Langley v. State

• Decision Date: 29 April 1968
• Docket Number: No. 5375,5375
• Parties: John William LANGLEY, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 986

439 P.2d 986

84 Nev. 295

John William LANGLEY, Appellant, v. The STATE of Nevada, Respondent.

No. 5375.

Supreme Court of Nevada.

April 29, 1968.

Richard H. Bryan, Public Defender and Robert N. Peccole, Deputy Public Defender, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, George E. Franklin, Jr., Dist. Atty., Earl P. Gripentrog, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

THOMPSON, Chief Justice.

We are requested to annul a conviction of attempted first degree murder for the reason that the indictment did not allege 'premeditation.' The sufficiency of the evidence to support the conviction is not challenged. The appellant has not demonstrated, to any degree, that the omission of the word 'premeditation' resulted in a miscarriage of justice or actually prejudiced him in respect to a substantial right. N.R.S. 169.110; N.R.S. 173.320. ¹ Accordingly, the omission, if error at all, is harmless, and for this reason we could properly decline to further discuss the point. However, since this claim of error rests upon language contained in a recent opinion of ours (Graves v. Young, 82 Nev. 433, 420 P.2d 618 (1966)), we think it best to decide the matter.

We wrote in Graves, supra: Also there is a distinction in the factual allegations which must be made and proved in attempted murder and assault with intent to kill. In the former, malice and premeditation must be alleged and proved. In the latter, there is no such requirement of allegation or proof to convict.' Id. at 437, 420 P.2d at 620. That language was used to differentiate between two crimes. It was not intended to delineate the sole method of charging attempted murder. Words conveying the same meaning are sufficient. Although the indictment in this case did not use the precise word 'premeditation,' it used other words carrying the same connotation. It alleged that the defendant did 'wilfully, unlawfully, feloniously and with malice aforethought, attempt to kill and murder * * *.' The dictionary states that wilful means intentional, and deliberate means intentional and premeditated. Webster's New International Dictionary, 2d Ed. Indeed, common sense demands that the words 'wilful' and 'premeditate' are not so remote in essential meaning that the use of one without the other would leave a defendant unapprised of the charge against him, or render him unable to prepare a defense thereto. The present indictment satisfies the intendment of the Graves decision.

Other errors are claimed to have occurred before and during trial. The appellant seeks to fault the trial court for declining his request for a psychiatric examination before taking his plea to the indictment. The record shows only a request for such examination. Nothing was presented to the court at that time to raise doubt as to sanity or competency to stand trial. N.R.S. 178.405. In these circumstances the court acted within the permissible limits of its discretion. Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966); see also Peoples v. State, 83 Nev. 115, 423 P.2d 883 (1967); cf. Krause v. Fogliani, 82 Nev. 459, 421 P.2d 949 (1966).

During trial photographs of the scene of the crime, the weapon, and the victim were received into evidence over objection that they would inflame and provoke passion in the minds and hearts of the jurors. The photos apparently were accurate portrayals. Since the purpose of trial is to ascertain and disclose the truth we should not declare inadmissible evidence which is relevant to that purpose and the issues simply because...