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Barger v. State

407 P.2d 584, 81 Nev. 548, 1965 Nev. LEXIS 269
Nevada Supreme Court·Decided November 9, 1965·No. 4896·Published·Cited by 24 cases

Opinion

OPINION

By the Court,

Thompson, J.:

Barger was convicted of first degree burglary following a jury trial in the district court at Las Vegas, Nevada. On this appeal his main claim of error is that the lower court refused to instruct the jury about his only defense — entrapment—even though he had testified, explaining in detail how a police officer induced him to encourage and assist another in burglarizing Al’s Cycle Shop. Some of his testimony is quoted in the footnote. 1 The jury had the right to believe it or reject it. *550 If believed, a verdict of not guilty might have been returned, for his story could establish the defense of entrapment. Yet such possible result was effectively precluded by the court’s refusal to instruct on that doctrine. We may not presume that the jurors were aware of that defense when they were not told about it. The prejudice flowing from this mistake is manifest.

Citation of authority is no longer necessary for the proposition that a defendant in a criminal case is *551 entitled to have the court instruct the jury about his theory of defense, if there is evidence to support it. The state acknowledges the rule, but suggests that Barger’s testimony was a fantasy not worthy of belief and cannot qualify as “some” evidence, “substantial” evidence or, indeed, even as “any” evidence; and reminds us that three credible prosecution witnesses testified, in substance, that Barger’s story was false. Authority is not offered in support of that suggestion. There is none —at least v/e have been unable to find any — and if, perchance, we did discover such a case, we would not *552 adhere to its doctrine. We hold that a defendant in a criminal case is entitled to- have the jury instructed on his theory of the case as disclosed by the evidence, no matter how weak or incredible that evidence may appear to be. People v. Carmen, 228 P.2d 281 (Cal.1951). The jury by its verdict will decide whether the truth rests with the state or the defense.

Though the state intimates otherwise, our holding today is not contra to Wyatt v. State, 77 Nev. 490, 367 P.2d 104. In that case the defendant did not testify, nor was evidence offered on his behalf. Upon analysis, the state’s evidence did not show entrapment. Therefore, the trial court refused to instruct on that doctrine, and we affirmed on appeal. Here Barger did take the stand. His tale, if believed, could establish the defense of entrapment. The difference between the two cases is glaringly apparent.

Other assignments of error are made. However, we will not discuss them as we do not anticipate recurrence of the questioned matters when this case is tried again.

During trial Barger was represented by court appointed counsel. NRS 174.120. That counsel chose to appeal, and is entitled to recover the enlarged compensation provided for by NRS 7.260(4). He associated co-counsel on appeal, without obtaining a court order of appointment. We direct the lower court to give each counsel for Barger the certificate specified in NRS 7.260(3). Carter v. State, 79 Nev. 89, 378 P.2d 876.

Reversed and remanded for new trial.

Badt, J., and Zenoff, D. J., concur.

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Barger v. State, 407 P.2d 584, 81 Nev. 548, 1965 Nev. LEXIS 269 (Neb. 1965).

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