Cook v. State

Feb 17, 1958
4025
Reporters:
, ,
Before:
Per Curiam

OPINION

Per Curiam:

Defendant was charged with a gross misdemeanor in that he “did willfully and unlawfully use and have on his person a cheating or thieving device to ‍‌‌‌‌​‌‌​​‌‌​‌‌‌‌​​‌‌‌‌‌‌​​​‌​​‌‌​‌​​​​​​​‌​​‌‌‌​​​​‌​​​‌‌​‌​​‌​​​​‌‌‌​​‌‌‌​‌​‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌​‌‍facilitate removing part of the contents of a slot machine.” In his appeal from judgment of conviction, he asserts that the proof was fatally defective in not showing that the slot machine in question was a licensed slot machine; that the legislature must have intended so to provide because NRS 465.080 making any of sundry cheating ‍‌‌‌‌​‌‌​​‌‌​‌‌‌‌​​‌‌‌‌‌‌​​​‌​​‌‌​‌​​​​​​​‌​​‌‌‌​​​​‌​​​‌‌​‌​​‌​​​​‌‌‌​​‌‌‌​‌​‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌​‌‍practices a gross misdemeanor refers from time to time to licensed gambling games.

Appellant also contends that the proof was fatally lacking in showing that the device in appellant’s possession could actually facilitate the removal of the contents of a slot machine. We do not reach these questions. The sole error assigned is refusal ‍‌‌‌‌​‌‌​​‌‌​‌‌‌‌​​‌‌‌‌‌‌​​​‌​​‌‌​‌​​​​​​​‌​​‌‌‌​​​​‌​​​‌‌​‌​​‌​​​​‌‌‌​​‌‌‌​‌​‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌​‌‍of the trial court to give defendant’s requested instruction to the jury as follows: “I instruct you to return a verdict of not guilty by reason of the fact that the State has failed to make out a prima facie case against the defendant.”

It was not error to refuse such instruction. The ‍‌‌‌‌​‌‌​​‌‌​‌‌‌‌​​‌‌‌‌‌‌​​​‌​​‌‌​‌​​​​​​​‌​​‌‌‌​​​​‌​​​‌‌​‌​​‌​​​​‌‌‌​​‌‌‌​‌​‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌​‌‍proposed instruction is contrary to the provisions of NRS 175.375: “If at any time after the evidence on either side is closed, the court deem the same insufficient to warrant a conviction, it may advise the jury to acquit the defendant. But the jury shall not be bound by such advice, nor must ‍‌‌‌‌​‌‌​​‌‌​‌‌‌‌​​‌‌‌‌‌‌​​​‌​​‌‌​‌​​​​​​​‌​​‌‌‌​​​​‌​​​‌‌​‌​​‌​​​​‌‌‌​​‌‌‌​‌​‌‌​‌‌‌‌‌‌‌‌‌‌​‌‌‌​‌‍the court for any cause prevent the *53 jury from giving a verdict, [with certain exceptions not here applicable] * * State v. Corinblit, 72 Nev. 202, 298 P.2d 470.

Affirmed.