State v. Pettit
| Decision Date | 22 September 1989 |
| Docket Number | No. 88-492,88-492 |
| Citation | 445 N.W.2d 890,233 Neb. 436 |
| Parties | STATE of Nebraska, Appellee, v. Sylvester Frank PETTIT, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Homicide: Words and Phrases. A person commits manslaughter if he kills another without malice, either upon a sudden quarrel, or causes the death of another unintentionally while in the commission of an unlawful act. Neb.Rev.Stat. § 28-305(1) (Reissue 1985).
2. Criminal Law. There are no common-law crimes in Nebraska.
3. Criminal Law: Legislature: Statutes. Within constitutional boundaries, the Legislature is empowered to define a crime and punish a person's conduct expressly declared to be criminal.
4. Criminal Law: Statutes: Intent: Words and Phrases. The meaning of words or phrases used in reference to common-law crimes may be helpful in determining the meaning, intent, or effect of a statute which does not contain an express definition of terms in the statute.
5. Homicide: Words and Phrases. Neb.Rev.Stat. § 28-305(1) (Reissue 1985) establishes and distinguishes the two categories of manslaughter: an unlawful killing, without malice, "upon a sudden quarrel," which may be characterized as voluntary manslaughter, and an unlawful but unintentional killing, without malice, as the result of the defendant's commission of an unlawful act, which may be characterized as involuntary manslaughter.
6. Homicide: Words and Phrases. As used in Neb.Rev.Stat. § 28-305(1) (Reissue 1985), the phrase "sudden quarrel" does not necessarily mean an exchange of angry words or an altercation contemporaneous with the unlawful killing and does not require a physical struggle or other combative corporal contact between the defendant and the victim.
7. Homicide: Words and Phrases. In relation to manslaughter, a sudden quarrel is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control.
8. Convictions: Homicide: Proof: Intent. To sustain a conviction for voluntary manslaughter under Neb.Rev.Stat. § 28-305(1) (Reissue 1985), that is, a conviction for killing another, without malice, "upon a sudden quarrel," the State, by evidence beyond a reasonable doubt, must prove that the defendant intended to kill, and did kill, another.
9. Homicide: Intent: Words and Phrases. "Accident" is not a defense to the crime of voluntary manslaughter under Neb.Rev.Stat. § 28-305(1) (Reissue 1985), but does relate to intent to kill, which is an element of the crime of manslaughter committed "upon a sudden quarrel."
10. Homicide: Intent: Jury Instructions. If a court instructs the jury that intent to kill is an element of voluntary manslaughter committed "upon a sudden quarrel," and otherwise sufficiently defines intent or intentional relative to the defendant's conduct, the trial court is not required to give a separate instruction on the theory of accident pertaining to the homicide which is the subject of the manslaughter charge against the defendant.
John O. Sennett and Brad Roth, of Sennett & Roth, for appellant.
Robert M. Spire, Atty. Gen., and Lynne R. Fritz, for appellee.
A jury found Sylvester "Frank" Pettit guilty of manslaughter in the death of his wife, Pandora Pettit. Neb.Rev.Stat. § 28-305(1) (Reissue 1985) provides: "A person commits manslaughter if he kills another without malice, either upon a sudden quarrel, or causes the death of another unintentionally while in the commission of an unlawful act." The court sentenced Pettit to imprisonment for 4 to 12 years.
Frank Pettit claims that the district court erred by overruling Pettit's motion for directed verdict at the conclusion of evidence and in refusing to instruct on "accident" regarding Pandora Pettit's death. Frank Pettit also contends that the district court committed reversible error by allowing amendment of the information initially filed, admitting evidence over Pettit's relevance objections (photographs taken in conjunction with the autopsy on Pandora Pettit, rifle ammunition found at the scene of the fatality, Pettit's .44-caliber pistol, and testimony concerning Pettit's physical appearance), and imposing an excessive sentence.
Frank and Pandora Pettit were married in July 1982. Frank Pettit drank alcohol to excess and frequently changed jobs. On New Year's Eve for 1986, Frank Pettit and his cousin, with whom Pettit had grown up, attended a dance. During the course of that evening, Frank's cousin committed suicide, apparently by gunshot. Later, Frank tried to take his own life, but his suicide weapon, a gun, misfired. In August 1986, Frank and Pandora Pettit began working for the Shinn Turkey Ranch, where Frank mixed feed for turkeys and loaded live turkeys for shipment on trucks. Pandora took care of brooder turkeys and helped Frank load turkeys for shipment. The couple lived with Pandora's children from a previous marriage, namely, Scott, age 13, and Shelly, age 12, in a house provided by and located on the Shinn ranch. The Pettit home did not have a telephone. According Although Shinn never saw Frank Pettit with a firearm, Frank owned two guns, a .22-250 caliber Remington Model 788, a high velocity bolt-action rifle; and a .44-caliber, black powder, cap-and-ball pistol. Donald Roberts, who was Pettits' neighbor for 5 months before Pandora's death, never observed Frank Pettit intoxicated or saw Frank Pettit act belligerently toward, or otherwise threaten, Pandora. Although Pettits had difficulty in paying their debts and sometimes argued about their financial condition, Frank Pettit never struck Pandora during their arguments.
to Doug Shinn, Pettits' employer, Frank Pettit did not exhibit a drinking problem during employment by Shinn.
On January 15, 1987, an extremely cold day, Frank and Pandora were working on the Shinn ranch. Around 3 p.m., Pettits and other Shinn employees began loading turkeys for shipment, work which continued until 9:30 p.m., when Pettits received their paychecks. Pandora, who received the checks for Pettits, lost the checks, which irritated Frank because the cold and dark hindered finding the checks among the turkey feathers at the loading site. After a 10-minute search, Pettits found their checks and, after dismantling the loading equipment, returned to their home around 10 p.m. Pandora took a warm bath. Frank, who was "pretty well wound up," began drinking cherry vodka and scotch while listening to music. Later, Pettits argued about Frank's drinking. After four or five drinks, Frank decided to drive to town for more liquor. Pandora accompanied Frank, who took his .44-caliber pistol on the trip to town. En route, Pettits' car ran out of gas, and the couple started to walk across a field on the return to their home. Pettit gave his insulated nylon jacket to Pandora and attempted to carry her across a rough field, but kept falling down. When Pettits finally reached their home, Frank passed out in the front yard. Pandora went into the house and returned outside with Scott and Shelly to assist in taking Frank into the house. While Pandora and the children were helping Frank enter the house, he awoke and pointed the .44 pistol at "something" in nearby bushes, only to discover that the "something" was Hubert, the family's dog. Pettits and the children entered the house. Scott and Shelly went to bed, Pandora went somewhere within the house, and Frank entered Pettits' 9- by 11-foot bedroom through its only access, a door at the room's southwest corner. A bed was located in the northwest corner of the room opposite the doorway. A dresser stood against the bedroom's east wall.
According to Frank Pettit, he entered the bedroom with the intention to commit suicide, put the pistol in a dresser drawer, started his tape player for music, and took his rifle from behind the bedroom door. Then Frank Pettit sat on the edge of the bed and "jacked a shell in the rifle," that is, Pettit operated the bolt-action to deliver a live round from the cartridge clip or magazine to the breech and cock the rifle's hammer for firing. The cartridge clip or magazine fits into a magazine floor plate, which is located immediately ahead of the rifle's trigger guard. After he had armed the rifle, Pettit placed the butt of the rifle on the floor between his legs with the rifle's muzzle near his head. At that point, Pandora entered the bedroom and started arguing with Frank about his obvious and present effort to commit suicide. Frank pushed Pandora from the bedroom and again sat on the side of the bed, placing the butt of the rifle on the floor with the rifle's muzzle under his chin. Pandora reentered the room, grabbed the rifle from Frank, and threw it over Frank's right shoulder as she exclaimed: The hurled rifle landed behind Frank on the bed. Still seated on the edge of the bed, Frank retrieved the rifle and, with his knees bent and his feet on the floor, lay back on the bed. The rifle's barrel pointed generally to the left of [Pandora] told me finally that if, tomorrow, I still wanted to commit suicide, that she wouldn't want to stand in my way, and convinced me to wait until tomorrow, and at that point, she started to take off her coat and stuff, and I went ahead and started to sit up and pick up the rifle, and at the same time I went to pull the clip out of the rifle, and that's when it went off.
Frank Pettit as the rifle lay across Frank's legs at his knees. The couple continued to argue about Frank's prospective suicide. Pandora finally convinced Frank to forgo suicide and began to take off the nylon jacket she was wearing. According to Frank Pettit:
Frank caught Pandora as she fell, placed her on the floor with her head toward the bedroom's west wall, and tried to comfort her.
Ten to 15 seconds after Scott had...
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