McCall v. State

540 P.2d 95 (1975)

Derek Alvin McCALL, Appellant, v. The STATE of Nevada, Respondent.

No. 8200.

Supreme Court of Nevada.

September 17, 1975.

Morgan D. Harris, Public Defender, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, George E. Holt, Dist. Atty., Las Vegas, for respondent.

PER CURIAM:

Convicted of burglary, robbery, second degree kidnapping, rape, and infamous crime against nature, appellant appeals his conviction and an order denying his motion for new trial.

At trial, garments worn by appellant and prosecutrix were admitted without objection into evidence for identification purposes. During deliberations, the jury asked whether they could consider a substance on certain garments as evidence of sexual intercourse, even though it had not been pointed out at trial. The court informed counsel that it proposed to answer this question by instructing the jury: "The garments are in evidence."

Appellant's counsel not only failed to object to this instruction, but agreed to it. The failure to object or to request special instruction to the jury precludes appellate consideration. State v. Fouquette, 67 Nev. 505, 221 P.2d 404 (1950); Clark v. State, 89 Nev. 392, 513 P.2d 1224 (1973); Cook v. State, 77 Nev. 83, 359 P.2d 483 (1961).

*96 Appellant attempts to cast the jury's actions as "misconduct." In light of appellant's agreement to the instruction given by the court, we deem this contention without merit.

Affirmed.