Wallace v. State

445 P.2d 29 (1968)

Byron Max WALLACE, Appellant, v. The STATE of Nevada, Respondent.

No. 5498.

Supreme Court of Nevada.

September 18, 1968.

Raymond E. Sutton, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Clark County Dist. Atty., George H. Spizzirri, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

ZENOFF, Justice.

Byron Max Wallace was charged with the crimes of possession of narcotics (NRS 453.030 (1965)) and planting or cultivating marijuana (NRS 453.330 (1965)). After preliminary hearing he was bound over to district court for trial, but he sought release by habeas corpus alleging that no sufficient cause existed to hold him, and that he could not be charged with both crimes because they arose out of the same incident. His petition for habeas corpus was denied and he appeals.

The police were directed by an informant to Wallace's trailer where they observed marijuana growing in his back yard. When arrested he volunteered, "It is about those plants in my back yard, isn't it?" At the preliminary hearing he testified that he had smoked marijuana and was familiar with it. He admitted planting the seeds but denied knowing that they were marijuana.

We are satisfied from the record that reasonable cause exists to hold Wallace for trial. The seizure of the plants was legal since they were open to public view *30 and no search warrant was therefore needed. The record also shows sufficiently that he and his wife had consented to the officers' entry onto the premises.

His contention that he cannot be charged with both crimes has no merit. He can be tried on both, but convicted of only one. Fairman v. State, 83 Nev. 137, 425 P.2d 342 (1967). Thus the trial may proceed since the violation of that principle has not yet occurred.

Affirmed.

THOMPSON, C.J., and COLLINS, BATJER and MOWBRAY, JJ., concur.