Whitmore v. Sheriff

504 P.2d 703, 88 Nev. 688, 1972 Nev. LEXIS 560

• Court: Nevada Supreme Court
• Decided: December 18, 1972
• Docket: No. 7019
• Status: Published

Opinion

OPINION

Per Curiam:

Appellant was charged, by grand jury indictment, with the sale of a controlled substance “marijuana” in violation of NRS 453.161 (4) (j) and NRS 453.321 (2) (a)(1).

In this appeal from a denial of pre-trial habeas relief in the district court his basic contention is that he was, at most, only the agent of the purchaser and thus immune from prosecution under our decision in Roy v. State, 87 Nev. 517,489 P.2d 1158 (1971). At this juncture, his reliance on Roy is misplaced.

Roy involved the right of an accused to have a “purchasing agent” instruction given to the jury, “[wjhere the evidence does not foreclose it, . . ,”¹ 87 Nev. at 518, 489 P.2d at 1158. Roy also said that, “[i]n the Glosen2 cases, habeas corpus matters concerned merely with probable cause to hold for trial, this court held one who traffics in narcotics³ by assisting a seller may be found guilty of a ‘sale’ although he takes no profit from the transaction.” 87 Nev. at 519, 489 P.2d at 1159.

The record before us contains sufficient evidence to establish probable cause that appellant’s involvement in the transaction was in furtherance of the sale, which is not questioned.

The judgment of the trial court is affirmed.

1 Appellant might well be entitled to a Roy instruction when his case is submitted to the jury.

2 Glosen v. Sheriff, 85 Nev. 145, 451 P.2d 841 (1969), and Glosen v. Sheriff, 85 Nev. 166, 451 P.2d 843 (1969).

3 Linder our statutes marijuana was classified as a narcotic prior to January 1, 1972. Since that date it is classified as a controlled substance, NRS 453.161 (4) (j). Its sale is still a felony. NRS 453.321. See Stats, of Nev. 1971, ch. 667, p. 1999 et seq.