471 P.2d 212 (Nev. 1970), 6077, Dougherty v. State

Docket Nº:6077.
Citation:471 P.2d 212, 86 Nev. 507
Party Name:Michael Hugh DOUGHERTY, Appellant, v. The STATE of Nevada, Respondent.
Case Date:June 22, 1970
Court:Supreme Court of Nevada

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471 P.2d 212 (Nev. 1970)

86 Nev. 507

Michael Hugh DOUGHERTY, Appellant,


The STATE of Nevada, Respondent.

No. 6077.

Supreme Court of Nevada.

June 22, 1970.

[86 Nev. 508] David C. Polley, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, William P. Beko, Dist Atty., Tonopah, for respondent.


THOMPSON, Justice.

A jury convicted Dougherty of possession of marijuana. At issue is

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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 [86 Nev. 509] (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. 466, 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...

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