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05/17/76 PEOPLE v. JERRY JOHNSON PEOPLE V. DAWN

May 17, 1976

PEOPLE
v.
JERRY JOHNSON; PEOPLE V. DAWN MARIE JOHNSON



Appeal from Barry, Willard L. Mikesell, J.

Danhof, P. J., and D. E. Holbrook and Allen, JJ.

SYLLABUS BY THE COURT

1. -- Inferences -- Joint Ownership -- Possession of Marijuana -- Intent to Deliver.

It is not a fair inference to assume, from joint ownership of a house trailer, a specific intent to deliver any of the contents of the trailer; therefore, a jury's conviction of a defendant for possession of marijuana with intent to deliver was based upon an unfair inference of intent to deliver where there was absolutely no evidence introduced against the defendant other than possible joint ownership of the house trailer in which marijuana was found.

2. -- Inferences -- Impermissible Inferences -- Possession of Marijuana -- Circumstantial Evidence.

It would be an impermissible inference built upon another inference, both based upon the same circumstantial evidence, to find that joint possession of marijuana is a reasonable inference to be drawn from the joint ownership of a house trailer in which the marijuana is found and that intent to deliver is a reasonable inference to be drawn from the before-inferred possession of marijuana.

3. Witnesses -- -- Res Gestae Witnesses -- Nonproduction of Witnesses -- Cumulative Testimony -- Remand.

A prosecution's nonproduction of a res gestae witness, in the absence of a diligent effort to produce the witness at trial, is reversible error where it does not appear that the witness would have given testimony which was merely cumulative had he been produced by the prosecution; therefore, the Court of Appeals should remand for a hearing to determine whether or not the witness's testimony would have been merely cumulative.

4. Searches and Seizures -- Search Warrants -- Supporting Affidavits -- Underlying Circumstances -- Personal Knowledge of Affiant.

An affidavit in support of a search warrant meets the requirements as set forth by the United States Supreme Court where the affidavit contains sufficient information to inform a magistrate of the underlying circumstances from which the informant concluded that the contraband was where the informant claimed it was and the affiant swears as of his own personal knowledge that the informant is credible and reliable.

5. Searches and Seizures -- Search Warrants -- Magistrates -- Supporting Affidavits -- Reliability of Anonymous Informants.

A magistrate, in determining whether or not an affidavit in support of a search warrant is sufficient, may require more information from certain affiants than from others before reaching a determination as to the reliability of anonymous informants in different cases; this is a decision for the magistrate and not for the Court of Appeals.

6. Searches and Seizures -- Search Warrants -- Magistrates -- Supporting Affidavits -- Informants -- Affiants.

Simply because a magistrate, in determining whether or not an affidavit in support of a search warrant is sufficient, chooses to believe an affiant who claims he has information from an informant known to the affiant to be reliable, is no reason for the Court of Appeals to conclude that the magistrate has not acted as a "neutral and ...


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