McNeeley v. State

• Decision Date: 22 December 1965
• Docket Number: No. 4879,4879
• Citation: 81 Nev. 663,409 P.2d 135
• Parties: Charles Earl McNEELEY and Robert E. Johnson, Appellants, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 135

409 P.2d 135

81 Nev. 663

Charles Earl McNEELEY and Robert E. Johnson, Appellants, v. The STATE of Nevada, Respondent.

No. 4879.

Supreme Court of Nevada.

Dec. 22, 1965.

Rehearing Denied Jan. 18, 1966.

Harry A. Busscher, Reno, for appellants.

Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Washoe County Dist. Atty., Herbert F. Ahlswede, and Gene Barbagelata, Deputy Dist. Attys., Reno, for respondent.

ZENOFF, District Judge.

On Sunday, July 5, 1964, at approximately 2:55 P.M., responding to a burglar alarm and a telephone call, the Reno police searched the premises of Menards, a downtown clothing store. That search revealed a door that had been forced open and the appellants hiding within the store. Appellants were arrested, subsequently tried and found guilty of burglary in the second degree. From that conviction, this appeal is brought.

1. Since appellants did not testify during the trial, the court instructed the jury that 'In accordance with a right guaranteed by the constitution of the State of Nevada, no person can be compelled, in a criminal action, to be a witness against himself.' This charge conforms to the language and with the requirements of Art. 1 Sec. 8, of the Nevada Constitution, and NRS 175.175. ¹

Appellants assert as one ground of error, however, the denial of their request that the jury be further instructed that 'In deciding whether instructed that 'In deciding or either of them, may choose to rely on the state of the evidence and upon the failure, if any, of the state to prove every essential element of the charge against them, and no lack of testimony on the part of either defendant will supply a failure of proof by the state so as to support by itself a finding against the defendants, or either of them, on any such essential element.' Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939), is cited as authority in asserting error of the court.

The Bruno case, supra, is inapplicable to the case presently before this court, for it raised no constitutional issue. A federal statute providing that failure to testify shall not create any presumption against a defendant compelled the requested additional instruction in Bruno. We have no similar statute in Nevada.

The United States Supreme Court has stated: 'What the jury may infer given no help from the court is one thing. What they may infer when the court solemnizes the silence of the accused into evidence against him is quite another. * * * We reserve decision on whether an accused can require, as in Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257, that the jury, be instructed that his silence must be disregarded.' Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). See also Fernandez v. State, 81 Nev. ----, 402 P.2d 38 (1965).

The instruction given was in the constitutional and statutory language and it was proper and adequate.

2. Appellants also assign as error the failure of the trial court to instruct the jury that a 'breaking' was a necessary element of the crime of burglary and must be proved. No such requirement is found in the statute defining that crime. ²

Appellants contend that Smith v. District Court, 75 Nev. 526, 347 P.2d 526, 79 A.L.R.2d 283 (1959), recognizes that the commonlaw necessity for a showing of a breaking has been retained although it is not found in NRS 205.060. We find the contrary to be true. The issue in the Smith case, supra, was whether the open portion of a pickup was within the statutory contemplation of a 'vehicle.' The dictum in that case resulting from a quotation from State v. Petit, 32 Wash. 129, 72 P. 1021 (1903), we find, does not establish the requirement of a breaking. That quotation served as an illustration on the issue of an unlawful entry; it did not subject of an unlawful entry; it did not concern itself with the means employed in gaining entry.

The common-law vestige of 'breaking' as an element in the crime of burglary was eliminated from Nevada law by the case of State v. Watkins, 11 Nev. 30 (1876), decided under a statute that ostensibly required forcible breaking and entering in burglary. Since that case, the legislature has rewritten the statute omitting any requirement of breaking. We therefore conclude that the element of breaking no longer need be shown. The trial court was correct in its refusal of this instruction.

3. Appellants further assign as error the court's refusal to give an instruction charging that mere presence at the scene of the crime does not justify any inferences of participation in the crime or of guilt. They disregard, however, NRS 205.065 creating such an inference. ³

Statutory establishment of inferences similar to NRS 205.065 have been held by the United States Supreme Court to be constitutionally permissible. United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); United States v. Romano, 86 S.Ct. 279 (1965). Thus, no error results from the refusal to give appellants' proposed instruction.

4. Appellants' final specification of error is that the trial court erred in refusing to grant a mistrial after prejudicial remarks were made in the prosecutor's closing argument...