State v. Jahnz, 12189
| Decision Date | 22 February 1978 |
| Docket Number | No. 12189,12189 |
| Citation | 261 N.W.2d 426 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. James B. JAHNZ, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
John P. Guhin, Asst. Atty. Gen., for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.
Dennis C. McFarland, Sioux Falls, for defendant and appellant.
The defendant was convicted of possession of a controlled substance with intent to distribute by a jury from the Second Judicial Circuit. He alleges error based upon: (1) the failure of the prosecutor to endorse the names of two informants as res gestae witnesses on the information, (2) the failure of the state to prove beyond a reasonable doubt that the marijuana was in the defendant's possession, that he knew it was marijuana, and that he had an intent to distribute, and (3) the insufficiency of the evidence to sustain a conviction. We affirm the judgment of the trial court.
On the night of October 19, 1975, Sioux Falls police were told by two informants that a 1968 Mustang with Minnesota license plates was parked in a certain area of Sioux Falls and was filled with marijuana. The police went to the area, located the car and staked it out overnight. As the police watched, a green car drove up to the Mustang and three people got out. Shortly thereafter, a third car, a Volkswagon, arrived, and one man got out. One of the people in the group of three opened the trunk of the Mustang and took out a brown paper bag. The bag was transferred to the man driving the Volkswagon, and he left. The group of three went into a nearby house.
A search warrant was obtained and served on October 20, 1975. The police went to the house that the three had entered and encountered the defendant, his brother and two others. The defendant acknowledged ownership of the Mustang and opened the trunk with keys that he had in his pocket. Inside 133.2 pounds of marijuana was found packaged in brown paper bags.
At trial, the names of the two informants were revealed, but not endorsed on the information. One of them was serving time in the South Dakota State Penitentiary and the other was serving time in the federal penitentiary at Leavenworth, Kansas, at the time of trial. Neither was called as a witness, and the state admits that neither was interviewed about this case subsequent to the giving of the information which led to the stakeout of the car.
The plaintiff first contends that the failure of the prosecutor to endorse the names of the informants as res gestae witnesses on the information was reversible error. He relies on SDCL 23-20-4 and the right of a defendant to confront his accusers. This court is urged by the defendant to adopt the Michigan rule set out in People v. Harrison, 1973, 44 Mich.App. 578, 205 N.W.2d 900, which requires all res gestae witnesses to be endorsed on the information, whether the state intends to call them or not.
We need not decide this issue, since we find that, even if there was error in failing to endorse the witnesses' names, it was harmless and waived by the defendant. Six months before trial, one of the defendant's attorneys indicated to the judge a belief that one of the informants was Danvers Jansen, who was in fact one of the informants. No effort was made by the defendant to interview Jansen, although he was located in the State Penitentiary in Sioux Falls. When the names were revealed at trial, no request for a continuance was made nor was any effort made to contact Jansen, who was still incarcerated a short distance from the courtroom. In light of this, we conclude that, even if error did occur, it was harmless error and has been waived by the defendant.
The defendant contends that the state failed to meet its burden of proof as to defendant's knowledgeable possession, his knowledge that the substance was marijuana, and that he had an intent to distribute.
The evidence shows that 133.2 pounds of marijuana was found in the trunk of defendant's automobile; that it was packaged in brown...
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