Summary
In Muller v. Sheriff, 93 Nev. 686, 572 P.2d 1245 (1977), the Nevada Supreme Court rejected the defendant's assertion that "since the sale of... different controlled substances was consummated simultaneously in one transaction, his conduct [did] not constitute two separate offenses for which he may be charged."
Summary of this case from United States v. Figueroa-BeltranOpinion
No. 10363
December 30, 1977
Appeal from order denying pretrial petition for a writ of habeas corpus, Eighth Judicial District Court, Clark County; Carl J. Christensen, J.
Morgan D. Harris, Public Defender, and Peter J. Christiansen, Deputy Public Defender, Clark County, for Appellant.
Robert List, Attorney General, Carson City; George E. Holt, District Attorney, and L.J. O'Neale, Deputy District Attorney, Clark County, for Respondent.
OPINION
An indictment charged Pierre Andree Muller with two counts of selling heroin (NRS 453.321; NRS 453.161) and one count of selling cocaine (NRS 453.321; NRS 453.171). In a pretrial habeas corpus proceeding, one of the heroin counts was dismissed. Muller has appealed from that portion of the district judge's order which denied the habeas challenge to the other two counts.
There is evidence in the transcript of the grand jury proceedings to establish probable cause to believe that on September 28, 1977, Muller sold heroin, a schedule I controlled substance (NRS 453.161), and cocaine, a schedule II controlled substance (NRS 453.171), to an undercover narcotics agent. Both drugs were delivered, and payment for each was received, simultaneously.
Appellant contends that, since the sale of the different controlled substances was consummated simultaneously in one transaction, his conduct does not constitute two separate offenses for which he may be charged. We disagree.
The sale of heroin and the sale of cocaine are distinct offenses requiring separate and different proof. See People v. Edwards, 362 N.E.2d 439 (Ill.App. 1977); People v. Lopez, 337 P.2d 570 (Cal.App. 1959). Here the record shows that "two distinct offenses were [probably] committed since the sale of each controlled substance `requires proof of an additional fact which the other does not,' viz., the particular . . . identity of the controlled substance sold." State v. Campbell, 549 S.W.2d 952, 955 (Tenn. 1977). See also, State v. Adams, 364 A.2d 1237 (Del.Super.Ct. 1976).
Affirmed.