State v. Wright
| Decision Date | 30 December 1976 |
| Docket Number | No. 8928,8928 |
| Citation | 92 Nev. 734,558 P.2d 1139 |
| Parties | The STATE of Nevada, Appellant, v. Raymond WRIGHT, Respondent. |
| Court | Nevada Supreme Court |
On October 2, 1975, Raymon Wright was indicted by the Clark County Grand Jury for the sale of a controlled substance under NRS 453.321. A motion to dismiss was later granted for the failure of the indictment to allege the defendant's age under the authority of Hass v. State, 92 Nev. 256, 548 P.2d 1367 (1976), in which we ruled that the defendant's age was an essential element of the crime of sale of a controlled substance under the statute and had to be alleged and proved.
From the dismissal the State has appealed asking this court to limit the application of Hass v. State, supra, to those cases where the prosecution seeks to augment the available punishment solely by virtue of the defendant's age.
Upon our renewal consideration we are of the opinion that Hass v. State, supra, is inappropriate, improvidently decided and should be overruled in its future application. Under NRS 453.321 defendant's age is not an essential element of the offense but only a factor that applies to the punishment in the event of a finding that defendant is guilty of the crime of sale of a controlled substance. As such it neither need be alleged nor proved as a part of the process of deciding guilt or innocence. It is germane only to the question of punishment.
The charging portion of NRS 453.321(1) makes it illegal for 'any person to sell, exchange, barter, supply or give away a controlled or counterfeit substance.' (Emphasis added.) It is manifest that subject only to the common-law limits of legal capacity, no individual can be absolved of criminal liability because of age under NRS 453.321. 1
After defining the conduct circumscribed as criminal in subsection 1 of the statute, subsections 2 and 3 speak exclusively to the degrees of punishment which would apply upon a determination of guilt under subsection 1. If the seller proves to be over 21 years of age, subsection 2 applies specifically to a 'violation of subsection 1.' Subsection 3 similarly addresses the punishment of a seller who is under the age of 21 who stands 'convicted . . . (o)f an offense otherwise punishable under subsection 2.'
Being so structured the statute does not set forth two separate and distinct crimes depending upon the age of the defendant but instead one crime which is punishable differently for a convicted defendant over the age of 21 than for one under the age of 21. Since the age of a defendant under this interpretation is not an element of the crime, age therefore need not be alleged and an indictment which fails to incorporate it is not defective. It naturally follows that because age need not be alleged there is no necessity of its proof in the determination of guilt. 2
This decision overrules Hass v. State, supra. The dismissal of the indictment herein is reversed and the case remanded for reinstatement. We commend the trial court for its judicial courage in adhering to precedent for the fault is ours and we hasten to resolve the problem reflected in this appeal.
Reversed and remanded with direction to reinstate the indictment.
1 NRS 453.321: Offenses and penalties: Prohibited acts A; Penalties.
1. Except as authorized by the provisions of NRS 453.011 to 453.551, inclusive, it is unlawful for any person...
To continue reading
Request your trial
-
Wagner v. Carex Investigations & Sec. Inc.
... ... , but chose to exercise its discretion to grant a request for a brief extension of time until the attorney had returned from service in the state legislature. These cases are simply illustrative of the general rule that district courts are allowed considerable discretion in determining whether ... ...
-
Forman v. Wolff
...release. The state of Nevada appealed to the Nevada Supreme Court. Noting that it overruled Hass that very day in State v. Wright, 92 Nev. 734, 558 P.2d 1139 (1976), the Nevada Supreme Court reversed the granting of habeas relief. Warden v. Forman, 92 Nev. 739, 558 P.2d 1141 (1976). The sta......
-
Tucker v. State, 9097
...evidence at trial that he was 21 years of age or older. This court reversed Hass and disposed of Tucker's contention in State v. Wright, 92 Nev. 734, 558 P.2d 1139 (1976). Appellant next contends that his constitutional right of due process under the Sixth and Fourteenth Amendment of the Un......
-
Warden, Nevada State Prison v. Powell, 9464
...Public Defender, Carson City, for respondent. OPINION PER CURIAM: On the authority of, and for the same reasons stated in, State v. Wright, 92 Nev. 734, 558 P.2d 1139, we, sua sponte, reverse the district court's order which granted Danny Powell's petition for a writ of habeas ...