PEOPLE
v.
JONES
Docket No. 10759.
Michigan Court of Appeals.
Decided February 23, 1972.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.
Sander H. Simen, for defendant on appeal.
Before: DANHOF, P.J., and T.M. BURNS, and O'HARA,[*] JJ.
Leave to appeal denied, 388 Mich. 792.
DANHOF, J.
After a jury trial the defendant was convicted of sale of narcotics. MCLA 335.152; MSA 18.1122. He now appeals and we affirm.
The defendant's first contention is that the trial court allowed an improper reference to other offenses. In his opening statement the prosecutor stated that he would prove that on an occasion subsequent to the crime charged the defendant was involved in an attempted sale of narcotics. The defendant objected and, in the absence of the jury, moved for a mistrial on the ground that the prosecutor had made an improper reference to a separate offense. The prosecutor argued that he would produce evidence that would be admissible under MCLA 768.27; MSA 28.1050 as tending to show a "scheme plan or system". On the facts of this case this *515 testimony would have been admissible. People v Plummer, 189 Mich. 415 (1915); People v Anderson, 13 Mich. App. 247 (1968).
The trial court denied the motion for a mistrial but granted the defendant's motion that proof be confined to the date mentioned in the information, and the jury was informed that proof was limited to that date. We hold that the motion for a mistrial was properly denied. When the court granted the motion to limit proof to the date given in the information it granted the defendant more than he was entitled to as a matter of right, and therefore, the defendant cannot urge this point as error.
The defendant contends that it was error to allow several references to an undercover police officer being in danger. The defendant did not object to these references and he cannot raise this issue for the first time on appeal. People v Borowski, 330 Mich. 120 (1951); People v Miner, 22 Mich. App. 673 (1970).
The defendant contends that it was error to deny his motion to indorse the name of an alleged res gestae witness, one Tyrone Peck, on the information. The defendant argues that the trial court made inconsistent rulings in allowing testimony regarding an utterance made by Peck as part of the res gestae, and then ruling that Peck was not a res gestae witness. This argument must fail because it does not distinguish between a res gestae statement and a res gestae witness. These are two very different things and they have little in common.
The term "res gestae" has been used to justify the admission of testimony which would otherwise be inadmissible as hearsay. Examples of the types of statements which have been called res gestae are (1) declarations of present bodily condition, (2) declarations of present mental states and emotions, (3) *516 excited utterances, and (4) declarations of present sense impressions. The term "res gestae" has also been used to describe statements that are not hearsay and this fact illustrates the indiscriminate coverage of the term. McCormick on Evidence § 274.
The use of the term "res gestae" has been strongly criticized. 6 Wigmore, Evidence, § 1767. While the term continues to be used the more specific analysis advocated by Wigmore is surely more conducive to clarity of thought. See Wigmore, Evidence, §§ 1767-1769; McCormick on Evidence §§ 265-274. However, as long as the usage continues it is important to distinguish between a res gestae statement and a res gestae witness.
A res gestae witness may be broadly defined as a witness whose testimony is necessary to illuminate some important aspect of the case. This obviously has nothing to do with whether or not a hearsay objection should be sustained. On the record before us it is difficult to say whether or not Peck was a res gestae witness. However, his existence became known at least as early as the time of the preliminary examination. When a res gestae witness has not been indorsed his indorsement must be sought within a reasonable time after his existence is discovered. People v Dimitroff, 321 Mich. 205 (1948); People v Amos, 10 Mich. App. 533 (1968). In this case the defendant did not seek indorsement until after the prosecution had rested its case.
The defendant contends that a reversal is required because of a remark by the prosecutor, in his opening statement, that possession of any amount of heroin was a violation of the law. The defendant relies on People v Harrington, 33 Mich. App. 548 (1971) where we held that when a defendant has been found in possession of minute quantities of heroin it must be determined, on all the facts and *517 circumstances of the case, that the quantity of narcotics actually discovered is a remnant of a larger usable amount.
This case is distinguishable from Harrington. In Harrington the defendant was in possession of an amount of heroin that was clearly less than a usable amount. In this case the record clearly shows that a usable amount of heroin was involved. Furthermore, in this case the trial court instructed the jury that in order to be guilty the defendant must have had knowledge that he was dealing with heroin and the intent to deal with heroin.
Affirmed.
All concurred.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.