(concurring in result; dissenting in part). I concur in the majority’s affirmance of defendant’s conviction of the crime of abortion. I also concur in the majority holding that there still remains a sufficient state interest to justify the existence of a criminal abortion statute as it applies to non-physicians.
However, I cannot agree that there was any need or compelling reason in this case for reaching the constitutional question to which the majority has gratuitously held that the language of the. abortion statute results in an unconstitutional shifting of the burden of proof.
An appellate court will not decide constitutional questions unless such determination is necessary for adjudication and essential to the complete disposition of the case under consideration. Stanek v Secretary of State, 33 Mich App 527 (1971); Warren Twp v Raymond, 291 Mich 426 (1939).
In the case at bar, no such determination is necessary. The statute provides’ that abortion shall be a felony "unless the same shall have been necessary to preserve the life of such woman”. It further provides that "In any prosecution undér this section, it shall not be necessary for the prosecution to prove that no such necessity existed”.
I cannot believe that it was the legislative intent to permit a person not licensed to practice medicine and surgery to justify an illegal abortion by resort to a defense of necessity. It appears clear that the defense of necessity is available only to physicians and that under no circumstances is such defense available to a layman. A failure by the prosecution to prove lack of necessity would have availed defendant nothing in this case. Furthermore, the affirmative proof by the layman *358defendant that the abortion was necessary to save the life of the pregnant woman could not have barred conviction.
Therefore, any question as to the shifting of the burden of proof of necessity is of no consequence in this case.
The majority’s reliance on United States v Vuitch, 402 US 62; 91 S Ct 1294; 28 L Ed 2d 601 (1971), is misplaced inasmuch as defendant in that case was a licensed physician.
The foregoing being evident, I am convinced that the majority’s holding of unconstitutionality is unnecessary, unwarranted, and erroneous. This being true, their holding that MCLA 750.14 unconstitutionally shifts the burden of proof constitutes nothing more than obiter dictum.
Furthermore, it appears, at least superficially, that necessity is a defense to a charge of abortion which must, in any event, be proven by the defense rather than an element of the crime, the lack of which must be shown by the prosecution. The language in question is merely clarifying. If such is true, there is no shifting of the burden of proof and therefore no unconstitutionality.
However, resolution of this question is better preserved for a more propitious time. As was stated by my Brother Danhof, one of the majority herein, in his recent dissenting opinion in People v East Lansing Judge, 42 Mich App 32 (1972):
"My decision herein should not be mistaken as an endorsement of the obiter dictum expounded by the majority. If and when the proper case comes before this writer, I shall set forth my views on the powers and duties of the district court regarding preliminary examinations.”
Obviously, the holding of unconstitutionality by the majority in this case is obiter dictum and has no precedential value.