[89 Ariz. 79] Catherine Mealey, Flagstaff, for appellant.
Wade Church, Atty. Gen., Stirley Newell, Asst. Atty. Gen., and Laurence T. Wren, Coconino County Atty., Robert Warden, Deputy County Atty., Flagstaff, for appellee.
The defendant was charged with four counts of possession and sale of marijuana. The information alleged that on or about March 14, 1959, the defendant had sold five marijuana cigarettes to one Cacias and five to one O'Dell, both purchasers being undercover investigators for the State Liquor Control Commission. The two counts of possession were in connection with these two alleged sales. The defendant entered a plea of not guilty and the case was brought to trial. The defendant did not deny the acts charged but confessed them and entered a defense of entrapment. At the conclusion of the trial the jury brought in a verdict of guilty on each count. The trial judge entered identical sentences on each count and ordered that they should run consecutively.
Defendant's first assignments of error relate to the admission of certain evidence [89 Ariz. 80] tending to show that defendant had possessed and sold marijuana on several occasions during the eight days preceding the day on which he is charged with possession and sale. This evidence tends to prove other crimes than the ones charged in the information.
As a general rule evidence of separate and distinct crimes is inadmissible. The rule and its exceptions are ably set out in Dorsey v. State, 25 Ariz. 139, 213 P. 1011. One such exception is the showing of intent. Ordinarily proof of the acts of possession or sale are sufficient to show intent and therefore would exclude evidence of other crimes. But the defense of entrapment puts the predisposition and criminal intent in issue in a way which makes additional proof of intent necessary. When such condition exists we have held that 'evidence of other offenses of a similar nature committed by the defendant is admissible for the purpose of proving intent.' Hightower v. State, 62 Ariz. 351, 355, 158 P.2d 156, 158. See also Richardson v. State, 23 Ariz. 98, 201 P. 845; People v. Outten, 13 Ill.2d 21, 147 N.E.2d 284; United States v. Santore, D.C.E.D.Penn., 164 F.Supp. 362 affirmed 3 Cir., 270 F.2d 949 (where other transaction evidence was admitted on issue of entrapment).
The evidence objected to showed that defendant had made a sale of bulk marijuana, that he had smoked marijuana (which he supplied) several times with the state's agents, and that he supplied the marijuana which was sold by one of his companions to an agent, all within a few days before the sales in question. A careful review of the evidence in the voluminous record reveals that this evidence bears directly on rebutting defendant's contention that the agents and not his own criminal intent were the procuring cause in the commission of the crimes charged.
The defendant himself readily admitted that he used marijuana and that he kept some for that purpose hidden under a rock in the park. In the light of this and all the evidence in the record we do not think that the evidence complained of prejudiced any of the rights of the defendant.
The defendant objects further that certain marijuana seeds and certain cigarettes sold by the defendant's friends, which were presented for identification but not offered in evidence, were so handled to his prejudice. These items were only marked for identification. The purpose was to lay a foundation to support testimony bearing on the previous transactions introduced. In the case of the seeds, they were related to testimony that the defendant cleaned bulk marijuana at a certain place and would have tended to corroborate that evidence. The cigarettes sold by defendant's friends were part of the foundation for evidence showing that defendant supplied[89 Ariz. 81] bulk marijuana to his friends but were never introduced in evidence. In any event, defendant made no proper objection at the time they were offered for identification and we will not consider on appeal matters not objected to at trial. State v. Evans, Ariz., 356 P.2d 1106.
Still another complaint of defendant is that even though this prior transaction evidence is admissible, it should not have been admitted in the state's case in chief. It should be noted that before any of this evidence tending to show intent was broached by the state, counsel for defendant raised the matter by asking about bulk marijuana to begin to lay the foundation for the planned defense of entrapment. Throughout the state's case in chief, defense counsel continued to lay the same foundation. When defendant finally took the stand he did not hesitate to admit the acts charged or that he regularly used marijuana.
It is a universal rule that the trial judge must have some discretion in the order of the admissibility of evidence. James v. State, 53 Ariz. 42, 84 P.2d 1081; State v. Cruce, 61 Ariz. 233, 147 P.2d 698; State v. Folk, 78 Ariz. 205, 277 P.2d 1016. In view of the record in this case we cannot sustain defendant's claim that the order of admission in this case in any way prejudiced his rights. The estate was not bound, when defense had already begun to lay the foundation for a defense of entrapment, to wait until after the defendant took the stand to counteract that defense. The evidence that the defendant committed the acts charged was so overwhelming that the state could reasonably anticipate that defendant's plea of innocent was based on a defense of entrapment.
As a further assignment of error, defendant asserts that the jury requested and received a copy of the information which they carried into the jury room during deliberations. There is nothing appearing in either the transcript of record or the minute entries which would tend to verify this claim. No affidavit has been presented to this court which could be used as a basis for this court to consider this question. Furthermore, the matter was not mentioned in the motion for new trial. In view of the absence of any record on which this court may act, we find no reason to depart from our long standing rule that on appeal we will consider only those matters which appear in the records of the trial court. Sam v. State, 33 Ariz. 383, 265 P. 609; State v. Peters, 60 Ariz. 102, 131 P.2d 814.
We next consider defendant's contention that the trial court erred in giving the state's requested instruction number 1 relating to the elements of entrapment. In the next to the last sentence the instruction reads:
'But if you find in this case that this man already had in his mind the desire [89 Ariz. 82] to violate the law * * * then the law says that ...