at length.”

The rationale behind this prohibition was reviewed by the Supreme Court in Advisory Opinion re Constitutionality of 1972 PA 294, which was rendered in response to a request by the Governor and the Senate for an advisory opinion as to the constitutionality of 1972 PA 294. In its opinion, the Supreme Court cited with approval Justice Cooley’s language in People v Mahaney, 13 Mich 481 (1865), as follows:

"An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent.”

Thus, the Court made clear that the constitution does not prohibit all amendment by implication. If an act is complete within itself, it is not within the mischief the provision was designed to remedy.

An examination of the statute under attack in the instant case indicates that it is an act complete within itself. It requires reference to no other statute for its meaning, nor does it alter or amend another statute by reference to its title. Therefore, we decline to hold that the felony-firearm statute falls within the prohibitions of Const 1963, art 4, §25.

Finally, defendants contend that their convictions and consecutive sentences for armed robbery and felony-firearm arising from a single robbery violate constitutional prohibitions against double jeopardy.

The so-called felony-firearm statute, enacted in 1976, effective January 1, 1977, provides as follows:

"Sec. 227b. (1) A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.
"(2) The term of imprisonment prescribed by this section shall be in addition to the sentence imposed for the conviction of the felony or the attempt to commit the felony, and shall be served consecutively with and preceding any term of imprisonment imposed for the conviction of the felony or attempt to commit the felony. * * * ”

The statute was in answer to the continuing demand that the Legislature do something about the rising crime rate and, particularly, Detroit’s homicide rate which, at the time, was represented by the media to be the highest in the nation. There can be no question as to the Legislature’s intent; it was to require a mandatory, minimum prison sentence in all felonies and attempted felonies (except the two expressly excepted) where a firearm was carried or possessed, in the hope of reducing crime and homicides by handgun in particular. There also is no question that the legislative power encompasses both determining and defining what conduct is deemed criminal and fixing the range of sentences for violations. Thus, defendants’ claim of unconstitutionality does not go to the basic power of the Legislature to change, amend, enhance or otherwise augment sentences for particular crimes, but relates only to whether the Legislature chose an impermissible procedure to carry out an intent plainly within its prerogatives.

Defendants argue that among the guarantees afforded by the double jeopardy clause of the Federal and state constitutions is protection against multiple sentences for the same offense. The language of the Federal and state double jeopardy provisions is as follows:

" * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * * >>
"No person shall be subject for the same offense to be twice put in jeopardy.”

The cases indicate that a single act may give rise to a charge under more than one criminal statute when there is clear legislative intent to do so. But where one of the two offenses charged is a necessarily lesser included offense of the other, under case law definitions adopted by the Supreme Court, recent Michigan cases involving drug violations appear to hold that convictions for both based on the same act are precluded.

But whether the basis for these rulings is the court’s conclusion that the Legislature did not intend to permit two convictions, one for sale of heroin and one for possession of heroin, or, whether it is a new state interpretation of constitutional double jeopardy in which the judiciary interprets the words "same offense”, as used in the double jeopardy clause of the Michigan constitution, as not requiring any consideration for the Legislature’s intent in enacting a particular criminal statute, is far from settled.

We say "new interpretation” because we are unable to reconcile Martin and Stewart wholly with the leading Federal decisions interpreting the double jeopardy provision of the constitution. In Blockburger v United States, defendant was found guilty by a jury of three counts of a five-count indictment alleging violations of the Federal Narcotics Act. Two counts involved sales on succeeding days of morphine hydrochloride not in the original stamped package, and the third involved one of the same sales but not in pursuance of a written order. Defendant was sentenced to three similar five-year terms to run consecutively. In affirming, the Supreme Court said Congress intended to make each sale a separate and distinct offense and to authorize sentence separately for each violation. The Court said "that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not”. 284 US at 304.

In Gore v United States, a jury found defendant guilty of all six counts of a six-count indictment. Counts one, two and three involved a sale of heroin on February 26, 1955, and counts four, five and six involved sale of cocaine on February 28, 1955. Counts one and four charged sales not pursuant to a written order, counts two and five involved sale and distribution not in the original stamped package, and counts three and six charged facilitating concealment and sale with knowledge that the drugs had been unlawfully imported in violation of the statute. Defendant was sentenced to six identical terms of one to five years with the sentences on counts one, two and three to run consecutively and the sentences on counts four, five and six to be consecutive hut concurrent with those for counts one, two and three. In one sense, defendant’s accumulated sentence was three to 15 years.

In a scholarly and historically accurate opinion affirming, Justice Frankfurter spells out, in persuasive terms, what double jeopardy is and what it is not. Among other things, he says:

"Finally, we have pressed upon us that the Blockburger doctrine offends the constitutional prohibition against double jeopardy. If there is anything to this claim it surely has long been disregarded in decisions of this Court, participated in by judges especially sensitive to the application of the historic safeguard of double jeopardy. In applying a provision like that of double jeopardy, which is rooted in history and is not an evolving concept like that of due process, a long course of adjudication in this Court carries impressive authority. Certainly if punishment for each of separate offenses as those for which the petitioner here has been sentenced, and not merely different descriptions of the same offense, is constitutionally beyond the power of Congress to impose, not only Blockburger but at least the following cases would also have to be overruled.”

There then follow some seven decisions of the United States Supreme Court.

Also, in Gore, supra, Chief Justice Warren, although dissenting, makes it plain that in these situations appellate review for possible violation of double jeopardy means looking to the legislative intention, in the following language:

"The problem of multiple punishment is a vexing and recurring one. It arises in one of two broad contexts: (a) a statute or a portion thereof proscribes designated conduct, and the question is whether the defendant’s conduct constitutes more than one violation of this proscription. Thus, murdering two people simultaneously might well warrant two punishments but stealing two one-dollar bills might not. (b) Two statutes or two portions of a single statute proscribe certain conduct, and the question is whether the defendant can be punished twice because his conduct violates both proscriptions. Thus, selling liquor on a Sunday might warrant two punishments for violating a prohibition law and a blue law, but feloniously entering a bank and robbing a bank, though violative of two statutes, might warrant but a single punishment.
”In every instance the problem is to ascertain what the legislature intended. Often the inquiry produces few if any enlightening results. Normally these are not problems that receive explicit legislative consideration. But this fact should not lead the judiciary, charged with the obligation of construing these statutes, to settle such questions by the easy application of stereotyped formulae. It is at the same time too easy and too arbitrary to apply a presumption, for or against multipie punishment in all cases or even to do so one way in one class of cases and the other way in another. Placing a case in the category of unit-of-offense problems or the category of overlapping-statute problems may point up the issue, but it does not resolve it.” (Emphasis added.)

More recently, in Brown v Ohio, Justice Powell said:

"The principal question in this case is whether auto theft and joyriding, a greater and lesser included offense under Ohio law, constitute the "same offense” under the Double Jeopardy Clause.
"Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, see United States v Wilson, * * * the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.
"The Double Jeopardy Clause 'protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ ” (Emphasis added; footnotes omitted.)

These cases represent the law regarding the double jeopardy clause as embodied in the Fifth Amendment of the United States Constitution. In Benton v Maryland, the Federal double jeopardy clause was applied to the states. This means that a state court can give no less protection to a defendant in a criminal case than is afforded by the double jeopardy clause of the Federal Fifth Amendment. Perhaps a state court, in interpreting a state constitution or in giving effect to a state statute, can give greater protection than that afforded under the Federal bill of rights, but we would believe that in interpreting the United States Constitution, the Michigan Supreme Court is bound by what the United States Supreme Court says it means.

In People v Martin, supra, the Michigan Supreme Court cites a 1972 Maine case with approval where that court said:

" 'It is elementary that the State cannot divide a single offense into several parts according to time and conduct and base separate prosecutions upon and impose separate punishments for the various necessary divisions of that single crime. * * *
" 'The possession of narcotic drugs is an offense distinct from the sale thereof. But in the instant case the possession and sale clearly constituted one single and same act. The possession, as legally defined, is necessarily a constitutent part of the sale, as legally defined. Where the only possession of the narcotic drug is that incident to and necessary for the sale thereof, and it does not appear that there was possession before or after and apart from such sale, the State cannot fragment the accused’s involvement into separate and distinct acts or transactions to obtain multiple convictions, and separate convictions under such circumstances will not stand. * * * The error is not cured by the fact the trial Court permitted the two sentences to run concurrently. * * * The conviction and sentence upon the' charge of possession must be set aside.’ State v Allen, 292 A2d 167, 172 (Me, 1972).”

The Maine decision seems to be contrary to the established line of Federal decisions, three of which are here cited, which leaves to the legislature whether to separate sale of heroin from possession of heroin, whether to make sale and possession separate offenses, and whether to provide separate sentences for each. We would believe that the Federal cases afford a sounder, more authoritative construction of constitutional double jeopardy and are entitled to greater weight than that of the Maine case.

We incline to believe that the basis for the decisions in Martin and Stewart is the Supreme Court’s belief that in enacting the Controlled Substances Act of 1971, the Legislature did not intend separate sentences and separate punishments for sale of heroin and for possession of heroin where the same heroin was possessed and sold in a single, continuous transaction.

Therefore, we decline to find that a new, expanded concept of double jeopardy prevails in Michigan. Every new liberal construction or expanded interpretation of double jeopardy does not represent progress. In the long haul, balance in the trial process between defense and prosecution gives greater promise of achieving a true result than tilting the scale to the defense for the exigencies of the moment. We would do well to heed Justice Frankfurter’s advice and to refrain from permitting double jeopardy to become an evolving concept.

No reasonable argument can be made against the conclusion that the Legislature intended an additional, mandatory prison sentence where a firearm was carried or possessed in commission of a felony. The language of § 227b(2) is plain and unambiguous. The Legislature intends an additional specified penalty where a firearm is carried or possessed at the time of committing or attempting to commit a felony. Neither the trial judge nor the prosecutor has any discretion or choice if the proofs show the presence of the firearm. A mandatory, additional sentence as specified in the statute must be imposed.

We interpret felony-firearm to be a sentence-increasing or sentence-augmenting statute. As such, it is not within or subject to the greater offense — lesser included offense dichotomy. We would anticipate that the trial judges would instruct a jury to only give consideration to felony-firearm, i.e., whether a defendant carried or had in his possession a firearm as defined in § 227b if and after the underlying felony or attempted felony was found to have been committed. The jury (or judge hearing a case nonjury), would then have for decision whether or not defendant had violated § 227b; and this would be in the nature of a special question. We do not believe this procedure involves double jeopardy, or double sentence, or double punishment.

While it is unnecessary to decide the same here, we also, however, would assume that § 227b may only be applied to enhance or augment a sentence if included as part of the original charge. In short, we would prohibit a court or prosecutor from entertaining a charge under § 227b in a separate trial either before or after trial for the main offense. Only where § 227b was charged and tried at the same time could it come under consideration by the fact finder.

In so ruling, we are aware that a difficult and close issue is present here. That is indicated by the fact that there is a substantial split of opinion among panels of this Court on this issue. We also rule without benefit of decision by the Supreme Court respecting this issue.

Under these circumstances, we are particularly sensitive to our obligation to give due deference to these statutes enacted by a co-equal branch of government. If we can interpret a statute so as to uphold its constitutionality, we should do so. This is particularly true where the legislative intention is so unmistakably clear as here. At the same time, we have accorded defendants full judicial review of this constitutional issue and conclude the double jeopardy clauses are not violated.

Affirmed with respect to defendant, Edgar Johnson; reversed with respect to defendant, Walter Johnson, as to the felony-firearm conviction, but affirmed with respect to both defendants as to the armed robbery convictions.

P. R. Mahinske, J., concurred.

N. J. Kaufman, P. J.

(dissenting). I respectfully dissent for the reasons stated in my dissenting opinions in People v Mitchell, 85 Mich App 757; 272 NW2d 601 (1978), and People v Drake Johnson, 85 Mich App 752; 272 NW2d 599 (1978).

The pertinent portion of the information filed in the present cases reads as follows:

’’COUNT I
"did assault the above-named Complainant while armed with a dangerous weapon or an article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, to-wit: a handgun and did then and there feloniously rob, steal and take from the person of said Complainant, or in his presence, United States Currency, contrary to Sec. 750.529, M.C.L.A.
’’COUNT II
"did then and there carry or have possession of a firearm, to-wit: a handgun in the commission or attempt to commit a felony to-wit: Robbery Armed, Contrary to M.C.L.A. 750.227b.” (Emphasis added.)

My reading of the above language shows that it would be impossible to prove one charge without the identical facts necessary to prove the other charge, nothing more, nothing less. Defendants were thus twice convicted and punished for the same offense, in violation of the double jeopardy provisions of the Federal and state constitutions. I would vacate the convictions on the "felony-firearm” counts and affirm those stemming from the armed robbery counts.

If I perceived the law regarding double jeopardy to be as the majority states it, I still could not agree with their disposition of the aiding and abetting issue. The majority reverses Walter Johnson’s "felony-firearm” conviction because Walter Johnson himself did not carry or possess the handgun used in the armed robbery. Insofar as accessory liability is concerned, I see no difference between aiding and abetting one who "carries or has in his possession” a firearm ("felony-firearm”, MCL 750.527b(l); MSA 28.424(2X1)), and aiding and abetting one who robs another "being armed” with a firearm (armed robbery, MCL 750.529; MSA 28.797). Clearly, a person who aids and abets in an armed robbery may be punished as a principal. See, e.g., People v Turner, 59 Mich App 589; 229 NW2d 861 (1975), People v Sharp, 57 Mich App 624; 226 NW2d 590 (1975). I would not reverse Walter Johnson’s conviction on the ground that it was his accomplice who carried the handgun, but would reverse both defendants’ "felony-firearm” convictions on the basis of double jeopardy as stated above.

       MCL 750.529; MSA 28.797.

       MCL 750.227b; MSA 28.424(2).

        Id.

       389 Mich 441; 208 NW2d 469 (1973).

       13 Mich at 497; 389 Mich at 472-473.

       MCL 750.227b; MSA 28.424(2).

        Id.

        Brown v Ohio, 432 US 161; 97 S Ct 2221; 53 L Ed 2d 187 (1977). See, Gore v United States, 357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958), where the Court gave great weight to legislative intent and discussed the prospect of the court’s entry into the domain of the Legislature thus:
      "In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, * ** * these are peculiarly questions of legislative policy.” (Citations omitted.) 357 US at 393.

        See also, 65 Yale L J 339, 363-364 (1956):
      "The primary substantive problem is one of legislative intent, not legislative power, for the legislature can award as many different penalties as it deems desirable for a given act or transaction, or any aspect of an act or transaction, as long as the statute accords substantive due process of law and avoids the eighth amendment’s prohibition of cruel and unusual punishments. This authority is inherent in the power to make conduct criminal and to penalize it, and is not limited in any meaningful sense by the concept of double jeopardy. For example, since the legislature can make armed robbery a crime punishable by twenty years’ imprisonment, it can also pass one statute prescribing ten years’ imprisonment for robbery, and another prescribing ten years’ imprisonment for carrying a revolver in the course of committing a robbery. Cumulative imposition of sentences on a two-count indictment alleging both the committing of a robbery, and the carrying of a revolver in the course of that robbery, is, therefore, not double punishment for the same offense.
      "Legislative intent is plain where two statutes are designed to implement different social policies. For example, one statute may fix a fine of $50 for the sale of liquor on a Sunday, and a second prescribe a fine of $50 for the sale of liquor to a minor. If a dealer sells liquor to a minor on a Sunday, a court that awards two $50 fines for the single act has not imposed double punishment. Nor is there a serious problem of substantive law in the converse of this situation, where offenses are clearly alternative.”

        North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969); Ex parte Lange, 85 US (18 Wall) 163; 21 L Ed 872 (1874). The penal codes of two states (California and New York) have express statutory provisions against double punishment. Other jurisdictions which have constitutional prohibitions only against double jeopardy, nevertheless, treat imposition of double punishment as double jeopardy. Since Ex parte Lange, the Supreme Court has not held squarely that multiple punishment for a single offense, in addition to being an erroneous interpretation of the statute making the offense punishable, also violates the double jeopardy clause. 65 Yale L J 339, n. 4 (1956).

       US Const, Am V.

       Const 1963, art 1, § 15.

       75 Yale L J 262 (1965). Also see, Jeffers v United States, 432 US 137; 97 S Ct 2207; 53 L Ed 2d 168 (1977), reh den, 434 US 880; 98 S Ct 241; 54 L Ed 2d 164 (1977). That the intent of the Legislature is controlling was affirmed by the Court, which stated:
      "The critical inquiry is whether Congress intended to punish each statutory violation separately. * * * In Iannelli v United States [420 US 770; 95 S Ct 1284; 43 L Ed 2d 616 (1975)], the Court concluded that Congress did intend to punish violations of § 1955 separately from § 371 conspiracy violations. Since the two offenses were different, there was no need to go further. * * * If some possibility exists that the two statutory offenses are the 'same offense’ for double jeopardy purposes, however, it is necessary to examine the problem closely, in order to avoid constitutional multiple punishment difficulties.” Id. at 155; 97 S Ct at 2218; 53 L Ed 2d at 183 (citations omitted).
      Where the legislative intent is ambiguous, then certain rules of construction become applicable to determine whether separately defined crimes constitute the same offense for double jeopardy purposes. However, it is unnecessary to apply such rules or tests where the legislative intent is clear and unambiguous.
      It cannot be contended that an individual needs constitutional double jeopardy protection against the Legislature’s clear exercise of its proper penological function. The constitutional prohibition against cruel and unusual punishment, US Const, Am VIII, and the due process protections, US Const, Am V and XIV, and state constitutional counterparts provide adequate restraints on the Legislature’s exercise of its power to define offenses and prescribe punishments.

        People v Martin, 398 Mich 303; 247 NW2d 303 (1976); People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977). See also, 65 Yale LJ 339, 347, n. 43 (1956):
      "The lesser included offense doctrine, an exception to the same evidence test, provides that when a defendant has been placed in jeopardy of conviction of one offense, he cannot be prosecuted for another which is a lesser element of the first. * * * Sometimes prosecution for the lesser offense will bar trial for the greater. * * * It will readily be seen that the lesser included offense doctrine is often merely the same evidence test in different words. Thus if defendant is indicted for murder, and the jury on the first trial can return a verdict of manslaughter, an acquittal on the first trial acquits him of both murder and manslaughter. A second trial for manslaughter would require the same evidence that would have been necessary to sustain a conviction for that 'lesser included offense’ on the first trial. It has been suggested that a better reason for barring second prosecutions, whether the first trial is for the lesser or the greater offense, is that the offenses are mutually exclusive or alternative: a defendant has committed either murder or manslaughter, never both.”

        People v Martin, supra; People v Stewart, supra.

       398 Mich 303; 247 NW2d 303 (1976), and 400 Mich 540; 256 NW2d 31 (1977).

       284 US 299; 52 S Ct 180; 76 L Ed 306 (1932).

       357 US 386; 78 S Ct 1280; 2 L Ed 2d 1405 (1958).

       357 US at 392.

       357 US at 393-394.

       432 US 161, 164-165; 97 S Ct 2221; 53 L Ed 2d 187 (1977).

       US Const, Am V.

       395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969).

       398 Mich 303, 307-308; 247 NW2d 303 (1976).

       Similarly, the reasoning, balance and historical soundness of the Federal decisions outweighs the other state decisions cited in People v Martin, supra.

       MCL 335.301-335.367; MSA 18.1070(11-18.1070(67).

       357 US at 392.

       MCL 767.39; MSA 28.979.