No. 13269 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

STATE OF MONTANA, 

Plaintiff and R.espondent , 

-VS - 

JOHN EUGENE HENDRICKS, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable E. Gardner Brownlee, Judge presiding. 

Counsel of Record : 

For Appellant: 

Stimatz and Engel, Butte, Montana 

Joseph C. Engel, 111 argued, Butte, Montana 

For Respondent : 

Hon. Robert Td. Woodahl, Attorney General, Helena, 

Montana 

John North argued, Assistant Attorney General, Helena, 

Montana 

Edward L. Deschamps, 111 County Attorney, Missoula, 

Montana 

Edward McLean, Deputy County Attorney, argued, Missoula, 

Montana 

Submitted: September 1, 1976 

Decided : EjCT i. 3 ;_, ., 

Filed : I. - , 
Mr. Justice Frank I. Haswell delivered the Opinion of the 

Court . 

Defendant appeals from his conviction of theft, aggravated 

assault, and two counts of sale of dangerous drugs in the district 

court, Missoula County. 

On June 5, 1975, Officer Bill Olsen, of the Region One 

Anti-Drug Team, Missoula sheriff's office, and Keith Sorenson of 

the Glasgow police department, met defendant in Missoula. 

According to Olsen's testimony, Hendricks said he would 

sell him 1,000 hits of speed. Olsen didn't have enough money, 

so then Hendricks said he could get some cocaine. The officers 

did not have enough money for this either, so Hendricks said he 

would get them some crystal methamphetamine. Officer Olsen and 

defendant went to a Missoula bar where Hendricks entered and returned. Hendricks then gave Olsen a paper packet containing 

powder in exchange for thirty dollars, representing it to be 

crystal methamphetamine. It was from this transaction that one 

count of sale of dangerous drugs resulted. The powder later 

proved to be caffeine, an uncontrolled substance. 

The second count of criminal sale of dangerous drugs 

arose from an incident occurring in the early morning hours of 

June 8, 1975. 

A couple of days after buying the packet of powder, Officer 

Olsen and Hendricks encountered each other on the street in 

Missoula. Hendricks asked the undercover officer if he had his 

money this time. The officer answered that he did, but when he 

refused to show it Hendricks poked him with a knife, later resulting in the aggravated assault charge. Olsen then pulled his 

gun. Olsen testified that Hendricks, upon seeing the gun, ran 

from Olsen shouting "Don't shoot! * * * Let's make a deal, * * * 

I've got the dope. * * *" 

After Hendricks produced two paper packets from the trunk 
of his car and handed them to Olsen, Olsen attempted to place 

Hendricks under arrest. A scuffle and foot chase ensued. After 

Hendricks had been apprehended, Olsen returned to the Hendricks' 

car. A young woman passenger in the car was gone and the paper 

packets and knife could not be found. 

The theft charge resulted after Hendricks' brother-inlaw reported to police he had found items in the trunk of his 

car that proved to be stolen. 

Defendant presents two issues for review: 

(1) Did the evidence introduced at trial support the 

convictions of two counts, sales of dangerous drugs, under section 54-132(a), R.C.M. 1947? 

(2) Is it manifest error entitling defendant to a new 

trial on all issues, when a brother-in-law of the trial judge 

becomes a member of the jury? 

With respect to the first issue defendant argues the 

prosecution failed to prove Hendricks intended to sell dangerous 

drugs when the one packet contained caffeine and the contents of 

the other two packets were not recovered. 

Section 54-132(a), R.C.M. 1947, provides: 

"A person commits the offense of a criminal sale 

of 

gives 

dangerous drugs if he sells, barters, exchanges, 

sell, barter, exchange 

or give away, manufactures,repares, cultivates, 

compounds or processes any dangerous drug as defined 

in this act." (~mphasis added.) 

The two counts of the information by which defendant was charged 

in the present case alleged defendant "offered to sell" dangerous drugs on June 5 and again on June 8, 1975. 

The jury was instructed as follows on this point: 

"You are instructed that if you find in your 

deliberations that the defendant offered for sale 

what he believed to be a dangerous drug, you must 

find him guilty irregardless of whether or not 

the substance was in fact a dangerous drug." 

This instruction states essentially what defendant argues 
the law to be. Its meaning is essentially the same as defendant's offered instruction, but it is more clearly worded. 

Defendant's argument is on a factual basis. Counsel 

argues that defendant knew the powder was not an illegal drug in 

spite of what he may have represented the contents of the paper 

packets to be when he sold them to the undercover officer. Counsel argues defendant's only intent was to obtain money. 

Such a factual determination was for the jury and will 

not be set aside by this Court if there is substantial evidence 

to support the verdict. 

We find there is substantial evidence to justify the 

jury's verdict that defendant thought he was selling dangerous 

drugs on June 5 and June 8, 1975. 

On June 5, defendant obtained the substance from his 

source only seconds before he delivered it to Officer Olsen. 

He therefore did not have the opportunity to test it. The substance in fact looked like crystal methamphetamine. Within a 

block of the point that defendant and Officer Olsen got in the 

car after obtaining the substance, defendant insisted that Officer Olsen try some of it. Had defendant known that the substance 

was not crystal methamphetamine, it is reasonable to believe, he 

would not have made such a request. 

The encounter on June 8 occurred by accident. Defendant 

was headed south on Ryman Street and Officer Olsen was driving 

north. Defendant made a U-turn and drove up behind the officer. 

Had defendant thought that he had sold Officer Olsen caffeine 

and sugar on June 5, defendant would probably have attempted to 

avoid him by continuing south on Ryman Street. 

Defendant displayed the caution which is characteristic 

of one who deals in drugs. He wanted to see Officer Olsen's 

money before allowing the officer to see where he kept the drugs. 
One could certainly infer from this conduct that defendant was 

afraid that Olsen would seize the drugs and leave without paying. Defendant knifed the officer when he demanded to see the 

drugs first. If defendant thought that he had only worthless 

powder in the trunk, he would not have needed to be so cautious. 

Concerning the second issue, defendant's contention is 

that he was deprived of a fair trial by an impartial jury because the trial judge's brother-in-law served on the jury. 

Defendant alleges the prosecuting attorney, Ed McLean, 

asked the entire jury panel on voir dire whether any of them 

were related to any of the court officials and none responded. 

McLean however, on oral argument, denied he asked the question. 

The juror in question stated under oath he would have made his 

relationship known if he had been asked, as he did in the form 

questionnaire sent to prospective jurors. 

Defendant's unsupported allegation to the contrary will 

not support his claim of erroneous answers on voir dire examination of this juror. State v. Mont . , 545 P.2d 

1070, 33 St.Rep. 95, 100, (1976). (Habeas corpus granted on other 

grounds, 33 St.Rep. 681.) There is no record of the voir dire 

examination before us. 

It is the practice in Missoula County to send a form 

questionnaire to prospective jurors as to their qualification for 

jury service. On this questionnaire, the juror in question indicated that the Hon. E. Gardner Brownlee, the trial judge in this 

case, was his brother-in-law. Defendant did not make timely objection on voir dire nor exercise his option to a preemptory 

challenge of this juror. 

Defendant has not shown authority for disqualification 

of this juror. Section 95-1909(d) (2), R.C.M. 1947, sets forth 

the grounds for challenge for cause. Relation to the trial judge 
is not one of the grounds as was stated in State v.'- -;CIm-un at 

" * * * unless the juror falls within one of 

the categories of section 95-1909, he will not 

be removed for cause without a showing of partiality. * * *" 

There is no showing of partiality here. 

Defendant also contends that the trial judge spoke with 

his brother-in-law on the jury during the course of the trial 

resulting in prejudice. The most that can be made of this allegation is that the juror may have commented to the judge that jury 

service was a demanding and tiring experience. 

If defendant seriously contends there was a discussion of 

the merits of the case, we find no indication it occurred. Rather, 

the record indicates the juror and the judge conducted themselves 

with honor and propriety with a highest regard for fairness to 

the accused. 

Defendant has shown neither error nor prejudice, therefore we affirm the convictions. 

Justice