*1 NEVADA, Aрpellant, SHERIFF, COUNTY, CLARK Respondent. MORRIS, DANA LINDSAY No. 12459
March Miller, Attorney, Tufteland, James N. J. District Robert County, Appellant. Attorney, for Deputy Clark District Harris, Neal, Vegas; Morgan Public D. Gerald F. Las Larsen, Defender, Defender, D. Assistant Public Robert Defender, Gonzales, County, for Deputy Clark Xavier Public Respondent.
OPINION
By Court, J.: Steffen, granting order appeal the district court’s results from This corpus petition respondent’s pretrial for writ habeas respondent. that the district court discharging We conclude granting writ on law must affirm the erred as to the but insufficiency grounds of indictment. following alleged respect appeal, the facts are 1, 1979, 17-year Timothy old deemed relevant. On March quantity ingesting a lethal Slotemaker died as a result of hydrate).1 (a The con of chloral trichloral ethanol derivative tablets, purchased was in the form of trolled substance (here Lindsay respondent, Dana Morris decedent from the During “defendant”). early hours of that afternoon inafter Slotemaker, date, accompanied companions, twо fateful purchasing purpose for the went to defendant’s trailer drugs. he had decedent some Defendant informed pur pentathol downers” for sale. Slotemaker “sodium *3 ingested presence pills in with two which he defendant’s chased help down” by “wash the furnished defendant to some beer pill which he con purchased one more pills. Decedent then leaving were the as the three outside defendant’s trailer sumed later, Slotemaker and premises. Approximately hour one-half trailеr. This companions returned to defendant’s the one of time, up tablets from the to ten additional obtained Slotemaker pres again defendant, consumed the which were several of evening as a died later that the Slotemaker ence of defendant. drug result of the overdose. Jury 10, 1979, County indicted
On March the Clark Grand Timothy Slotemaker, for murder of for two the defendant substance, giving away and for one a controlled counts count of sale of a controlled substance. corpus writ petition a for of habeas on the
Defendant filed charging portion defendant of the indictment basis sufficiently specific. open with Defendant’s murder was court, by by petition granted was the lower affirmed this charge. granted was leave to refile the murder Court. The state 1979, complaint charging 31, July state filed a On 6, 1979, Thereafter, September an on defendant with murder. accusing against him of the filed defendant indictment was 1A Schedule IV controlled substance under NRS 453.196. 200.030, 200.010, (Felony
crime of “MURDER 200.070).” defendant, charged This reсent indictment that the on most 1979, feloniously
March “did then and there and without law, authority kill and murder TIMOTHY A. SLOTE- MAKER, being, in a the commission of an unlawful .human act, which, naturally consequences ih its tended to being life prosecution of a human and/or was committed manner, following by giving intent in to-wit: away SLOTEMAKER, or to the said TIMOTHY A. a quantity lethal of a controlled substance to-wit: CHLORAL HYDRATE, the said TIMOTHY A. SLOTEMAKER there- HYDRATE, ingesting quantity after said lethal of CHLORAL ingestion of which caused the said A. TIMOTHY poisoning SLOTEMAKER to die of CHLORAL HYDRATE resulting from overdose of CHLORAL HYDRATE which proximate was a direct and сause unlawful acts of defendant DANA LINDSAY MORRIS here- described inabove.” responded part filing
The by to this indictment in petition a corpus for writ of with habeas this Court. We ruled petition by court, that the be heard the district and the latter granted corpus court discharged writ of habeas defendant, holding question that the of whether “an overdose by in death sale should murder . . . should legislature by be decided and not the court .” . . . appeal This followed. primary whether, appeal issue before us on under the fact-sрecific case, charge circumstances of of second authorized Nevada under law. The resolution product of the 200.030, meaning issue is of the combined of NRS reads, and NRS perti- 200.070. The former statute part, nent as follows:
1. of the first is murder Murder which is: poison, wait, (a) Perpetrated lying means of *4 willful, torture, by any pre- other kind or of deliberate and killing; meditated
(b) perpetration attempted perpe- in the or Committed assault, arson, kidnapping, robbery, tration of sexual glary bur- age child under оr sexual molestation of a years; or
(c) prevent Committed to avoid the lawful or arrest any by peace any person escape to effect the officer or person legal custody. subsection, any sexual
As used molestation is act, willful and lewd or lascivious other than acts consti- assault, upon body, tuting the crime of sexual or with the thereof, age any part or or member of child under to, arousing, appealing grat- years, with the intent of or lust, perpetrator ifying passions or desires of the sexual or of the child. degree
2. Murder of the second is all other kinds of murder. It is noted that the clearly specifies above statute those acts
which are in category of murder degree. in the first (2) subsection degree. all other kinds of murder are of the second argues subsection, state that the latter read in con- junction 200.070, justifies with NRS charge of murder against respondent. provides: NRS 200.070 Involuntary manslaugther shall killing consist in the being, any human do, without intent so to in the commis- act, sion of an unlawful or a lawful probably act which might produce consequence such a manner; in an unlawful but where involuntary killing such happen shall in the act, which, in its conse- unlawful quences, naturally destroy tends to a human life of being, or is prosecution committed in the aof intent, the shall adjudged be deemed and to be offense (Emphasis supplied.)2 murder. charge murder was respondent on The indictment of provision, the state quoted above in the terms couched urging culpability (1) both) grounds: (or of two upon either аct, unlawful of an during the “commission homicide occurred life of naturally tends to which, consequences, in its killing was “committed being,” (2) the and/or a human intent.” prosecution of a felonious 200.070, when whether NRS question of to the We turn first 200.030, charge of sec- permits a conjunction with NRS
read
Because the
felony-murder rule.
degree murder under
ond
specified
within those
come
do not
actions
200.030,
state
degree murder under
areas of first
argues
criminally responsible under a sec-
defendant is
that the
theory.
felоny-murder
degree
ond
felony-murder
rule
long recognized the
has
This Court
simply
felony-murder rule
“The
murder.
context of first
homicide,
perpetrating while
any
committed
is that
stated
Payne State,
felony,
murder.”
attempting is first
designated
applicable
2NRS
is the
statute
in effect in
as
200.070
Opinion.
quoted in this
*5
114
denied,
505,
503,
(1965), cert.
Nev. P.2d (1967). Payne, Court said: In felony-murder to rule was original purpose of the by accidentally killing negligently or deter felons from killings strictly responsible are
holding for the them attempted felony or one. [Citations the result jurisdictions, majority a the of such homicide In omitted.] acquires necessity of degree without the first murder status The heinous proving premeditation and deliberation. thought justify to the is premeditation omission character of the requirements and deliberation. of of the the Payne, a causal connection between commis- direct offense, underlying and the homicide of sion the imposition at required of the rule. Id. 506. also for the appears to no Nevada cases which address There degree felony-murder rule context of second murder.3 in the sup- California, however, adopted persuasive position has a felony-murder concept degree. porting the second of Cline, 1969), People Cal.Rptr. (Ct.App. 459 defend- v. decedent, ant, visiting of the indicated while at the residence bringing phenobarbital After the tab- that he some tablets. had decedent, request lets into the house at the of tablets, gave then presence a number of these and the decedent defendant, a the decedent consumed substantial approximately thirty period min- number them within a lapsed evening, utes.4 the decedent into unconscious- Later subsequently as died a result of a central nervous ness system depression by intoxication.
caused
barbituate
kill
as
“Murder is the unlawful
3NRS 200.010 defines murder
follows:
aforethought,
express
implied
ing
being,
with malice
either
of human
implied
200.020(2) provides:
when
shall be
no consid
...
.”
“Malice
killing
provocation appears,
or when all the circumstances
erable
malignant
“the
This Court has held that
show an abandoned and
presence
heart.”
directly
guilt
question of
which
on the
a malice is a
fact
bears
charged
upon
. . .
of the crime
or innocence of defendant
question
trier of
at the
is a
to be determined
fact
trial
[I]t
741, 744,
Sheriff,
(1970).
Nev.
sion of a However, degree murder.” constitutes at least second felony inherently where the is not there can be no deterrent anticipate dangerous, potential felon will not sincе the any injury might solely or death arise from the fact that he felony. will commit [Citations omitted.] “inherently Only in themselves dan- such felonies as are support application gerous to human life” can felony-murder doctrine. the defend- at The California court then affirmed
Id.
461-462.
by holding
degree
that the act
ant’s second
murder conviction
drug
illegally furnishing
dangerous
a restricted
to another is
“inherently dangerous
Id. at 463.
to human life.”6
felony-murder
has been followed
degree
rule
The second
Poindexter,
See,
(Cal.
Pеople
e.g.,
v.
cases.
other
upheld
degree
was
murder conviction
1958), where a second
heroin,
supplied minor with
against
who
a defendant
drug.
the use of that
having
an overdose of
minor
died later of
of a
The
held: “Death
court
pf
administering
narcotics
felony
furnishing,
such as
Code,
degree. Pen.
of the second
a minor constitutes murder
196, 205,
Powell,
189;
fied as first (Pen. are murder of the 189). second § at Id. 461. (the interesting phenobarbital non-narcotic note that both 6It case) hydrate (the drug present Cline) are controlled and chloral drugs as Schedule IV under NRS in Nevada and classified substances 453.196. rule, felony-murder any homi- law the common any felony perpetration consti- committed cide murder .... tuted expressly limited felony-first degree rule is murder contends .... The defendant to three felonies Statute types felonies . . . mani- of three that the enumeration felony-murder rule legislative abolish the intent to fests disagree. We all other felonies. as to long felony-second degree murder rule has been rec- A ognized in Delaware .... [Citations omitted.] Assembly intended to that. . . the General We conclude rule; felony-first degree scope prescribe the felony-second murder was long-standing that the abrogated by the Statute. as follows: a homicide rule has been stated The California the commission of a a direct causal result of that is *7 (except enu- inherently dangerous to human life felonies statute) degree murder constitutes at in the first merated degree murder. least seсond [Citations omitted.] supported judgment, California rule is In our reason, logic, history, sense. and common Court, therefore, felony- opinion that the It of the degree be limited murder rule of this State should second proximately perpetration or caused to homicides attempted perpetration are, by felonies which nature or of life, circumstances, dangerous foreseeably to human statutory. law or felonies be common whether such assertedly attention to cases whiсh directs our The defendant Mauldin, (Kan. P.2d 124 support position. In v. his State selling purchaser of heroin to a 1974), held that the the court body injected and died as subsequently the heroin into his who felony- thereof, application of the did not invoke the a result degree murder. In so hold- murder rule so as to constitute first “time” great importance on factors of ing, placed the court (unlike the California under circumstances and “causation” with the assistance of was not taken cases) where the ovеrdose only determined presence. The court not in the seller nor his the commission of connection between there was no causal felony any death, resulting further believed that but and the felony-murder a function for expansion rule was of the such judiciary. at 126-127. legislature, Id. Dixon, 1973), (Ariz. Similarly, in State v. selling purchaser, heroin to a who act of court held that the sole seller) presence without assistance of (out of and injected body and died as a result thereof did the heroin his into holding, degree murder. In so the court second not constitute said: legislature, considering whether to enact
The after rule, limited it to law murder homicides common arson, rape, robbery, occurring during the commission burglary, that all other mayhem. or It then added kinds degree. provide did not are of It the second during all unnamed felonies were committed homicides degree language We think that used murders. second advisedly. was used places great significance upon The also at 625. defendant
Id. Co., holding Catania v. Farm Life Ins. this Court’s in State (1979). 598 P.2d Defendant’s reliance is mis- Nev. placed. holding nothing did more than
The Court’s
construe
policy
of an
in the context
an unin-
the terms
insurance
self-injected
Furthermore,
heroin.
tended death
Mauldin,
Dixon,
supra,
supra,
in
v.
both State
and State
Nevada,
expressly providing,
in
were no
as
there
statutes
killing
“involuntary
occurs
of an
when an
act,
consequences, naturally
which,
in its
tends
unlawful
being,
prose-
destroy the life
committed
of human
intent,
murder.”
the offense is
cution of
law,
Nevada
chloral
unauthorized
hydrate
felony.7
crime is
tablets is a
undoubt
danger confronting per
edly
with the
commensurate
drugs
If the
who take such
from unauthorized sources.
sons
sold,
allegations,
supports
with
evidence
the state’s
intent,
drugs
young
dangerous
Slotemaker. Addi
felonious
tionally,
process
actually
participated in the
the defendant
overdosing
did the defendant
Cline.8
the decedent as
*8
statutory
principle of
It is a fundamental
construction that
possible,
give
all
should
construed so
where at
statutes
be
as
Wаrden,
634,
legislative
White
intent.
v.
96 Nev.
effect to
O’Donnell,
756,
(1980);
v.
91 Nev.
micrograms per is about to twelve times milliliter ten the amount [which] ordinary hydrate expect[ed] . . dose when uses chloral . an one as presencе sleeping pill.” in the The actual number of tablets consumed would, course, question be a for the trier of fact.
Servs.,
Here,
(1968).
apparent
87 Nev.
We are not unmindful prose- for untoward resulting cutions emphasize from this decision. We therefore holding today that our is limited to the narrow confines of this perceive case wherein we an immediate and direct causal rela- tionship defendant, proved, between the actions of the if Further, the minor’s demise. People line with the decision Satshell, (Cal. 1971), v. felony we hold that a support application which ony would оf this second fel- rule, murder inherently would have to be one which is dan- gerous when viewed in the abstract. There can be no deterrent degree felony value in a second rule unless the inherently dangerous necessary it potential since is that a felon possibility injury foresees the of- death or from the felony. Cline, People commission of the supra. action, present alleged if the proved facts as are degree felony second murder instruction consistent with this opinion may appropriately applied be to defendant’s conduct. First, it must be established the evidence that the unau- ingestion hydrate thorized quantities sale and of chloral inherently dangerous abstract, i.e., involved are in without specific Second, reference to the victim. there must an imme- relationship diate and causal between the conduct minor, the defendant and the death By Slotemaker. term “immediate” we mean without the intervention of some
119 Third, agency. relationship must the other source or causal drugs beyond to an the unlawful sale of the involvement extend dosage ingestion by or omission lethal by by This element of rule would be satisfied decedent. selling drugs helping providing or and the unlawful by unlawfully recipient drugs ingest a dose or to lethal drugs being present during the dispensing or and Thus, more, consumption rule of a lethal dose. absent involving only apply a a sale a sale would not to situation or dosage presence. ingested in with a nonlethal Although may the defendant’s cogently argued of be thаt an unlawful sale it se, appro- drugs inherently dangerous per and therefore an charge occurs, priate death we leave for a of murder when basis legislature.9 such determination to the 10] [Headnote holding portion that of NRS 200.070 respect with to Our equal applies force to the dealing with with felonious intent words, in the In other provision the statute. unlawful act resulting substances unlawful sale of controlled context death, in accordance with prove its case the state must degreе felony murder guidelines applicable the second same drug quantity must be particular nature and rule. abstract, there inherently dangerous to be shown relationship between the sale be an immediate and causal must hereinbefore of the victim as dispensing and the death defin ed.10 argument that defendant’s
We now consider must rule of violates the approach used in the indictment “and/or” Court, Nev. Simpson this Court established 654, District Simpson, that an this Court held (1972). In P.2d nothing alleges “when it murder is not sufficient indictment for cоm concerning which the crime was means whatever upon “the threats Simpson was founded mitted.” Id. at 655. necessarily pose” process indefinite indictments due entitling the nature and cause “to informed of be an accused Court said: Id. at This the accusation.” 655-656. jurisdiction, 9In at least one homicides from the unlawful sale made, by legislative enactment, capi
of controlled have been substances offense. Rev. § tal Ariz. Stat. Ann. 13-1105. suggest non- provision would language of the statute of this 10The required provided may defendant’s that is conduct all “naturally a human the life of tends to “unlawful” conduct being.” underlying felony (the present sale involves an case Because the applicability drug), amount question of to behavior the Schedule IV ing not be addressed. need to less than provided 173.075(1) expressly that the “indictment *10 plain,
or the shall be a concise and definite information constituting written statement of the essential facts charged.” 173.075(2) NRS indicates this should offense by either include the means which offense was accom- plished are unknown. or show means [Footnote omitted.] recognizes proper NRS likewise that a 179.370 should, among things, ref- indictment other contain some erence means. to holding concerning necessary view of our elements of
proof subject prosecution provisions in a criminal under the 200.070, setting case, fact-specific appar of this it is language fatally ent that the non-statutory language of the indictment is defective. The indictment fails to reference regarding presеnce during facts defendant’s conduct or dece ingestion dent’s of a lethal dose of controlled substance. Consequently, sufficiently apprise the indictment fails to prepared defendant of what he be to must meet. Russell v. 749, States, (1962).11 United 369 U.S. against sufficiency Since we indictment, have ruled of the we however, by so, must affirm the action taken the district court. We do prejudice right without to the state’s to seek a new by proceed way indictment or to aof criminal information in accordance opinion. with this J., J., C. and concur.
Manoukian, Mowbray, J., J., agrees, with whom concur- Springer, Gunderson, ring: opinion I majority concur with the except insofar as its purports dicta to create a new styled, crime this state to be Degree Felony “Second judge Murder.” The properly trial held that new by legislature crimes should be created by the court. argument In oral attorney agreed the state’s that it was not necessary proposed to create new crime and that creation of resрect, Simpson adopted following 11Inthis this Court in formula tion of the law: statute, Whether at common law or under the accusation must include a description particular characterization of the crime and such alleged act properly to have been committed the accused as will enable him against accusation, description to defend and the of the offense must sufficiently complete be right full and to accord to the accused his constitutional process tо due of law. degree felony necessary a “second murder” was not for effec- prosecution agree tive of these kinds of cases.1 I with the attorney suggest inappropriate state’s that it is and unnec- conjure essary up brand new this crime. prosecuted for second
The defendant in this case can present law. A second murder con- murder under killing may when it occurs result from an unintentional viction act which its nature tends in the commission of an unlawful (“[Wjhere involuntary destroy 200.070 human life. NRS which, aсt, killing of an unlawful occurs consequences, naturally human its tends to the life of a intent, being, prosecution a felonious or is committed in the Hall, 213, 239, murder.”); 54 Nev. the offense is State liability (1932). Criminal for murder can attach P.2d of furnish- case if it is established that the unlawful act case, was, ing drugs of this an act under the circumstances *11 tendency life. Conse- which had a natural to human argument, quently, the state at oral there is no as conceded need for the accretion of a new crime. majority “potential аgree with the that there is a for unto- I decision,” prosecutions and believe
ward from danger presents an additional reason for this court that this legislative new to the branch of leave the creation of crimes government. theory, felony you need a don’t 1THE COURT: this case you?
do these facts I don’t think so. THE COUNSEL FOR STATE: you sug- receding your position? you Are Are THE COURT: adopt yourself, agree gesting you, that this court should do not respect cases? murder rule with second say sitting if I were I have to THE STATE: COUNSEL FOR are, you not do so. where one of I would that we should have reached conclusion THE COURT: You theory, reject correct? such I think so. FOR THE STATE: COUNSEL