(concurring in part, dissenting in part). I concur with my brothers that this cause *423must be reversed and remanded because of noncompliance with GCR 1963, 785.7(3), but I cannot agree with their position, based upon People v Serra, 55 Mich App 514, 223 NW2d 28 (1974), that the trial court would have been in compliance with the court rule if it had inferred the intent to deliver from the large quantity of marihuana possessed.
My quarrel is not with the majority’s reasoning in the case at bar, but rather with this Court’s opinion in Serra. I read Serra to say that a jury may readily infer that a person possessing a large amount of a controlled substance intended to deliver it.1 I do not believe that the Serra Court intended such a reading, nor do I think that such an inference should be allowed. It is my opinion that neither a judge nor a jury may rely on the amount of a controlled substance possessed to determine whether a defendant had the intent to deliver.
It is true that Serra twice recognized that intent to deliver could be permissibly inferred from the quantity involved.2 However, I do not believe that the Serra Court intended this to mean that a defendant could be convicted of the charge of possession with intent to deliver by merely showing that the defendant possessed a large amount of marihuana or any other controlled substance. Such a reading would totally obliterate the beneficial effects of Serra’s holding that the two-ounce presumption rule is unconstitutional.
It is my opinion that in declaring the two-ounce presumption rule unconstitutional, the Serra Court inadvertently, through an unfortunate choice of words, actually strengthened that rule by *424implying that a jury could properly infer that a person possessing a large amount of a controlled substance intended to deliver it. If this be the true meaning of Serra, then we have not denied "the prosecutor the use of this evidentiary crutch”, but rather we have sanctioned its use to an extent even greater than was employed before the Serra opinion was issued.
To say that a jury may not presume intent from the amount of a controlled substance possessed but it may infer such intent is not only illogical and ambiguous, but furthermore assumes that the average jury will be able to make the legal distinction between presumption and inference. Labels alone are not sufficient to make the distinction. Appellate courts, trial courts and advocates have had difficulty over the years when attempting to distinguish a presumption from an inference. If the legal profession has had such difficulty, how can we honestly expect a jury of laymen to be able to do so?
It is my opinion that Serra, as written, is for all intents and purposes, a legal nullity. The opinion simply did not go far enough in its attempt to throw out the harmful effects of the two-ounce presumption rule. By allowing the jury to draw an inference of intent from the mere fact of the amount of a controlled substance possessed, the Serra Court has placed defendant in the same position that he was in before the Serra opinion was released. The only evidence which can effectively rebut the inference is the defendant’s own testimony as to his intent. This was true before Serra and it is still true today. Thus, despite Serra, a defendant is still compelled to take the stand in violation of his right against self-incrimination *425granted by both the United States3 and the Michigan4 Constitutions. I am sure that the members of the Serra Court did not intend such a result. Rather, I believe that the Serra Court intended their decision to encompass what I have mentioned in this opinion. That is, if it is irrational for a jury to presume intent solely from the fact that more than two ounces were possessed, it is equally irrational for a jury or a trial judge to infer the requisite intent from that fact. Attempting to effectively distinguish a presumption from an inference is an exercise in futility, particularly in cases tried before a jury. Neither the presumption nor the inference should be permitted.
I wish to make one more point before closing. The offense with which defendant was charged was possessing a controlled substance with intent to deliver. Intent to deliver is an element of this offense which should be proven by the prosecutor5 just like any other element of any other offense, i.e., by means of evidence. Prosecutions involving controlled substances do not require either a presumption or an inference to convince the trier of fact that the possessor intended something other than personal use. Regardless of the amounts at issue, the prosecution should be required to introduce evidence of the kind the prosecutor in Serra suggested the defendant should be forced to use, namely, expert witnesses and acquaintances of the defendant. The trier of fact will then be free to weigh the evidence on both sides and resolve the question before it without regard to presumptions or inferences of any kind.
*426Because of the shortcomings of the Serra opinion, I would like to see this case pursued to our Supreme Court. However, because of the noncompliance with GCR 1963, 785.7(3), I concur in the result called for in the opinion of the majority.
My reading of Serra is based on excerpts of the opinion found on pages 520 and 525.
People v Serra, supra, pp 520, 525.
US Const, Am V.
Const 1963, art 1, § 17.
In reference to guilty pleas, I think that the better practice in accepting a guilty plea to a specific intent crime is for the trial court to ask the defendant point blank whether he entertained the illicit intent.