[89 Ariz. 216] Dominic Piccirilli, Tucson, for appellant.
Wade Church, former Atty. Gen., Stirley Newell, Asst. Atty. Gen., Harry Ackerman, Pima County Atty., Tucson, Arthur R. Buller, Deputy County Atty., Tucson, for appellee.
This is an appeal from conviction and sentence to the state penitentiary for the offense of unlawful possession of narcotics, to wit, heroin.
Appellant (hereinafter called defendant) accompanied by Adeline Licudine, a married woman, and defendant's nephew, Eddie Lucero went from Phoenix to Nogales, Arizona, where they crossed the border into Nogales, Sonora, and purchased heroin. Upon return to a Nogales, Arizona motel [89 Ariz. 217] room they gave themselves a number of 'fixes' completely consuming the purchase. Thereafter, a second heroin purchase was made across the border.
On the return trip to Phoenix, the trio was stopped and searched by officers. No narcotics were immediately found. However, the officers did find a paraphernalia kit known as a narcotic users' kit which contained an eye dropper, a syringe, and a needle wrapped in paper. Later Mrs. Licudine produced a rubber condom containing heroin from within her person.
The officers conducted the trio to the State Building in Tucson where Mrs. Licudine and Lucero voluntarily gave written statements confessing their respective parts in the narcotics transaction. Mrs. Licudine and Lucero were convicted and sentenced for possession of narcotics. The conviction of the defendant followed.
Defendant assigned as error (a) the admission of testimony regarding the defendant's personal relationship with Mrs. Licudine, (b) the misconduct of a county attorney and (c) admission of testimony regarding the fact that the defendant was a user of narcotics.
Defendant claimed that the interrogation of Lucero and defendant with respect to the personal relationship between Mrs. Licudine and defendant constituted an attack upon the character and reputation of defendant when these were not in issue. Defendant also contended that since the truth of the testimony was all that was at issue, the general rule should apply, i. e., only traits bearing on honesty and veractity are permissible, and evidence of sexual immorality and other traits having no direct connection with veracity are excluded. State v. Harris, 73 Ariz. 138, 238 P.2d 957; and see Udall, Arizona Law of Evidence, Sec. 66, pp. 99, 100. Finally, on his first assignment of error defendant contended that the interrogation was an attempt to get before the jury evidence of specific acts of misconduct which did not result in the conviction of a felony.
It is a fundamental proposition of law that the jury is entitled to be apprised of any bias, prejudice or hostility which a particular witness may feel toward a party to a lawsuit or prosecution in order that
the jury may better be able to evaluate the true worth of that witness' testimony. State v. Rothe, 74 Ariz. 382, 249 P.2d 946; State v. Deen, 69 Ariz. 188, 211 P.2d 460; State v. Guerrero, 58 Ariz. 421, 120 P.2d 798; and see Udall, Arizona Law of Evidence, Sec. 65, p. 95.
We find no error by the trial court in permitting the questioning of the witness, Eddie Lucero, and the defendant himself, concerning defendant's personal relations with Mrs. Licudine. It is apparent that Mrs. Licudine became hostile to the State. Her testimony was at variance with the [89 Ariz. 218] statement she had previously given the officers. Thus it became pertinent and proper to show her bias as evidenced by her 'interest' in or relation to defendant.
The fact that this testimony might not have been admissible for any other purpose does not defeat its proper admission when it is competent and admissible on a material issue. If evidence is admissible for any purpose, the fact that it discloses incidentally incompetent matter does not exclude it. Lawrence v. State, 29 Ariz. 247, 240 P. 863, rehearing denied, 29 Ariz. 318, 241 P. 511, certiorari denied 269 U.S. 585, 46 S.Ct. 201, 70 L.Ed. 425.
Indeed, in State v. Guerrero, supra, 120 P.2d at page 801, this Court held:
'* * * Interest of a witness may always be shown. 28 R.C.L. 615, section 204. If Navarro and defendant were living together, it is very probable that her testimony would be ...