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95 Nev. 802

603 P.2d 283

Marshall v. State

Nevada Supreme Court

Decided November 30, 1979

Nevada Supreme Court · decided 1979-11-30

Cited by 10 later decisions — most recently September 1992

2 district · 8 state decisions

Key passage — most relied on by later courts

“1. In criminal actions, presumptions against an accused recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this section. 2. The judge shall not direct the jury to find a presumed fact against the accused. When the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge may submit the question of guilt or of the existence of the presumed fact to the jury, if, but only if, a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find guilt or the presumed fact beyond a reasonable doubt. . . . 3. Whenever the existence of a presumed fact against the accused is submitted to the jury, the judge shall give an instruction that the law declares that the jury may regard the basic facts as sufficient evidence of the presumed fact but does not require it to do so. In addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the judge shall instruct the jury that its existence must, on all the evidence, be proved beyond a reasonable doubt.”

quoted by 2 later decisions, including Thompson v. State, Brackeen v. State

““beyond a reasonable doubt that the [defendant . . . possessed two or more credit cards issued in the name or names of another person or persons, you must assume that such possession was with the knowledge that they were stolen and he intended to circulate, use, sell or transfer them with the intent to defraud, unless the [defendant raises a reasonable doubt in your minds that his possession was not with such knowledge or intent.””

quoted by 1 later decision, including Brackeen v. State

Applies NV 205 § 205.690 · NV 47 § 47.230

Relies on Ricci v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1979-11-30

View the full empirical analysis of this case →

¶1 OPINION

Per Curiam:

¶2 Artie Charles Marshall was convicted by jury of dealing in the credit cards of another. He was sentenced to five years in the Nevada State Prison. In our view the court committed reversible error when, by instruction given over objection, it directed the jury to find that Marshall’s possession of the credit cards was with the knowledge that they were stolen and that he intended to defraud. 1

¶3 Although NRS 205.690(3) creates a presumption that a person possessing two or more credit cards issued in the name or names of another person or persons is presumed to possess *804 them with the knowledge that they have been stolen and with the intent to defraud, such presumption is not conclusive. Indeed, NRS 47.230(2) commands that a judge shall not direct the jury to find a presumed fact against the accused. This command was violated by the instruction and the violation may not be deemed harmless since the erroneous instruction concerned essential elements of the offense charged. The statutory presumption of NRS 205.690(3) may be the basis for a jury instruction permitting the jury to infer guilty knowledge and intent, without violating NRS 47.230(2). Ricci v. State, 91 Nev. 373, 381, 536 P.2d 79 (1975). Language directing the jury to do so is impermissible.

¶4 Reversed and remanded.

1

¶5 The instruction:

“If you find beyond a reasonable doubt that the Defendant, ARTIE CHARLES MARSHALL, possessed two or more credit cards issued in the name or names of another person or persons, you must assume that such possession was with the knowledge that they were stolen and he intended to circulate, use, sell or transfer them with the intent to defraud, unless the Defendant raises a reasonable doubt in your minds that his possession was not with such knowledge or intent.”
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