STATE v. GASTELUM

PHELPS, Justice.

Defendant was convicted in the superior court of Pima County, Arizona, of the violation of the Uniform Narcotics Act of 1935, A.C.A. 1939, § 68-801 et seq., to wit, that he wilfully and unlawfully had in his possession and under his control certain narcotic drugs commonly known as marijuana. From the judgment entered thereon defendant appeals.

Two assignments of error have been presented for consideration:

Counsel for defendant contend that the title of the act falls far short of the constitutional requirements of article 4, part 2, section 13. This section of the constitution provides that:

The title of the Arizona Uniform Narcotics Act of 1935 reads as follows:

The above provision of the constitution has been considered by us in a number of cases, from the case of Laney v. State, 20 Ariz. 416, 181 P. 186, to State v. Harold, 74 Ariz. 210, 246 P.2d 178, and we have said that we would not declare a legislative act unconstitutional unless satisfied beyond a reasonable doubt of its unconstitutionality, and as we said in State v. Davey, 27 Ariz. 254, 232 P. 884, 885:

We said in In re Lewkowitz, 70 Ariz. 325, 220 P.2d 229, 233:

The above pronouncements have been frequently made by this court, but counsel says there is nothing in the title of the act in question to put one on inquiry as to whether it embraced the imposition of penalties for its violation. First, let us observe that we have held in State v. Harold, supra, that such inclusion is not necessary, citing Dennis v. Jordan, 71 Ariz. 430, 229 P.2d 692; and secondly, the evil effect of the use of narcotic drugs upon the health and morals of an individual or of a people is so generally known that the court will take judicial notice thereof, and we believe that because of the general knowledge of its evils the title to the act above quoted would suggest to the ordinarily reasonable and prudent person that the legislation would be regulative and restrictive in character and would provide punishments for its violation.

We held in In re Lewkowitz, supra, that the title of the act creating the incorporated Bar of Arizona, which reads:

was broad enough to include in the body of the act provisions relating to the admission, discipline, and disbarment of members of the Bar and to provide the procedure therefor. We therefore hold that the title in the instant case is sufficiently broad and inclusive to meet the requirements of article 4, part 2, section 13 of the state constitution.

The second assignment of error is directed at the alleged misconduct of the assistant county attorney which, it is claimed, constitutes reversible error and with which claim we agree. It is difficult to understand why counsel frequently permit their zeal to dethrone their judgment and force this court to reverse a case, often resulting in a guilty person escaping punishment altogether and always results in an unnecessary expense to the taxpayers.

In addition to the charge against defendant of the possession and control of narcotics, he was charged with a previous conviction which is permitted under our statute. Section 44-1004, A.C.A. 1939, provides in relation thereto that:

Notwithstanding the provisions of this section of our law enjoining any reference to the previous conviction during the course of the trial, where, as in this case, defendant had admitted the previous conviction, and notwithstanding the adverse rulings of the learned trial judge, counsel for the state, on cross-examination of the defendant, repeatedly sought to elicit from him admissions indicating a former conviction. To illustrate, defendant was asked by the assistant county attorney:

Counsel for the state undertake to justify these questions relating to a previous conviction upon an exception to a rule of evidence to the effect that where a defendant is on trial for any particular offense, evidence of other similar offenses is admissible against him for the purpose of showing motive, intent, absence of mistake or accident, or a common scheme or plan. True, this exception is quite as firmly embedded in our rules of evidence as the rules themselves but nowhere, so far as we know, has such exception or even a rule of evidence been invoked to override a clear mandate of the legislature enjoining any reference to such other offense or offenses, and we are confident none can be found.

Every person charged with a crime is entitled, under our constitution, to a fair and impartial trial, and it is as much the duty of the prosecutor to see that he receives fair treatment as it is to see that the jury is presented with all available evidence tending to establish his guilt. The defendant was not only denied that fairness to which he was entitled but counsel for the state wholly disregarded section 44-1004, supra, clearly enjoining the conduct in which he engaged in the presence of the jury. A reprimand from the trial judge under the circumstances would have been justified.

Judgment reversed and cause remanded with directions to grant a new trial.

STANFORD, C.J., and LA PRADE, UDALL, and WINDES, JJ., concurring.