*1 486 to a vendor to remedy a cumulative exclusive but rather
not an of SDCL 44-6-1. Sorum to exist virtue a lien enforce .declared 313, was not Sorenson, 1922, N.W. 423. Plaintiff S.D. 187 45 v. did not do theory quite properly required proceed land. v. so, 21-50-7, Sweet recovery but sought Purinton, 1918, 17, 161. The claim of the 166 N.W. 40 S.D. breach, is, a substantial that there had been essentially, plaintiff SDCL- defendant rescission. authorizing of contract 96, N.W.2d Reese, 1963, 119 53-11-2; 80 S.D. 21-12-1, v. Dusek 21-50-1 would under SDCL have proceeded 656. For plaintiff and effect in full force her to treat the contract have required v. Long, Hickman her the claimed forfeiture. deny and thus 639, 1914, N.W. 34 S.D. 150 298.
Defendant,
hand,
solely
premise
relied
on the other
and did not seek
executed
fully
the contract had been
v.
Hofer,
under SDCL 21-9. Ford
performance
specific
the trial court on
Laurence for defendant and Rapid City, appel- J. lant. Gen., Mettler, Janklow, William Earl Asst. Atty. Atty. J.
Gen., Pierre, for and plaintiff respondent. WINANS, Justice. Dakota, South was
Dennis B. of rural Murphy Spearfish, 20, 1973, a November City convicted on jury Rapid distributing a in violation of (marihuana) controlled substance 10, 1974, about 1973. On July January 39-17-88 on or he Dakota State years was sentenced to two the South a Penitentiary. appeals variety From this conviction He grounds. error charges
1) statute under which he was convicted was not constitu- reenacted;
tionally the trial refused for a 2) judge court-appointed expert his motion
witness; 3) trial court denied his motion for a directed verdict be-
cause of evidence and refused declare insufficient to a mis- trial after a courtroom disruption; instructions; the trial court 4) gave several improper the trial allowed the to too 5) key rely court state’s witness a written her
heavily refreshing memory memorandum her it allowed on certain admissions where the testify identified; was not speaker clearly finally 6) trial court allowed the of a to be chemist con-
sidered by over several of defense counsel. objections Upon consideration of each of Defendant’s of error assignments we find that the court erred of Dr. allowing Gaines concerning results of thin layer chromatogram without standard he properly used. Neverthe- authenticating less, in all of the viewing State’s evidence we find that this error was not and we affirm prejudicial Appellant’s conviction. Church, Clark,
Naomi Cathy Ruth a/k/a the employ State, hired as a paid Pennington County, narcotics informant. She first met the Defendant in in late Spearfish, 1972. 30, 1973, On Treick, a July Defendant and Paul party action, visited Church at her At City that time Rapid apartment. a Treick On the arranged following marihuana sale. day both, Treick and returned Murphy to Church’s Treick apartment, carrying paper brown sack twelve containing baggies of marihuana. Church examined bag’s contents and Treick gave $50 for them. That afternoon Church turned the over bag Deputy Gaines, Richard Davis who transferred it to Dr. Jack Church, chemist at the School Mines and Technology. Davis and Gaines were the State’s three witnesses at the trial of Murphy *4 the time following November. At that Treick had not yet been to trial. brought
Defendant charges that the statute under which he was convicted was declared Matteson, 1973, invalid in State v. 87 216, S.D. 512, 205 N.W.2d and that it had not been re validly enacted at the time of the sale marihuana in question. Inasmuch as we have with Barr, dealt 1975, same issue State v. 89 280, S.D. 257, 232 N.W.2d and have found that the State Drugs Act, Substances Control 39-17-155, SDCL 39-17-44 through was validly reeenacted when part made of our Code 1972 and is not invalidated by. contends, 2-16-15 Defendant there is little merit in further of discussion the issue.
490 the trial court in error argues next that
Murphy testify for witness to refusing court-appointed expert his motion a His baggies. found in the twelve of marihuana on the species are three separate that there reason the motion is primarily for law of and our state prohibits marihuana species and distinct If an were to one, Sativa L. expert only distribution of cannabis to and were also theory three species evidence supporting give of a was marihuana species Murphy’s find that statutes, would argue in the Murphy specified than that State had no case. certain circumstances that under question
There is no are to more are sufficient funds entitled who without defendants on their case. put in order to counsel court-appointed legal than where arise “issues authority the court gives SDCL 19-6-1 is to evidence desirable” expert which the court deems upon issue, on each more three experts, exceeding one or “appoint Geelan, 135, 80 S.D. testify to at the trial.” This court State 533, 138, 535, does not provision has held that “This N.W.2d an witness. of right appointment expert create an absolute to of witness in a proper It such merely permits appointment is made is committed to case. Whether the appointment with the This Court is in sympathy discretion of the court.” Criminal where American Bar Association’s Standard for Justice each local they subdivision formulate provide appropriate necessary and other services expert include plan “investigatory, Services, an Defense 1.5 Providing defense.” adequate § Services. We also note that Rule 731 of the proposed Supporting makes final of the Rules of Criminal Procedure draft Uniform the State’s witness fees provision expert for reasonable payment 1969, State, This in Utsler v. S.D. for defense. Court 171 N.W.2d that “neither the federal nor state stated mandate that an defendant addition to indigent constitution full public expense counsel is entitled to ‘the paraphernalia defense’, for claimed defense.” preparation [citation omitted] We would not want words ever be so construed narrowly these as to have them a denial justify court-appointed expert This, such witnesses where are essential to defense. adequate however, not the in the case before us. While the situation witnesses would have proposed undoubtedly have availed Defendant been informative would interesting *5 nothing. states: 39-17-44(10)
“ ‘Marihuana’ means all parts any plant genus cannabis, not; thereof; whether or the seeds growing resin extracted any from of such part plant; every manufacture, salt, derivative, mixture, compound, resin; preparation of such plant, its seeds or but shall not include fiber produced from the mature stalks of such plant, or oil or cake made from the seeds of such plant.”
This statutory definition quite similar to the definition of provided 21 U.S.C.A. In 802(15). case, a recent § Walton, 1975, D.C.Cir., United States 514 F.2d Court of for the Appeals District of Columbia Circuit was asked to decide a question similar to the one before us with today regard to the federal Court, statute. Speaking for the Chief Judge Bazelon said:
“* * * many rules of statutory construction place in an courts unco-operative with position regard to legislative intent. protection of statu- significant Judicial tory constitutional interests at times require courts to demand a ‘clear statement’ of intent before deferring a legislative judgment. There always comes a point, however, where the legislative intent is as clear as is humanly possible and at that point the courts must either defer or exercise their constitutional responsibili- ties. While with Congress the wisdom of could hindsight have been more clear in its definition of we marijuana, can discover no significant doubt about Congress’ pur- pose proscribing distribution of marijuana.” That Court held that legislative history is clear absolutely “[t]he that Congress meant to outlaw all plants popularly known as marijuana to the extent those plants THC. possessed Every federal appeals court which has considered the has reached point a similar conclusion.” In spite of the clear federal statutory specification of cannabis Sativa L. alone as Marihuana Chief Judge Bazelon’scourt is of the conviction that the meant Congress to include be, if such species, there as well. Even as Chief *6 federal of in the clarity the lack
Judge Bazelon laments less-than- legislature’s we too our own state legislation, regret so Nevertheless, it is us that our own clear to scientific specificity.* “cannabis' marihuana as denominating that in thought legislature of the inducing capable any L” it was including sativa To intent legislative THC. view the effect euphoric brought reason, reason no or no be to that for say good otherwise would who all, severe on those penalties at our were legislators imposing the ef marihuana because of harmful type trafficked in one of at time to while the same produce permitting fects it is thought induced in of marihuana which types free commerce identical similar results. statutory we hold that our definition today
Since any be broad to include enough marihuana must necessarily community known American of what is the species popularly THC, testimony' any to the that contains as “marihuana” extent witnesses, have may given however expert, which Defendant’s for Defendant’s motion In superfluous. denying would have been court, therefore, in no the trial witnesses expert court-appointed way to It an defense. jeopardized Murphy’s right adequate the merely prevented money needless of the State’s expenditure which would neither have case assisted Defendant’s Wheeler, 1974, nor See detracted from State’s. Cassady Iowa, 224 649. N.W.2d We have entire reviewed the record find evidence n verdict. We
adequate support agreement to also are trial court committed no error Defendant’s motion denying witness, Church, for mistrial when State’s Naomi directed hostile remarks to a presence jury spectator her The apparently sketching picture. judge trial witnessed outburst, concluded that it would be detrimental to Defend case, ant’s continued the trial. There is jury admonished in the record indicate nothing to to us Defendant the witness’ conduct nor has his counsel us prejudiced by given reason believe this The trial was in a appeal. was so on judge and, far better evaluate the situation absent substan- position * 39-17-44(10) legislature The has amended SDCL enactment 1975, defining Laws Ch. “marihuana”. otherwise, have ruled we tial reason to believe that ought cannot that he was say wrong.
We have also reviewed the instructions to the challenged and we find no reversible error them. her the course of
During Naomi Church which she from time to time referred to written record *7 called her Defendant to the use of the “report”. objects report her memory that the witness did more than refresh grounds with its Defendant read the merely use. claims that Church to'the we find claim report jury. impossible From record or substantiate. The she needed the justify witness testified that notes she made after the in in shortly question transaction order to refresh her memory. She had testified as to the already substance of the transaction and to the conversation that it. accompanied She used the notes or and the evidence report receipts to recall the exact words aof conversation and to the time she pinpoint delivered the to the purchase authorities. The lines between memorandum, refreshed present memory by past recollection recorded in a and merely memorandum para phrasing memorandum of a are past event thin indeed. The allowed judge the witness to use her when *8 a a silica coated next to of gel plate sample on placed an extract of the substance be identified. The is plate placed in a vertically solvent and the solvent moves the up plate by capillary action. It out separates various in the compounds extracts the (of identified and unidentified substances) on the plate these compounds move a up plate at certain rate depending on molecular The weight. location of these compounds from the unknown on the sample plate relative to the location of the compounds from the known is sample determinative in the substance identifying examined. being Informative in this is the regard testimony: witness’ BY MR. ZASTROW: Then I
“Q. you understand it
measure the distance these have traveled a spots known—
A. I don’t even measure them. I just horizon- compare
tally the relative position. a Q. Isn’t it normal method of from where measuring to where each of the end? spot began spots if have a re- you This is a do not practice A. normal known, yes. lative alongside standard running called an RF value. You must measure. This is You didn’t determine an RF value? Q.
A. This is necessary, no. your You do not feel test that is neces-
Q. running sary to determine the RF value?
A. This is a much procedure more reliable to use a
known standard and two rather compare those than determine—RF is on environmental dependent factors.”
because thin a layer “side chromatogram is side” test it is of analogous comparison In a handwriting samples. case with dealing Circuit handwriting Tenth Court samples said: Appeals is, thus,
“It manifest handwriting expert’s based, opinion part, upon comparison of signa- tures not to be proved or admitted into evi- genuine dence as such. The court’s ruling admitting Wag- ner’s ‘purported’ signature as a standard comparison clearly indicates court misconceived estab- lished rule authentication in governing cases of this kind. Not been to be having proved genuine, signa- tures the public documents were inadmissible as standards comparison. In these circumstances the stand, foundation for the expert’s cannot opinion with opinion his falls it.” United States Wagner, CA F.2d 121. *9 In similar fashion we are compelled that Dr. say Gaines’ identification of questioned substance as marihuana thin layer was based chromatogram upon standard not sample proved to be genuine admitted into evidence. Since the standard was not authenticated properly his be finding must disallowed. Were only test employed by doctor the However, State’s case would fail. Dr. Gaines also employed substance and concluded that the questioned testing procedures was entitled and the jury weigh was marihuana evidence, and find with him. while totality Viewing relative the thin layer chromato- disregarding well gram, we find that the could have found Defendant guilty as Murphy charged.
We have reviewed the other assignments error made by any and have in them Defendant not found reversible error. Affirmed.
DUNN, DOYLE, C. J., J., concur. COLER,
WOLLMAN and JJ., concur specially. WOLLMAN, (concurring specially). Justice I agree that the conviction should be However, affirmed. I do not agree that the trial court erred in Dr. allowing Gaines to testify about the thin layer chromatogram test. I am not sure from the record that defendant ever specifically called to the court’s attention as a ground for the objection the claim that the alleged known of marihuana sample had never been properly Moreover, authenticated. after Dr. Gaines testified that he had obtained Frasch, the standard of marihuana from Mr. sample “Now, was asked by defense counsel: have you examined that standard to determine in own mind whether it is or is your cannabis plant?,” to which Dr. Gaines “Yes, replied, I have looked at it I microscopically. use it as my standard to compare
to unknowns.” I think that the only fair inference to be drawn from this testimony is that Dr. Gaines had satisfied himself that the standard did sample in fact consist of marijuana.
I would hold that the standard
of marihuana was
sample
authenticated
the trial
sufficiently
being
marihuana to justify
court’s overruling defendant’s general objection of lack of proper
foundation and lack of showing
reliable,
that the tests were
just
as this court held
handwriting
sample
question had
been sufficiently identified in
Ballard,
the case of State v.
S.D.
special concurrence. notes she could not sufficiently recall the details of the transaction with precision. We have no reason to believe that her testimony subsequent her notes examining was not that of a of a present memory past event if, refreshed those notes. Even in some small part, strayed from this traditionally acceptable zone we could say that the trial court was guilty of reversible error in it. admitting Contrary contention, to Defendant’s we also find that Church identified sufficiently Defendant as the in Speaker various conver sations with him which she related on the stand and that her context of there is testimony no ambiguity this regard to Defendant. prejudicial Finally, Defendant raises several objections concerning Gains, qualifications of Dr. testimony the State’s Jack witness. expert It was up to the trial judge to determine whether or not Dr. Gaines Parker, as an State v. qualified witness. expert 494 P.2d 1307. This the Court did and Wash.App. Once the expert’s we find no abuse of discretion that regard. established, any had been not to the qualifications objections go his all else admissibility testimony weight, being but to its equal. nature testify plants Dr. Gaines was free to as to the question process whereby to describe the (marihuana) The liberty arrived at his conclusion. then to evaluate However, his and arrive at its verdict. the trial court was in error in of Dr. Gaines’ allowing portion which thin test. layer related to the chromatogram Dr. Gaines that the testified standard used conducting had never him layer thin been tested chromatogram against stand- He that his belief that the marihuana. stated any known him by a remark made to upon marihuana was founded ard was chemist, Dr. Van Frasch, Bruggen, assistant state Don an botanist, The State no produced had identified it as marihuana. layer the standard as marihuana. This thin identify witness to an extract of a known sample test involves chromatogram