concurring:
I concur only in the result.
It is my opinion that this appeal should not be entertained at all. On his appeal after the trial Nall could have raised the issue that he now asserts to the court because Lapinski v. State, 84 Nev. 611, 446 P.2d 645 (1968), was in existence at the time of appeal. He failed to request an appropriate instruction. Such failure precludes consideration of the matter on direct appeal, Mears v. State, 83 Nev. 3, 10, 422 P.2d 230 (1967); Peoples v. State, 83 Nev. 115, 117, 423 P.2d 883 (1967); State v. Carcerano, 390 P.2d 923, 930 (Ore. 1964); Cohen v. United States, 366 F.2d 363, 368 (9th Cir. 1966), or even in a post-conviction proceeding. North v. Cupp, 461 P.2d 271 (Ore. 1969).
Recently, in Rogers v. Warden, 86 Nev. 359, 468 P.2d 993 (1970), we refused to consider a second post-conviction application dealing with issues which should have been raised in the first application. The court quoted approvingly from Tiller v. Warden, 229 A.2d 600, 603-604 (Md.App. 1967), which reasoned that a court should only consider issues not raised on direct appeal or in the first post-conviction application upon a showing that special circumstances accounted for *492the petitioner’s failure to do so. Other jurisdictions with similar post-conviction procedure acts have also adopted the proposition that a court will consider an issue waived if not raised on direct appeal unless there is a reasonable basis for petitioner’s failure to do so. Bias v. Cupp, 462 P.2d 684 (Ore.App. 1969); People v. McCracken, 251 N.E.2d 212 (Ill. 1969).
In this case we should declare the issue waived as not having been properly raised on appeal and no reasonable explanation offered for petitioner’s failure to allege such a claim. Hadder v. Warden, 256 A.2d 549 (Md.App. 1969); Bias v. Cupp, supra; People v. McCracken, supra.
We should heed the clamor that “something should be done” about the crowded court calendars and cease the practice of allowing repeated appeals over and over again from confined litigants who have nothing else to do but pester the judicial process for release on grounds that in most instances are imaginary. Yet, so long as petitions are filed courts must consider them. Were we to stick to the policy that all legal issues must be raised at one time or be considered waived, absent special circumstances, the time wasted on those could be directed to other pending cases.