Dougherty v. State, 6077
| Decision Date | 22 June 1970 |
| Docket Number | No. 6077,6077 |
| Citation | 86 Nev. 507,471 P.2d 212 |
| Parties | Michael Hugh DOUGHERTY, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
A jury convicted Dougherty of possession of marijuana. At issue is whether reversible error occurred when the trial court declined to instruct the jury that knowledge of the narcotic character of marijuana is an element of the crime charged. Although the statute upon which the charge was based, NRS 453.030, and the preceding section, NRS 453.020, do not require such knowledge as an element, controlling case precedent does. Wallace v. State, 77 Nev. 123, 359 P.2d 749 (1961); Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962); Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967); Fairman v. Warden, 83 Nev. 332, 431 P.2d 660 (1967); Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969); Mayer v. State, 86 Nev. ---, 470 P.2d 420 (1970). An accurate instruction upon the basic elements of the offense charged is essential, and the failure to so instruct constitutes reversible error. Harvey v. State, 78 Nev. 417, 375 P.2d 225 (1962).
The respondent acknowledges our case law and asks that we overrule it and follow the statute. The judicial addition of a new element (knowledge of the narcotic character of marijuana) apparently was occasioned by the desire to allow the prosecutor to offer evidence of other narcotic offenses and thereby advance his goal of conviction. The cited cases each concern the admissibility of such evidence, and approve admissibility to show knowledge of narcotic character. With commendable candor, the prosecutor in this case suggests that such proof should not be received because of its prejudicial effect, and insists that it is probative of nothing since the possession statute does not require knowledge of the narcotic nature as an element of the offense. His argument is not without substance. However, we are not persuaded to accept it. In our judgment this problem is best handled at the trial level. We perceive no harm in the requirement that the state prove, as an element of the offense, the defendant's knowledge of the narcotic character of marijuana. This does not inevitably require proof of other offenses. In those cases where such proof is not needed, the trial court, in its discretion, should...
To continue reading
Request your trial
-
Hill v. State
...upon the basic elements of the offense charged is essential, and the failure to so instruct is reversible error. Dougherty v. State, 86 Nev. 507, 509, 471 P.2d 212 (1970); Harvey v. State, 78 Nev. 417, 421, 375 P.2d 225 (1962). The same principle applies with equal force to an affirmative d......
-
Rosky v. State
...48.045(2). The State also argues that the prior bad act evidence was relevant to show knowledge. We disagree. See Dougherty v. State, 86 Nev. 507, 509, 471 P.2d 212, 213 (1970) (stating that if the prosecution can establish knowledge without reference to a prior criminal act, the prejudicia......
-
Turner v. Housewright
...to so instruct constitutes reversible error. Turner v. State, 96 Nev. 164, 166, 605 P.2d 1140, 1141 (1980); Dougherty v. State, 86 Nev. 507, 509, 471 P.2d 212, 213 (1970). A review of the instructions as a whole reveals that the trial court gave the basic elements of the crime of robbery. I......
-
Lindsay v. State
...purpose for which such evidence was received. Nester v. State, supra; Jones v. State, 85 Nev. 4, 448 P.2d 702 (1969); Dougherty v. State, 86 Nev. 507, 471 P.2d 212 (1970). Absent an appropriate instruction, the jury was free to use that evidence in anyway it desired and may have done so. Ev......