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UNITED STATES EX REL. KIRCHNER v. JOHNSTONE

June 22, 1978

UNITED STATES of America ex rel. James KIRCHNER
v.
W. G. JOHNSTONE, Jr., President Judge, Court of Common Pleas of Lancaster County, Pennsylvania, et al. Kenneth Shalom MILLROOD v. Superintendent Lowell D. HEWITT and the Attorney General of the State of Pennsylvania



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 Petitioners James Kirchner and Kenneth Shalom Millrood were tried and convicted in the Court of Common Pleas of Lancaster County, Pennsylvania upon the charge of possession with intent to deliver marijuana and conspiracy in violation of 35 P.S. § 780-113(a)(30). They were sentenced to a period of incarceration and fined. Both have filed petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2254 *fn1" contending that their constitutional rights were violated in that they were convicted of violating 35 P.S. § 780-113(a)(30) even though the Commonwealth did not prove that they were not registered under the Act or registered or licensed by the appropriate State Board. *fn2"

 35 P.S. § 780-113 provides in pertinent part:

 
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
 
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
 
35 P.S. § 780-121 provides:
 
In any prosecution under this act, it shall not be necessary to negate any of the exemptions or exceptions of this act in any complaint, information or trial. The burden of proof of such exemption or exception shall be upon the person claiming it.

 At their trial, no evidence was produced by the Commonwealth to prove that defendants were not registered under the Act or were practitioners not registered or licensed by the appropriate State board. Defendants demurred to the evidence and sought a directed verdict on the ground, among others, that the Commonwealth had not met its burden of proving that they were not so registered. The trial judge denied their motions.

 Petitioners contend that in order to be found guilty of violating 35 P.S. § 780-113(a)(30), proof that they were neither registered nor licensed is an essential element of the crime, and that a defendant constitutionally cannot be required to bear the burden of proving registration and/or licensing. The critical determination for this Court is whether non-registration is an essential element of the crime defined in 35 P.S. § 780-113(a)(30). If it is, the Commonwealth had the burden of establishing non-registration beyond a reasonable doubt, and the petitioners' writs should be granted.

 As the Supreme Court has stated:

 
the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

 In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970); see also, Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 2327, 53 L. Ed. 2d 281 (1977); United States of America ex rel. Hickey v. Jeffes, 571 F.2d 762, 764 (3d Cir. 1978).

 When ruling on a petition for habeas corpus in connection with the application of a state statute, a federal district court takes the statute with the interpretation placed upon it by the courts of that state "as though that interpretation had been written into the statute by the state legislature itself." United States v. Deegan, 294 F. Supp. 1347, 1350 (S.D.N.Y. 1969) (footnote omitted); Schmidt v. Hewitt, 573 F.2d 794 (3d Cir. 1978). As stated by the Supreme Court in Mullaney v. Wilbur, 421 U.S. 684, 691, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), "state courts are the ultimate expositors of state law . . . . and [federal courts] are bound by their constructions except in extreme circumstances . . . ." Hallowell v. Keve, 555 F.2d 103, 107 (3d ...


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