Jackson v. State

• Decision Date: 18 March 1968
• Docket Number: No. 4932,4932
• Citation: 438 P.2d 795,84 Nev. 203
• Parties: John Robert JACKSON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 795

438 P.2d 795

84 Nev. 203

John Robert JACKSON, Appellant, v. The STATE of Nevada, Respondent.

No. 4932.

Supreme Court of Nevada.

March 18, 1968.

Rehearing Denied April 10, 1968.

Samuel B. Francovich, Reno, for appellant.

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

OPINION

ZENOFF, Justice.

John Robert Jackson was convicted for the murder in the first degree of Robert England and was sentenced to life imprisonment with the possibility of parole.

Jackson and Rebecca Jackson were married in 1956, shortly thereafter divorced, but later remarried in 1957. The couple had considerable marital problems, most of which stemmed from Jackson's drinking. There were occasional separations leading to another divorce in July 1964.

At the time of the last divorce Rebecca was employed as a waitress in a coffee shop in which England was a frequent customer. On the evening of August 7, 1964 Rebecca and England went out on a date. Jackson, who had been drinking intermittently throughout the course of that evening, called Rebecca's house to inquire if she was there. The babysitter for the Jackson's eight-year-old daughter informed him that Rebecca was not there. Later Jackson came over to the house, stated to the babysitter that he wanted to see Rebecca and the little girl. The babysitter refused him admittance because Rebecca was not there and the little girl was sleeping, so he left the house. Shortly thereafter Rebecca and England returned about 1:00 A.M. and had just driven up the the house when Jackson again drove past Rebecca's place. Seeing Rebecca and England sitting in England's pickup truck in front of the house, Jackson approached the vehicle on the driver's side and opened the door. It is not clear whether Jackson pulled England from the seat or whether England got out voluntarily, but in any event a fight ensued and Jackson was knocked to the ground. He got up, went to his auto, picked up and loaded a deer rifle taken that morning from a roommate's closet and returned pointing the weapon at England. England, saying that he didn't know what 'this was all about,' sought protection behind a telephone pole when he was shot in the back. He died two weeks later.

Rebecca witnessed the shooting, ran to the house with Jackson following and pleading for entry. Neighbors summoned the police and held Jackson at bay until they arrived. A brief scuffle preceded his arrest and handcuffing by the police. After England's death Jackson was charged with murder, a violation of NRS 200.030, tried and convicted, and this appeal follows.

1. The appeal is directed principally to Jackson's defense that because he was intoxicated, despondent and jealous his state of mind was such that he could not be guilty of the murder at all by reason of insanity, or alternatively, that he was guilty of a lesser offense, either second degree murder or voluntary manslaughter. In this state it is well-recognized that in a prosecution for murder evidence of the intoxication of the accused is relevant for the purpose of a jury determination whether the defendant lacked the capacity to deliberate and premediate required of first degree murder. Kuk v. State, 80 Nev. 291, 392 P.2d 630 (1964); King v. State, 80 Nev. 269, 392 P.2d 310 (1964); State v. Bourdlais, 70 Nev. 233, 265 P.2d 761 (1954); State v. Arellano, 68 Nev. 134, 227 P.2d 963 (1951); Ex parte Kramer, 61 Nev. 174, 122 P.2d 862 (1942); State v. Fisko, 58 Nev. 65, 70 P.2d 1113 (1937); State v. Holdaway, 56 Nev. 278, 48 P.2d 420 (1935); State v. Jukich, 49 Nev. 217, 242 P. 590 (1926); State v. Randolph, 49 Nev. 241, 242 P. 697 (1926); State v. Casey, 34 Nev. 154, 117 P. 5 (1911); State v. Johnny, 29 Nev. 203, 87 P. 3 (1906). Also State v. Thompson, 12 Nev. 140 (1877). The jury was presented considerable evidence relative to his intoxication. Further, evidence was offered to show that he was despondent over his domestic troubles with Rebecca and that he had mentioned suicide on at least one occasion.

We do not accept Jackson's plea that we should overturn our previous ruling that the right and wrong test of legal insanity, the M'Naghten rule, is the law of Nevada. Mears v. State, 83 Nev. ---, 422 P.2d 230 (1967); Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965); Kuk v. State, supra; Sollars v. State, 73 Nev. 248, 316 P.2d 917 (1957); State v. Lewis, 20 Nev. 333, 11 P. 241 (1889). Those portions of this appeal relating to the insanity question including proffered instructions thereon are denied as being contrary to the law of this state. Harris v. State, 83 Nev. ---, 432 P.2d 929 (1967).

2. The trial court refused to give two requested instructions to the jury on voluntary manslaughter. We agree with the trial court that there is no evidence in the record to justify those instructions. NRS 200.050 and 200.060 prescribe voluntary manslaughter:

NRS 200.050. '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. '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.'

The distance between the scene of the fight at the pickup truck to Jackson's car to which he walked after he was knocked to the ground by England and the time it took to go there, remove the rifle from his automobile, load and fire it, rules out the sudden irresistible impulse that makes up voluntary manslaughter. See State v. Fisko, supra; Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966); Holland v. State, 82 Nev. 191, 414 P.2d 590 (1966).

3. Other contentions of error are also without merit. When the lower court did not permit the arresting police officer to give his opinion of whether or not Jackson was intoxicated as the scene of the crime the record is not clear if the reason for the ruling was for lack of proper...