McShane v. State, 10096

• Court: Supreme Court of Nevada
• Citation: 584 P.2d 707,94 Nev. 669
• Docket Number: No. 10096,10096
• Parties: Robert Michael McSHANE, Appellant, v. The STATE of Nevada, Respondent.
• Decision Date: 03 October 1978

Page 707

584 P.2d 707 94 Nev. 669 Robert Michael McSHANE, Appellant,
v.
The STATE of Nevada, Respondent. No. 10096. Supreme Court of Nevada. Oct. 3, 1978.

Horace R. Goff, Nevada State Public Defender, Robert B. Walker, Jr., Contracting Atty., and J. Gregory Damm, Deputy State Public Defender, Carson City, for appellant.

Rupert C. Schneider, White Pine County Dist. Atty., Ely, for respondent.

[94 Nev. 670] OPINION

PER CURIAM:

A jury found McShane guilty of involuntary manslaughter, and judgment has duly been entered thereon. The information alleged that the victim was killed by McShane in the commission of the unlawful act of operating his automobile in excess of the posted speed limit, while under the influence of intoxicating liquor, in the wrong

Page 708

lane of traffic and without maintaining a proper brake system.

The appellant contends that the jury should have been instructed on the necessity of a unanimous verdict as to at least one of the alternative means charged, that is, speed, liquor, wrong lane, or lack of proper brakes. Such an instruction was not requested. The failure to so request is a waiver of his right to complain unless the instruction was so essential to his case that the court sua sponte was required to give it. Gerbert v. State, 85 Nev. 331, 454 P.2d 897 (1969); Mears v. State, 83 Nev. 3, 422 P.2d 230 (1967). Moreover, we note that evidence was introduced which would have allowed the jury to find that McShane drove his car at an excessive speed, while under the influence of intoxicating liquor, in the wrong lane of traffic and without proper brakes. Consequently, the propriety of such an instruction, had it been requested, is doubtful.

Affirmed. ¹

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1 The Chief Justice designated the Honorable David Zenoff, Chief Justice (Retired) to sit in the place of the Honorable Noel E. Manoukian, Justice, who voluntarily disqualified himself in this case. Nev. Const. art. 6, § 19; SCR 244.