Graves v. State

• Citation: 84 Nev. 262,439 P.2d 476
• Decision Date: 11 April 1968
• Docket Number: No. 5312,5312
• Parties: Kenneth Ronald GRAVES, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

Page 476

439 P.2d 476

84 Nev. 262

Kenneth Ronald GRAVES, Appellant, v. The STATE of Nevada, Respondent.

No. 5312.

Supreme Court of Nevada.

April 11, 1968.

Rehearing Denied May 6, 1968.

Harry E. Claiborne, Annette R. Quintana, Las Vegas, Mack Fry, Reno, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, William J. Raggio, Dist. Atty., Virgil D. Dutt, Deputy Dist. Atty., Reno, for respondent.

OPINION

BATJER, Justice.

After a remand, by this court, for a new trial, (Graves v. State, 82 Nev. 137, 413 P.2d 503), a jury convicted the appellant, Kenneth Ronald Graves of attempted first degree murder. The trial court entered a judgment finding the appellant guilty of attempted murder in the first degree and sentenced him to a prison term of not less than five years and not more than twenty years. From this judgment Graves appeals.

As his first two assignments of error, appellant contends that the indictment charging him with the crime of attempted murder of the first degree does not charge a public offense against the laws of this state and that the indictment is duplicitous because it also charges facts constituting the separate crime of assault with intent to kill.

These are the very same contentions raised by the appellant on appeal from a denial of his discharge on habeas corpus by the lower court, Graves v. Young, 82 Nev. 433, 420 P.2d 618 (1966). In that case we held that a person may be charged with attempted murder, and that assault with intent to kill may be a lesser included offense of attempted murder if there is evidence of assault.

The doctrine of the law of the case requires us to follow Graves v. Young, supra.

In the case of State v. Loveless, 62 Nev. 312, 150 P.2d 1015 (1944), this court said: '* * * it is a firmly established general rule that 'an adjudication on the first appeal is the law of the case on all subsequent appeals in which the facts are substantially the same.''

Next we turn to appellant's claim that the trial court erred when it refused to instruct the jury on the crime of attempted manslaughter.

The record is devoid of evidence to support an instruction on attempted manslaughter. The trial court properly refused such an instruction. From 1867 when this court affirmed the conviction of John Millain for the murder of Julia Bulete, (State v. Millain, 3 Nev. 409), to the recent case of Jackson v. State, 84 Nev. ---, 438 P.2d 795 (1968), this court has held that a trial court is justified in refusing to give an instruction on the crime of manslaughter ¹ if there is no evidence to support such an instruction. Accord, State v. Donovan, 10 Nev. 36 (1875); State v. Johnny, 29 Nev. 203, 87 P.3 (1906); State v. Fisco, 58 Nev. 65, 70 P.2d 1113 (1937); State v. Loveless, 62 Nev. 312, 150 P.2d 1015 (1944); State v. Varga, 66 Nev. 102, 205 P.2d 803 (1949); Holland v. State, 82 Nev. 191, 414 P.2d 590 (1966); Rogers v. State, 83 Nev. ---, 432 P.2d 331 (1967).

The presence of malice precludes an instruction on the crime of manslaughter. In this case there is a good deal of evidence that the appellant was actuated by malice in shooting Joseph Fuetsch. The circumstances of the shooting are sufficient to bring into operation the rule of NRS 200.020(2). ²

Finally, in appellant's multi-pointed assignment of error, he contends that he was denied the right to a fair and impartial trial for the following reasons: (a) That the testimony of Dr. Ernest W. Mack, as to the nature and extent of the victim's injury, was inflammatory and prejudicial.

We first turn to this point in the assignment of error. The appellant is charged with attempt to commit murder in the first degree. Complete testimony as to the nature and extent of the injury to the victim, Joseph Fuetsch, was permissible in order to enable the jury to arrive at a fair and just verdict. Whether the evidence was of such an inflammatory nature as to outweigh its probative value and preclude its admission is a question within the sound discretion of the trial court. See Commonwealth v. D'Agostino,344 Mass. 276, 182 N.E.2d 133 (1962). Here the trial court did not abuse its discretion.

There must be evidence that the wounds and resulting injury to the victim is to such a vital part of the human body, that it could lead to death, in order to support the charge of attempt to commit murder in the first degree. It is permissible to fully inform the jury, not only of the location of the wound, but of the entire nature and extent of the resulting injury.

Discussing the admissibility of medical testimony concerning the extent and degree of permanency of the injuries sustained by the victim, the court in the case of People v. Manning, 320 Ill.App. 143, 50 N.E.2d 118 (1943), said: 'The theory is that such evidence is admissible to show that the weapon used was dangerous and to show also the character of the assault. The reason for the rule would appear to be that the jury cannot know the force of the blow without knowing the effect and the effect here was not alone knocking (victim) to the ground. Likewise, with the jury looking back from the injuries, it can better determine the character of the act * * *'

Dr. Mack's testimony was material and relevant. It was elicited and given in a professional manner, and in no reasonable way could it be deemed unduly prejudicial and inflammatory toward the appellant. The testimony of Dr. Mack at the first trial of the appellant was substantially the same. In Graves v. State, supra, this court, referring to appellant's contention that Dr. Mack's testimony describing the nature and extent of the victim's injury was inflammatory and prejudicial said: 'We have considered the remaining assignments...