*1 STATE оf South Respondent, Casey JOHNSON, Glendon Defendant Appellant. Blackburn, Yankton, John P. for plaintiff respondent. South Dakota. Porter, Bierle Doyle Doyle, James E. & Argued April 18, 1978.
Yankton, appellant. for defendant and BRAITHWAITE, Judge, Circuit 8, 1978. Rehearing Sept. Denied This case stems from an intersection acci- Hill, July on Mission dent The trial court instructed negligence
negligence, contributory
comparative nеgligence. jury returned plaintiff. verdict for the We affirm. acknowledges
Defendant there was evi- jury to sustain a that he was
dence
negligent negligence proxi- and such was a cause of the collision. His
mate appeal
on is that the viewed in a plaintiff, favorable shows that guilty contributory negli-
plaintiff negligence was
gence; proxi- that such collision; cause of the and that it was
mate slight than as a matter of law.
more argues plaintiff wrong side of the road the time
impact. There considerable evidence argument. there
support his But is also Much of defend- argument oral
ant’s briefs and devoted highlighting unbelievability of some testimony. That is not function. presents question. record a classic a jury is evidence from which There III, Delaney, William A. Butte County We its party. decided for either leave have Atty., State’s Belle plaintiff Beadles, Bogh undisturbed. and respondent; Janklow, William J. Atty. 23, 107 N.W.2d Ricketts S.D. Gen., Pierre, on the brief. Tusa, N.W.2d Ralph Hoggatt, Deadwood, for defend- is affirmed. ant and All the Justices MORGAN, Justice.
BRAITHWAITE, Judge, sitting is an appeal Circuit from a conviction MORGAN, disqualified. distributing substance, drug controlled *2 Dump, Officer which he oil, time informed in violation of SDCL 39-17-18.
hash
Dump
appellant
approxi-
Officer
that
had
primarily
Appellant
matеly
of hash
and
entrapment as
seven hits
oil
would
a
have found
discussion,
willing to sell. After a short
law,
the action.
and dismissed
matter
went
into
informant
back
the house where
other er-
asserts numerous
Appellant also
appellant that
information,
he told the
his friend would
insufficient
as an
rors such
oil
pay one dollar for each hash
ball.
information,
to the
untimely аmendment
togo
to
allowing
instruction
and not
three
point,
people
At this
went out-
have the
associate
jury which would
Dump
side.
introduced
and
Officer
himself
part
the informant
aрpellant
asked if
would sell.
then
to
at “a dollar a hit” and
agreed
sell
conviction.
foil
to
handed the
balls
informant who con-
open
tinued to
them his
hand. On
September 17,
days before
About two
request,
appellant gave
a
informant
(informant), an
friend
purported
a
to
plastic bag
carry
foil
County,
Butte
undercover
left,
they
a
whereupon
went to
sеcluded
identity
occupation
and
whose true
plas-
area outside town and turned over the
appellant, stopped at the
unknown to
bag
Agent
tic
the foil balls inside to
wifе, inquir-
and his
appellant
home
Mullen.
ing
the Johnsons would like
as to whether
Appellant and
to
some “hash oil.”
smoke
informant was
called
the state
that this was not unusual
his wife testified
testimоny,
refute
defense
always leaving dif-
was
since
informant
although
name had been endorsed on
things
had
pills and other
ferent
and he
available.
information
was
testimony
he
destroy when
left.
rebuttal,
state’s
consist-
undisput-
was
undisputed. There
also
was
Dump
ed of the
of Officer
who
informant and the
testimony that
appellant
him
a
stated that
had told
frequently, and that in-
socialized
Johnsons
through concerning
small
had fallen
deal
money gifts and
given
had
them
appellant
selling
the hash oil and
money at different times.
them
also loaned
had
oil that he
left that he had
smoked.
Dump
appel-
Officer
testified further that
Dump,
E.
a narcotics
September
F.
On
how
demonstrated
to smoke hash oil.
Depart-
Rapid City Police
for the
officer
juvenile
sixteen-year-old
A
Wray,
Rapid City
a
Police
Diane
also
previously bought
testified
a
Mullen,
Officer,
Butte
and Richard
“couple
joints”
He fur-
agent, went
to Belle
County narсotics
appellant
approached
ther testified that
had
Dakota, to
meet
up
story
him make
a
trial and
conferring,
After
Officer
informant.
lie,
that he had consentеd to
but had
informant went to
Dump
changed his mind later.
purpose
purchasing
lant’s home for
drugs.
Appellant alleges that
erred
in not
arrival,
the informant went
Upon
not granting
defendant’s motion
appellant let him in. Imme-
front door and
agree.
for dismissal. We
entering,
wanted to
diately
still
the hash oil balls
if
had
area,
know
In the
two theories
before,
had left two
that informant
have evolved from
landmark case of
in the car who
informant had friend
since
Sorrells United
yes,
get high. Appellant
Briefly,
wanted to
L.Ed. 413.
these
give
them to
objec-
but at the time refused
two theories are the
since he
Informant stated that
usually goes
informant.
tests.
broke,
informant’s
the intent of the crime
originated,
to where
knew
e.,
money for the
give
them some
i.
either
the defendant or
friend
talk
usually
went outside to
and thus
hash oil. Informant
Nelsen, 1975,S.D.,
two of thе infor- erred in for motion undisputed mant. The a directed verdict at the close of all of the not, ny state 1. Since the could have the infor- did inference must be drawn appellаnt’s mant to stand to rebut testimo- that he did so. 616 type be familiar activity the reason that volved in the distribution of controlled sub- favorable to viewed S.D., Parker, of law stances. See Stаte showed Accordingly, keeping N.W.2d 679. entrapped into commis- principles forth in our set decisions and charged. of the offense sion Russell, 423, States v. United subjec- we do not holding, In so Hampton S.Ct. L.Ed.2d intent, test, which looks at States, United 425 U.S. test, which examines adopt 48 L.Ed.2d I would hold that conduct, solely submitting court did err in reprehensibility of the ac- not on rests the determina- police,
tions police, whether actions of the tion that the to state I am authorized that Justice not, constituted *4 joins in this dissent. PORTER lacking substantial ment may have been which it from evidenсe
ferred issue
Our decision case, we need
having disposed issues raised the de- the other
examine judgment of con- fendant. CROWLEY, Michael trial court with remand viction and Appellant, acquit- to enter instructions tal. STATE ZASTROW, J.,
DUNN, Respondent. JJ., PORTER, dissent.
WOLLMAN WOLLMAN, (dissenting). Justice opinion agree majority I Argued May test оf I would hold that there trapment, but
sufficient reasonably have concluded ap- mind of the true the offense was It
pellant. through the acts of
brought to fruition aspect covered adequately
ment defense In addition to trial instruction. court’s majority summarized
the evidence concerning appellant’s predisposi-
opinion crime, the record reveals
tion to commit telling that he keep the hash oil
preferred to informant how much asked the Moreover, appellant ad- be worth. marijuana he had smoked
mitted that grown marijuana and that
past accepted residence.
plants and seemed for the substance
payment