State v. Gortarez

Decision Date24 June 1964
Docket NumberNo. 1278,1278
Citation96 Ariz. 206,393 P.2d 670
PartiesSTATE of Arizona, Appellee, v. Johnny GORTAREZ, Appellant.
CourtArizona Supreme Court

Robert W. Pickrell, Atty. Gen., by David M. Lurie, Asst. Atty. Gen., Charles N. Ronan, Maricopa County Atty., for appellee.

Duane W. Bolze, Phoenix, for appellant.

BERNSTEIN, Justice.

Defendant was charged with two counts of possession of marijuana and two counts of the sale of marijuana. The counts pertaining to the possession of marijuana were quashed and defendant was convicted on the two counts pertaining to sales. Defendant was sentenced to from 5 to 7 years on each count with the sentences to run concurrently.

Defendant contends (1) that testimony introduced at the trial that he had smoked marijuana was prejudicial, (2) that evidence of possession of marijuana, a crime different than that charged, was improperly admitted, (3) that the prosecution was improperly allowed to amend the information to change the date on which one of the crimes was allegedly committed. The defendant's contentions will be considered in the order heretofore set forth.

On redirect examination by the prosecutor of a witness for the state the following took place:

'Q Have you ever seen the defendant smoke marijuana?

'A Yes.

'MR. BOLZE: I object, your Honor. Your Honor, I not only object, but at this time I move the court that the answer be stricken, and I would like to also make another motion in support of this.

'THE COURT: Well, the objection will be sustained. The answer will be stricken and the jury instructed to disregard the answer.'

Defendant then made a motion the nature of which does not appear from the transcript but which he contends in his brief was a motion for a mistrial. This motion was taken under advisement and not ruled upon.

Evidence of smoking marijuana is so prejudicial in a case where the charge is for the sale of marijuana that the case must be reversed unless there is a showing that it comes within one of the recognized exceptions to the proof of other crimes. State v. Little, 87 Ariz. 295, 350 P.2d 756, 86 A.L.R.2d 1120. One admission of using narcotics is sufficient to require a reversal, Helton v. U. S., 5 Cir., 221 F.2d 338. The state argues, however, that the admonition of the trial judge and a general charge that the verdict was to be governed solely by evidence introduced and the law as stated by the court is sufficient to cure the error.

In State v. Kellington, 93 Ariz. 396, 398, 381 P.2d 215, 216, where there had been testimony of a prior conviction not introduced for purposes of impeachment we said:

'* * * The damage had been done, for the effect of such testimony, having no relation to the crime charged, was to create in the minds of the jury an impression that the defendant's character was bad, and no admonition by the court could expunge this prejudicial attribute.' (Emphasis added.)

We also said that the testimony was "like the bell that cannot be unrung or the whistle that cannot be unblown." 93 Ariz. at 398, 381 P.2d at 217.

State v. Byrd, 62 Ariz. 24, 29, 152 P.2d 669, 671, was a case in which the prosecutor had asked a state's witness a question an affirmative answer to which would have shown a different offense than that which the defendant was charged. We said:

'It was an effort on the part of the county attorney to prove the appellant had committed, or attempted to commit, a different offense than the one charged in the information upon a different party at a different time * * * the ruling of the court in instructing the jury to disregard the last question asked her did not cure the error.' (Emphasis added.)

And in Helton v. U. S., 5 Cir., 221 F.2d 338, 340-341:

'It is admitted, of course, that, as a general rule, evidence which is withdrawn from the consideration of the jury by the direction of the trial judge may not serve as a basis for...

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16 cases
  • State v. Hernandez
    • United States
    • Arizona Court of Appeals
    • February 27, 1968
    ...See, e.g., State v. Hughes, 102 Ariz. 118, 426 P.2d 386 (1967); State v. Gallagher, 97 Ariz. 1, 396 P.2d 241 (1964); State v. Gortarez, 96 Ariz. 206, 393 P.2d 670 (1964); State v. Jacobs, 94 Ariz. 211, 382 P.2d 683 (1963); and State v. Little, 87 Ariz. 295, 350 P.2d 756, 86 A.L.R.2d 1120 (1......
  • State v. Sedillo
    • United States
    • Court of Appeals of New Mexico
    • October 31, 1969
    ...he was prejudiced by evidence which he injected into the case. State v. Chavez, 98 Ariz. 236, 403 P.2d 545 (1965); State v. Gortarez, 96 Ariz. 206, 393 P.2d 670 (1964); People v. Feldkamp,51 Cal.2d 237, 331 P.2d 632 (1958); People v. Realmo, 28 Ill.2d 510, 192 N.E.2d 918 (1963); State v. Bo......
  • State v. Chaney
    • United States
    • Arizona Court of Appeals
    • June 12, 1967
    ...offenses. State v. Hughes, 10i Ariz. 118, 426 P.2d 386 (1967); State v. Gallagher, 97 Ariz. 1, 396 P.2d 241 (1964); 1 State v. Gortarez, 96 Ariz. 206, 393 P.2d 670 (1964); and State v. Jacobs, 94 Ariz. 209, 382 P.2d 683 (1963), are four decisions subsequent to Dutton which impel us to the v......
  • State v. Taylor
    • United States
    • Missouri Court of Appeals
    • April 9, 1974
    ...'narcotic' paraphernalia tended to prove that the defendant had heroin in his possession, available for sale (See State v. Gortarez, 96 Ariz. 206, 393 P.2d 670, 672 (1964)) and that the substance sold was of a narcotic character. See also Overton v. State, 78 Nev. 198, 370 P.2d 677 (1962) w......
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