Kovack v. State

OPINION Per Curiam: Appellant was charged by information on four counts of robbery. At the trial, prosecution introduced the testimony of witnesses who identified appellant as one of the perpetrators of the robbery. Appellant’s defense consisted of an alibi to which he testified during trial. Convicted of robbery, appellant assigns as error the failure of the trial court to give the following proposed instruction: “If, upon a fair and impartial consideration of all the evidence in the case, the jury finds that there are two reasonable theories supported by the testimony in the case, and that one of such theories is consistent with the theory that the Defendant is innocent of charges contained in the information and that the other is consistent with the guilt of the Defendant, then it is the law, and the law makes it the duty of the jury, to adopt that theory which is consistent with the innocence of the Defendant.” In view of the direct evidence in this case and there being no indication that other instructions, including those on reasonable doubt, were inadequate, appellant’s contention is without merit. Holland v. United States, 348 U.S. 121 (1954); Scott v. State, [366] 72 Nev. 89, 295 P.2d 391 (1956); Vincze v. State, 86 Nev. 546, 472 P.2d 936 (1970). The judgment of the lower court is affirmed.