647 P.2d 389 | Nev. | 1982
Lead Opinion
OPINION
By the Court,
A jury convicted Mary Frances Allen of attempted second-degree murder for shooting her boyfriend, Roger Griffey. At the time of the shooting, Mary and Roger were transcontinental truck drivers. Mary had accepted employment as Roger’s relief driver hoping to improve a two-year relationship marked by Roger’s violent outbursts of temper. One of their trips took the couple to “Boomtown,” a popular Nevada truckstop, where the incident giving rise to this case occurred.
Upon their arrival, Roger entered Boomtown’s casino and commenced to gamble. Mary protested, became distraught, and began to drink heavily. After a time, Roger decided that Mary should stop drinking and escorted her back to the truck, where he beat her severely, breaking her upper dentures. Her
Approximately four or five hours later, the record indicates Mary returned to consciousness while choking on her dentures, which had become lodged in her throat. Vomiting and crying, she unsuccessfully attempted suicide with an unloaded shotgun. After some difficulty, she loaded the gun and accidentally fired a round through the truck window. The shot aroused friends, sleeping in their truck nearby, who observed Mary’s battered face and agitated condition. Immediately thereafter, the record indicates Mary left the truck, and walked into the casino where she shot Roger at close range.
On appeal, Mary contends that it is reversible error for the district court to refuse to give to the jury her requested instruction on attempted voluntary manslaughter. We agree.
Voluntary manslaughter is defined by NRS 200.050 and NRS 200.060.
Whether the interval between the provocation and the killing is sufficient for the passions of a reasonable person to cool is not measured exclusively by any precise time. What constitutes a sufficient cooling-off period also depends upon the magnitude of the provocation and the degree to which passions are aroused. People v. Hudson, 390 N.E.2d 5 (Ill.App. 1979).
Appellant’s other claim of error has been considered and is without merit.
NRS 200.050 Voluntary manslaughter defined. In cases of voluntary manslaughter, there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing.
NRS 200.060 When killing punished as murder. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for, if there should appear to have been an interval between the assault or provocation given and the killing, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and punished as murder.
Dissenting Opinion
dissenting:
I respectfully dissent from the majority decision. In my opinion Allen did not present any evidence that would reduce her crime from attempted murder to attempted manslaughter. A jury instruction on manslaughter as a lesser included offense of murder was unnecessary, and inappropriate. Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966).
Allen’s evidence showed that the victim had struck her and knocked her unconscious. After regaining consciousness she attempted to shoot herself, loaded the shotgun and walked from the truck to the casino. She located the victim and shot him- at close range.
NRS 200.060 states:
When killing punished as murder. The killing must be the
*358 result of that sudden, violent impulse of passion supposed to be irresistible; for, if there should appear to have been an interval between the assault or provocation given and the killing, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and punished as murder.
In the instant case I would hold that the time it took Allen to load the shotgun and locate the victim precluded, as a matter of law, a finding that the attempted killing was the result of a sudden impulse of passion as required by our statute. Jackson v. State, 84 Nev. 203, 438 P.2d 795 (1968). I would sustain the district court’s decision not to instruct the jury on the law of voluntary manslaughter, and affirm the conviction.