GAINES v. STATE, 96 Nev. 561 (1980)

613 P.2d 409

LEON GAINES, APPELLANT, v. THE STATE OF NEVADA, RESPONDENT.

No. 11906Supreme Court of Nevada.
June 30, 1980

Appeal from judgment of conviction, Eighth Judicial District Court, Clark County; James A. Brennan, Judge.

Morgan D. Harris, Public Defender, and Victor John Austin, Deputy Public Defender, Las Vegas, for Appellant.

Richard H. Bryan, Attorney General, Carson City; Robert J. Miller, District Attorney, and James Tufteland, Deputy District Attorney, Las Vegas, for Respondent.

Page 562

OPINION
Per Curiam:

Appellant was convicted of burglary, a felony under NRS 205.060. We need only consider appellant’s contention that the district court committed error as to an instruction on the presumption of intent for burglary. See NRS 205.065.

Over appellant’s objection, the district court gave the following instruction:

Every person who shall unlawfully break and enter or unlawfully enter any building shall be deemed to have broken and entered or entered the building with intent to commit larceny or a felony therein, unless such unlawful breaking and entering or unlawful entry shall be explained by testimony satisfactory to the Jury to have been made without criminal intent.

The challenged instruction was nearly identical to the instruction we condemned as reversible error in Hollis v. State, 96 Nev. 207, 606 P.2d 534 (1980).

Accordingly, the judgment of conviction is reversed and the case is remanded for a new trial.