425 P.2d 342 (Nev. 1967), 5188, Fairman v. State

Docket Nº:5188.
Citation:425 P.2d 342, 83 Nev. 137
Party Name:Earl FAIRMAN, Jr., Appellant, v. The STATE of Nevada, Respondent.
Case Date:March 27, 1967
Court:Supreme Court of Nevada
 
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Page 342

425 P.2d 342 (Nev. 1967)

83 Nev. 137

Earl FAIRMAN, Jr., Appellant,

v.

The STATE of Nevada, Respondent.

No. 5188.

Supreme Court of Nevada.

March 27, 1967.

Babcock & Sutton, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., James H. Bilbray and James D. Santini, Deputy Dist. Attys., Las Vegas, for respondent.

[83 Nev. 138] OPINION

COLLINS, Justice.

Appellant was convicted of two crimes, sale and possession of marijuana, a narcotic. His appeal urges two grounds of error. He contends the trial court wrongly admitted evidence of a prior offense and erroneously permitted the jury to find him guilty of two crimes arising out of the same transaction or act. We agree, reverse the convictions, and remand for a new trial.

On December 18, 1965 Curtis Wheeler, a police informer, arranged to purchase marijuana from appellant. Wheeler contacted Fairman at the Cove Hotel in Las Vegas, Nevada, who drove Wheeler to 1649 G Street, entered a house, returned a few minutes later with a brown envelope and gave it to Wheeler for $5.00. On December 22, 1965 the identical series of events occurred. On each occasion contents of the brown envelope proved to be marijuana.

Appellant was charged, in a two count indictment, for selling and possession of narcotics in violation of NRS 453.030, 1 based only upon the events of December 22. During the trial the court allowed evidence of the prior offense of December 18 to be admitted over objection of appellant, pursuant to the authority of Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962) and State v. Nystedt, 79 Nev. 24, 377 P.2d 929 (1963), for the purpose of showing a common scheme or plan. The jury convicted him

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of both crimes. The court denied his motion for a new trial and he appeals. NRS 177.060, subd. 2(b). Sentencing was stayed pending determination of this appeal.

The common scheme or plan doctrine was first engrafted [83 Nev. 139] into the law of Nevada in State v. McFarlin, 41 Nev. 486, at page 494, 172 P. 371, at page 373 (1918), where this court said: 'It is the general rule that evidence of the perpetration of distinct crimes from those for which a defendant is being tried will not be considered. There are, howver, exceptions to this general rule. In the well-known case of People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193, this question was considered at length, and it was held that, generally speaking, evidence of other crimes might be considered only when it tends to establish either (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; or (5) the identity of the person charged with the commission of the crime for which the defendant is being tried. Such is, we think, the correct rule. (Citations omitted.).' In Nester v. State, 75 Nev. 41, at page 47, 334 P.2d 524, at page 526 (1959), this court defined the meaning of the fourth exception to the general rule when it said:

"A common scheme or plan' here means that one act or one plan or scheme might involve the commission of two or more crimes under circumstances that would make it impossible to prove one without proving all. 20 Am.Jur. 296.

"The test is not whether the other offense has certain elements in common with the crime charged, but whether it tends to establish a preconceived plan which resulted in the commission of that crime.' Wigmore on Evidence, 2d Ed. sec. 300.' In that case evidence of a separate and...

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