ORDER
Entered May 8, 1975. — REPORTER.
On order of the Court, the application by defendant-appellant for leave to appeal is considered, and the same is granted. This Court, sua sponte, under GCR 1963, 865.1(7) peremptorily reverses the defendant's conviction and remands for a new trial because the trial court erred in refusing a requested instruction on the lesser offense of possession.
While the defendant admitted that he "delivered" (MCLA 335.341; MSA 18.1070[41]) a tinfoil package, he denied that such action was culpable. The jury could have disbelieved defendant's statement as to how he came into possession of the package, found his possession thereof to be culpable, and yet could have concluded that his delivery of the package was non-culpable. If the jury so concluded, "the record contains evidence which would support a conviction", People v Fountain, 392 Mich. 395, 401; 221 N.W.2d 375 (1974), of the lesser offense of possession.
M.S. COLEMAN, J., dissenting.
SWAINSON, J., not participating.