Payne v. State, 4898

• Decision Date: 25 October 1965
• Docket Number: No. 4898,4898
• Citation: 406 P.2d 922,81 Nev. 503
• Court: Nevada Supreme Court
• Parties: Joe Allen PAYNE, Appellant, v. The STATE of Nevada, Respondent.

Page 922

406 P.2d 922

81 Nev. 503

Joe Allen PAYNE, Appellant, v. The STATE of Nevada, Respondent.

No. 4898.

Supreme Court of Nevada.

Oct. 25, 1965.

Dorsey & Harrington, Las Vegas, for appellant.

Harvey Dickerson, Atty. Gen., Carson City, Edward G. Marshall, Dist. Atty., and Lois N. Bargmann, Deputy Dist. Atty., Clark County, Las Vegas, for respondent.

ZENOFF, District Judge.

This is an appeal from a conviction of first degree murder. Judgment was entered on November 5, 1964, and the defendant was sentenced to life in prison without possibility of parole. He assigns as prejudicial error the following:

1. That the trial court erroneously instructed the jury on the felony-murder doctrine since, under the facts disclosed, that doctrine would not apply as the attempted felony (robbery in this instance) was terminated and the killing took place while the defendant was in the act of escaping.

2. That the trial court erred by instructing the jury as to the elements of first degree murder requiring a premeditated and deliberate killing.

On December 1, 1963, Kuk Gin Roe and his wife, Kum Ja Roe, went to the Western Union Telegraph Office in Las Vegas to wire the sum of $150 to California. Kuk Gin Roe had given his wife the money to hold. As she was standing there, the defendant, who had been waiting in the lobby of the Western Union Office, jumped at Mrs. Roe and grabbed the money out of her hand. She grabbed it back and the defendant took it again and threw Mrs. Roe to the floor. A struggle ensued in which her husband joined Mrs. Roe. It started inside the Western Union Office but continued out the door and in front of the building. At some point during this struggle, the defendant used a knife and stabbed the deceased twice, killing him. Thereafter, the defendant fled the scene and was later apprehended, at which time the police found in his possession a small part of a $100 bill that had been taken from Mrs. Roe. The other part of the bill and the remainder of the $150 which defendant had attempted to steal, had been retrieved by Mrs. Roe, but it is not clear at what point in the struggle with defendant she accomplished this.

1. Appellant contends that his attempt to commit the robbery had been interrupted and was terminated and that he was in the act of escape when the killing occurred. This, he claims, takes him outside the scope of the felony-murder rule and also beyond the scope of premeditation and deliberation. We do not agree.

The felony-murder rule simply stated is that any homicide, committed while perpetrating or attempting a felony, is first degree murder. This doctrine is contained in NRS 200.030 which defines degrees of murder.

'All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery or burglary * * * shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree.' (Emphasis added.)

NRS 200.380 defines robbery. ¹

The original purpose of the felonymurder rule was to deter felons from killing negligently or accidentally by holding them strictly responsible for the killings that are the result of a felony or an attempted one. People v. Washington, 44 Cal.Rptr. 442, 402 P.2d 130 (1965). In the majority of jurisdictions, such a homicide acquires first degree murder status without the necessity of proving premeditation and deliberation. The heinous character of the felony is thought to justify the omission of the requirements of premeditation and deliberation. Faced with the problem of determining when the underlying felony terminated for the purpose of applying the felony-murder doctrine, the courts have generally spoken in terms of the res gestae of the crime.

The point at which the crime was 'perpetrated' or 'attempted' has been subject to varying degrees and wide latitude. The great weight of authority appears to apply the principle of causation; that is to say, 'Was there a break in the chain of events between the initial crime and the homicide?' Commonwealth v. Kelly, 337 Pa. 171, 10 A.2d 431 (1940). Such causation requires that the killing be linked to or part of the series of incidents so as to be one continuous transaction, thereby bringing it within the statutory felony-murder theory. Bizup v. People, 150 Colo. 214, 371 P.2d 786 (1962). The res gestae of the crime begins at the point where an indictable attempt is reached and ends where the chain of events between the attempted crime or completed felony is broken, with that question usually being a fact determination for the jury. (See discussion in 51 Dick.L.Rev. 12 (1946)).

Our own court has subscribed to this rule: 'When the homicide is within the res gestae of the initial crime, and is an emanation thereof, it is committed in the perpetration of that crime in the statutory sense.' State v. Fouquette, 67 Nev. 505, 528, 221 P.2d 404, 416 (1950).

'The res gestae embraces not only the actual facts of the transaction and the circumstances surrounding it, but the matters immediately antecedent to and having a direct causal connection with it, as well as acts immediately following it and so closely connected with it as to form in reality a part of the occurrence.' Id., at 529, 221 P.2d at 417.

For example, our court has held that where the defendant robbed a service station attendant in California, kidnapped him, and drove him to Sparks where he killed his victim by shooting him in the back of the head, the homicide took place during the perpetration of the robbery. Archibald v. State, 77 Nev. 301, 362 P.2d 721 (1961). In State v. Williams, 28 Nev. 395, 82 P. 353 (1905), it was held that a homicide was committed in the perpetration of the robbery when it occurred after the robbery at another place approximately two miles distant.

In Fouquette, supra, the court pointed out that 'Robbery, unlike burglary is not confined to a fixed locus, but is frequently spread over considerable distance and varying periods of time.' Id., at 527, 221 P.2d at 416.

'The 'perpetration' of the crime of robbery is not completed the moment the stolen property is in the possession of the robber. * * * The escape of the robber with his ill-gotten gains by means of arms is as important to the execution of the robbery as gaining possession of the property.' Id., at 527 and 528, 221 P.2d at 416.

Appellant asks this court to follow the example of the New York court in People v. Marwig, 227 N.Y. 382, 125 N.E. 535, 22 A.L.R. 845 (1919), which laid down a more restricted and limited rule to govern felony-murder. However, even if this court were to endorse that decision, it would not change our holding in this case. In People v. Marwig, supra, there was a clear break in the 'chain of events' so that the...