Sheriff, Clark County v. Hicks
| Decision Date | 22 February 1973 |
| Docket Number | No. 7074,7074 |
| Citation | 89 Nev. 78,506 P.2d 766 |
| Parties | SHERIFF, CLARK COUNTY, Nevada, Appellant and Cross-Respondent, v. John William HICKS and John Branch, Respondents and Cross-Appellants. |
| Court | Nevada Supreme Court |
The grand jury in Clark County indicted Respondents John William Hicks and John Branch in four counts for the following crimes: Murder, 1 attempted murder, 2 burglary, 3 and conspiracy to commit burglary. 4
Hicks and Branch filed a habeas petition in the district court challenging the sufficiency of the evidence presented to the grand jury, upon which the counts in the indictment were predicated. NRS 172.155. 5
The district judge, after a hearing on the habeas petition, found that there was a lack of probable cause to sustain the murder and attempted murder counts, and the court dismissed those counts. The court did find, however, that the proceedings before the grand jury established sufficient evidence to support the counts of burglary and conspiracy to commit burglary.
The State has appealed from the district court's order dismissing the counts of murder and attempted murder, while the respondents have cross-appealed from the court's order sustaining the counts of burglary and conspiracy to commit burglary.
On May 30, 1972, at 5 o'clock in the morning, Respondents Hicks and Branch, in the company of Robert Murphy, who is now deceased, drove in Hicks's car to within a block or so of the residence of one Melvyn Myers in Las Vegas, Nevada. Hicks and Murphy left the car, walked over to the residence, and rang the front door bell. Myers awoke, took a pistol from a nightstand drawer near his bed, and went downstairs to answer the door. Looking through the curtain on the door, he saw and recognized Hicks standing outside. Holding his gun down at his side, Myers started to open the door when Murphy, whom he had not seen at the door, lunged from the side and forced his entrance into the residence. Pulling a pistol from inside his shirt, Murphy struck Myers on the head, knocking him to the floor. With Murphy standing over him, gun in hand, Myers fired several shots from his own weapon; four shots struck Murphy--two of them with lethal effect. Hicks, meanwhile, seeing the gun in Myers's hand, ran back to the car. During all of this time, Branch remained in Hicks's vehicle parked near the front of Myers's residence. After Hicks returned to the vehicle, he and Branch remained in the parked car waiting for Murphy to join them, until they saw a police patrol car draw up at the Myers residence, at which time they exited the scene, in the car.
The State, in attempting to hold Hicks and Branch for the murder of their accomplice Murphy, has relied on the felony-murder rule, i.e., where a person is killed during the commission of a felony, a cohort involved in the commission of that principal crime may also be charged with murder. In support of its position, the State has relied heavily on Taylor v. Superior Court, 3 Cal.3d 578, 91 Cal.Rptr. 275, 477 P.2d 131 (1970). However, as the California court stated in Taylor, the felony-murder rule does not apply when the killing is done by the victim of the crime, because in such a case the malice aforethought necessary for murder is not attributable to the accomplice felon. The killing in such an instance is done, not in the perpetration of, or an attempt to perpetrate, a crime, but rather in an attempt to thwart the felony. NRS 200.120. 6 The application of the felony-murder rule to a situation involving felons charged with the murder of a cofelon killed by another in resisting the commission of a felony has been widely rejected. The leading case is Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472 (1958), which has been followed in many jurisdictions. State v. Garner, 238 La. 563, 115 So.2d 855 (1959); People v. Wood, 8 N.Y.2d 48, 201 N.Y.S.2d 328, 167 N.E.2d 736 (1960); People v. Austin, 370 Mich. 12, 120 N.W.2d 766 (1963); Commonwealth v. Balliro, 349 Mass. 505, 209 N.E.2d 308 (1965); People v. Morris, 1 Ill.App.3d 566, 274 N.E.2d 898 (1971).
It is true that in Taylor the California court, upon a rather new and unique theory of vicarious liability based upon negligence concepts of proximate cause, natural consequences, and implied malice, did hold a cofelon to answer for the murder of his accomplice, who was shot and killed by the victims of the robbery. However, we are not persuaded by the Taylor reasoning, and we reject it. 7 We therefore sustain the ruling of the district court in dismissing the count of murder.
The district judge, after reviewing the transcript of the proceedings before the grand jury, found that there was insufficient evidence in the record to show probable cause that Hicks and Branch had attempted to murder Myers, and the court also dismissed that count of the indictment. 8 We, too, have reviewed that record and fail to find sufficient evidence therein to establish the necessary probable cause required to hold the respondents to answer the charge of attempted murder of Myers. We therefore sustain the ruling of the lower court in dismissing Count II of the indictment.
One of the essential elements of burglary is the entry of a building with the 'intent to commit grand or petit larceny, or any felony.' (Emphasis added.) NRS 205.060, subsection 1. 9 In the burglary and conspiracy to commit burglary counts, the State has predicated the necessary intent to commit 'any felony' on the charge of attempted murder of Myers. Since the lower court properly struck down the attempted murder count, the counts of burglary and conspiracy to commit burglary as they are presently drafted are fatally defective, and they, too, must fall. Cf. Simpson v. Eighth Judicial District Court, 88 Nev. ---, 503 P.2d 1225 (1972).
It is ordered that the district court's ruling dismissing Counts I and II of the indictment be sustained. It is further ordered that the case be remanded to the district court with instructions to dismiss Counts III and IV without prejudice to a new and sufficient accusation.
1 'COUNT I--Murder
'did then and there wilfully, unlawfully and feloniously kill and murder ROBERT LEE MURPHY, a human being, said killing being committed while the said ROBERT LEE MURPHY, deceased, and Def...
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