Stewart v. Warden, Nevada State Prison
| Decision Date | 09 August 1978 |
| Docket Number | No. 10141,10141 |
| Citation | 94 Nev. 516,579 P.2d 1244 |
| Parties | James Rudy STEWART, Jr., Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent. |
| Court | Nevada Supreme Court |
James Rudy Stewart, Jr., was convicted, by jury verdict, of first degree murder and the judgment and sentence were affirmed by this court in Stewart v. State, 92 Nev. 168, 547 P.2d 320 (1976). Thereafter, Stewart filed a petition for post-conviction relief which was summarily dismissed. On appeal that order was vacated and the case was remanded to permit the district court to hear and resolve the contentions raised in the post-conviction petition. Stewart v. Warden, 92 Nev. 588, 555 P.2d 218 (1976).
The instant proceeding is Stewart's appeal from the order which the district court entered after it had considered and resolved those allegations contained in the petition for post-conviction relief.
The only assigned errors complain of two (2) jury instructions. At trial there was no objection to either instruction; therefore, the alleged errors would not have been considered in Stewart's direct appeal. See Cutler v. State, 93 Nev. 329, 566 P.2d 809 (1977), where we noted that a failure to tender an objection during trial precludes appellate consideration of the claimed error. Cf. Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977). Since the alleged errors were not cognizable on the direct appeal, A fortiori, they are not cognizable in a subsequent post-conviction proceeding.
Affirmed.
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St. Pierre v. State
...jury instruction under the so-called "contemporaneous objection rule" constitutes a waiver of such claim, Stewart v. Warden, 94 Nev. 516, 516, 579 P.2d 1244, 1245 (1978); McCall v. State, 91 Nev. 556, 557, 540 P.2d 95, 95 (1975), Hankerson, through footnote, has seemingly deferred to the st......