State v. George
| Decision Date | 01 April 1964 |
| Docket Number | No. 1262,1262 |
| Citation | 390 P.2d 899,95 Ariz. 366 |
| Parties | STATE of Arizona, Appellee, v. Charles W. GEORGE, Appellant. |
| Court | Arizona Supreme Court |
Rees, Estes & Browning, Tucson, for appellant.
Charles W. George was one of three defendants tried jointly and convicted of selling narcotics. The other two defendants, Bobby Campuzano and Malcolm Sullivan, are not parties to this appeal by George.
The facts are as follows: Joe Valencia, a paid informer, met the defendant Campuzano and conversed with him regarding the purchase of narcotics. Later that same day, Valencia Joined Compuzano at the latter's home. The two of them got into a car driven by appellant George. Defendant Sullivan, who owned the car, sat in the front passenger's seat.
Appellant George drove the car and its passengers to a local drive-in restaurant. A conversation took place in the car concerning whether Valencia could purchase any 'stuff' from Sullivan and Campuzano. The only testimony regarding this conversation is that Sullivan, Compuzano, and Valencia were talking. There is no testimony that George was a party to the conversation. Following the 'drive-in' conversation, they drove back towards Campuzano's house. On the way, Sullivan reached into the headliner of his car and took out a bottle of clear liquid (later identified as containing Demerol, a narcotic) and a gum wrapper containing approximately fifteen pills (later identified as codein sulfate, a narcotic). Sullivan then handed the bottle and the wrapper to Campuzano and told Valencia he could have the pills on credit. Campuzano then gave the bottle and wrapper to Valecia, who gave the money to Campuzano, who, in turn, gave it to Sullivan. During all this time appellant George remained in the car as the driver. When they arrived at Campuzano's house, Valencia went to his car and drove to the State Office Building in Tucson. He gave the material to state narcotics agents.
Appellant's assignments of error may be grouped into three basis categories: first, the sufficiency of the evidence to sustain a finding that appellant aided and abetted in the sale of narcotics; second, certain evidentiary points; and third the instructions given to the jury.
Appellant contends the trial court erred in denying his motions for a directed verdict and for dismissal because there was no evidence in the record to show that appellant participated in the commission of the crime, or that he acted in concert with Sullivan and When reviewing the sufficiency of the evidence to sustain a conviction, this Court will view the evidence in the light most favorable to the state and will resolve all reasonable inferences unfavorably to the appellant-defendant. State v. Silvas, 91 Ariz. 386, 372 P.2d 718 (1962).
Campuzano, or that he had any knowledge of the presence of narcotics in the automobile, or that he received any of the benefits of the alleged sale. In short, appellant contends he was merely present at the time of the sale.
Mere presence at the scene of of a crime is insufficient to establish guilt. Carroll v. State, 90 Ariz. 411, 368 P.2d 649 (1962). But in the instant case certain evidence, independent of his presence in the car, connects the appellant with the sale of the narcotics. Because the events leading up to the sale took place in the appellant's presence, the jury could infer that he overheard the conversation and observed the transaction. Appellant made no attempt to disassociate himself from the crime. Instead, he continued to drive the car. Driving after he became aware that narcotics were being sold was a circumstance which the jury could reasonably consider as an indication of aiding and abetting in the crime.
During the trial, Valencia stated on cross-examination that he had been a user of narcotics at one time. He stated he was not a user of narcotics at the time of the trial and that it had been 'quite some time' but 'not long enough' since he had last used narcotics. The lower court then sustained the prosecutor's objection to a question concerning the type of narcotics used by the witness. Later, during a recess, defense counsel offered to prove that Valencia had used narcotics during the months of January and February of 1961. In chambers, the judge heard testimony from defense witness Gloria Miranda that she knew Valencia was a user of narcotics during January and February of 1961. The court refused to let this witness take the stand and be examined in the presence of the jury because the court found this to be a collateral matter.
Appellant now contends the use of narcotics by the state's chief witness was not a collateral matter. Instead, appellant takes the position that the use of narcotics may be shown for the purpose of discrediting a witness. However, the record shows that defense counsel advised the court that he wished to adduce Miranda's testimony for the purpose of showing that Valencia was a user of narcotics in January and February 1961, 'contrary to his testimony'. In other words, the testimony was to be offered for the purpose of impeaching the previous testimony of Valencia. In view of the admission by Valencia that he had been a narcotics user, and his statement that he had not used it for 'quite some time' but the time was 'not long enough', Miranda's testimony could not be considered impeachment of such statements. If it was offered for the purpose of showing that Valencia was a user of narcotics, he had already admitted that fact, and the Miranda testimony would be cumulative. Defense counsel did not make the offer of testimony on any other basis than impeachment, and is not entitled to construct a different theory for the purposes of appeal. There was no prejudicial error in the court's ruling on this offered testimony.
Appellant also contends that the trial court improperly admitted testimony of items not embraced in the information. Defendants Campuzano and Sullivan and appellant George were charged with the sale of Demerol, a narcotic present in the bottle of clear liquid. The testimony of Valencia adduced at trial, over objection, covered not only the bottle containing Demerol, but also a gum wrapper holding approximately fifteen pills. These pills, a police chemist and a narcotics agent testified, contained codein sulfate.
This Court recently stated that evidence of other criminal acts is admissible when so blended or connected with the crime that proof of one incidentally involved...
To continue reading
Request your trial
-
Gaston v. Hunter
...another purpose or under a different theory. See Purvis v. Silva, 94 Ariz. 62, 63 n. 1, 381 P.2d 596, 597 n. 1 (1963); State v. George, 95 Ariz. 366, 390 P.2d 899 (1964); Arizona Water Co. v. City of Yuma, 7 Ariz.App. 53, 436 P.2d 147 (1968); See also Alires v. Southern Pacific Co., 93 Ariz......
-
State v. Poland
...read in conjunction with an instruction that the defendant could not be found guilty in the absence of intent. State v. George, 95 Ariz. 366, 371, 390 P.2d 899, 904 (1964) (although element of "intent" omitted from instruction on aiding and abetting, no reversible error found where instruct......
-
State v. Boag
...independently, when if read together they convey the proper idea. State v. Corrales, 95 Ariz. 401, 391 P.2d 563; State v. George, 95 Ariz. 366, 390 P.2d 899; State v. Simmering, 89 Ariz. 261, 361 P.2d 4; and State v. Evans, 88 Airz. 364, 356 P.2d 1106. A reasonable interpretation of the ins......
-
State v. Hernandez
...the Dodge, only that there was one missing. Mere presence at the scene of the crime is insufficient to establish guilt. State v. George, 95 Ariz. 366, 390 P.2d 899 (1964). All that is present here are the facts described above plus the testimony of the other incident which, according to the......