Askew v. State

Nevada Supreme Court

Askew v. State

513 P.2d 441, 89 Nev. 338, 1973 Nev. LEXIS 518

CourtNevada Supreme Court

DecidedAugust 21, 1973

DocketNo. 6889

StatusPublished

This text of 513 P.2d 441 (Askew v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Askew v. State, 513 P.2d 441, 89 Nev. 338, 1973 Nev. LEXIS 518 (Neb. 1973).

Pincite

Opinion

OPINION

Per Curiam:

Appellant, charged with two counts of attempted murder (NRS 200.010, NRS 208.070), was convicted of two counts of battery with intent to kill (NRS 200.400(3)). He asks us to reverse the conviction because (1) the trial court refused to give the jury his requested instruction defining attempted murder and, (2) both attempted murder and battery with intent to kill are identical crimes and since different penalties¹ are provided for the offenses there is an unlawful delegation of legislative authority under Lapinski v. State, 84 Nev. 611, 446 P.2d 645 (1968).

[340]*3401. We are unable to perceive how the appellant could possibly be prejudiced by the refusal of the trial court to give his requested instruction defining attempted murder, because he was acquitted by the jury of the attempted murder charges. Therefore, we find that contention to be totally without merit. Bumper v. North Carolina, 391 U.S. 543 (1968); Pacheco v. Warden, 87 Nev. 231, 484 P.2d 1082 (1971). Cf. Miller v. West, 88 Nev. 105, 493 P.2d 1332 (1972).

2. In Lapinski we condemned a statute which permitted the prosecutor to elect whether to charge an accused with a felony or a misdemeanor. Appellant’s reliance on Lapinski is misplaced.

In order to sustain a conviction for attempted murder, “malice and premeditation must be alleged and proved.” In battery with intent to kill “there is no such requirement of allegation or proof to convict.” Graves v. Young, 82 Nev. 433, 437, 420 P.2d 618, 620 (1966). The crime of battery with intent to kill, while a lessor included offense under an attempted murder charge, may be a separate and distinct crime where malice and premeditation are absent. Furthermore, the penalty is less severe. See Graves v. Young, supra.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION

Per Curiam:

Appellant, charged with two counts of attempted murder (NRS 200.010, NRS 208.070), was convicted of two counts of battery with intent to kill (NRS 200.400(3)). He asks us to reverse the conviction because (1) the trial court refused to give the jury his requested instruction defining attempted murder and, (2) both attempted murder and battery with intent to kill are identical crimes and since different penalties¹ are provided for the offenses there is an unlawful delegation of legislative authority under Lapinski v. State, 84 Nev. 611, 446 P.2d 645 (1968).

[340]*3401. We are unable to perceive how the appellant could possibly be prejudiced by the refusal of the trial court to give his requested instruction defining attempted murder, because he was acquitted by the jury of the attempted murder charges. Therefore, we find that contention to be totally without merit. Bumper v. North Carolina, 391 U.S. 543 (1968); Pacheco v. Warden, 87 Nev. 231, 484 P.2d 1082 (1971). Cf. Miller v. West, 88 Nev. 105, 493 P.2d 1332 (1972).

2. In Lapinski we condemned a statute which permitted the prosecutor to elect whether to charge an accused with a felony or a misdemeanor. Appellant’s reliance on Lapinski is misplaced.

In order to sustain a conviction for attempted murder, “malice and premeditation must be alleged and proved.” In battery with intent to kill “there is no such requirement of allegation or proof to convict.” Graves v. Young, 82 Nev. 433, 437, 420 P.2d 618, 620 (1966). The crime of battery with intent to kill, while a lessor included offense under an attempted murder charge, may be a separate and distinct crime where malice and premeditation are absent. Furthermore, the penalty is less severe. See Graves v. Young, supra.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

513 P.2d 441, 89 Nev. 338, 1973 Nev. LEXIS 518, Counsel Stack Legal Research, https://law.counselstack.com/opinion/askew-v-state-nev-1973.

Opinion

Related

Cite This Page — Counsel Stack