Cooper v. State

Nevada Supreme Court

Cooper v. State

587 P.2d 1318, 94 Nev. 744, 1978 Nev. LEXIS 676

CourtNevada Supreme Court

DecidedDecember 20, 1978

DocketNo. 10235

StatusPublished

Cited by3 cases

This text of 587 P.2d 1318 (Cooper 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

Cooper v. State, 587 P.2d 1318, 94 Nev. 744, 1978 Nev. LEXIS 676 (Neb. 1978).

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Opinion

OPINION

Per Curiam:

Charles Arthur Cooper stands convicted of use of a deadly weapon in the commission of a crime, attempted murder and assault with a deadly weapon, stemming from the December 2, 1976 robbery of the El Burrito Cafe on Fremont Street, Las Vegas. Cooper appeals, claiming the evidence was insufficient [745]*745to support a finding of the specific intent required for a conviction of attempted murder. This contention is meritless.

While running in an attempt to escape with money taken from the cafe, appellant twice turned and fired gunshots in the direction of the victim, who was pursuing him. The first shot was from a distance of about twenty feet; the second, from twenty-five to thirty-five feet. Appellant had a straight clear shot at the victim, who heard a “bam,” and heard a bullet whiz by him.

Appellant concedes these facts establish an overt act, but claims specific intent to kill cannot be inferred from facts constituting an overt act, but must be proved by evidence of facts other than those of the overt act. He predicates this contention on Graves v. State, 82 Nev. 137, 413 P.2d 503 (1966).

In Graves, we explained that when a defendant is charged with attempted murder, an instruction on general intent is improper because, unlike a murder case, no homicide has occurred and therefore no foundation exists from which to presume the accused intended the natural and probable consequences of his act. Although Graves may be read to prohibit presuming the specific intent required for attempted murder, Graves did not, as appellant claims, prohibit the jury from drawing reasonable inferences of specific intent from facts proved — though some facts also establish an overt act by the defendant. The law directs that a “presumption” be raised, while an “inference” typically is merely permissible.

From the facts of this case, the jury could reasonably infer that defendant specifically intended to kill the victim.

Affirmed.

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OPINION

Per Curiam:

Charles Arthur Cooper stands convicted of use of a deadly weapon in the commission of a crime, attempted murder and assault with a deadly weapon, stemming from the December 2, 1976 robbery of the El Burrito Cafe on Fremont Street, Las Vegas. Cooper appeals, claiming the evidence was insufficient [745]*745to support a finding of the specific intent required for a conviction of attempted murder. This contention is meritless.

While running in an attempt to escape with money taken from the cafe, appellant twice turned and fired gunshots in the direction of the victim, who was pursuing him. The first shot was from a distance of about twenty feet; the second, from twenty-five to thirty-five feet. Appellant had a straight clear shot at the victim, who heard a “bam,” and heard a bullet whiz by him.

Appellant concedes these facts establish an overt act, but claims specific intent to kill cannot be inferred from facts constituting an overt act, but must be proved by evidence of facts other than those of the overt act. He predicates this contention on Graves v. State, 82 Nev. 137, 413 P.2d 503 (1966).

In Graves, we explained that when a defendant is charged with attempted murder, an instruction on general intent is improper because, unlike a murder case, no homicide has occurred and therefore no foundation exists from which to presume the accused intended the natural and probable consequences of his act. Although Graves may be read to prohibit presuming the specific intent required for attempted murder, Graves did not, as appellant claims, prohibit the jury from drawing reasonable inferences of specific intent from facts proved — though some facts also establish an overt act by the defendant. The law directs that a “presumption” be raised, while an “inference” typically is merely permissible.

From the facts of this case, the jury could reasonably infer that defendant specifically intended to kill the victim.

Affirmed.

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Bluebook (online)

587 P.2d 1318, 94 Nev. 744, 1978 Nev. LEXIS 676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-state-nev-1978.

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