State v. Randolph
Decision Date | 22 January 1926 |
Docket Number | 2719. [a1] |
Parties | STATE v. RANDOLPH. |
Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; Thomas F. Moran, Judge.
John H Randolph was convicted of murder in the first degree, and he appeals. Affirmed with direction.
A Grant Miller, of Reno, for appellant.
M. A Diskin, Atty. Gen., Wm. Forman, Jr., Deputy Atty. Gen., and L. D. Summerfield, Dist. Atty., and H. L. Heward, Asst. Dist. Atty., both of Reno, for the State.
John H. Randolph was convicted of murder in the first degree. A motion for a new trial having been denied, he has appealed from the sentence inflicting the death penalty and from the order denying his motion for a new trial.
Three points have been made to support the contention that the judgment and order should be reversed, viz.: First, that the trial court erred in instructing the jury as to the distinction between first and second degree murder; second, that the verdict is contrary to the evidence; and third, that a new trial should have been granted because of newly discovered evidence.
The evidence shows that the defendant is a man about 45 years of age; that he had long been addicted to the use of drugs, and on two or three occasions had been committed for treatment for the habit. It further appears from the testimony that on or about the night of June 30, 1925, he was residing with his mother in Reno, Nev., and about 1:30 a. m., went home in an intoxicated condition and was helped into the house by one Gaffney; that he found his way into his mother's room where she was in bed; that he requested her to get up and make him a cup of coffee, and was told that she was sick and could not do it. He then requested her to get up and help him undress for bed, to which she replied that she was too sick, but she finally started to get out of bed to help him, at a moment when he began to use vile language toward her, whereupon she threw a glass of water in his face. He then assaulted her, knocking her down. He then jumped on her and caught her by the throat and was in the act of choking her, declaring, "I will kill you; I will kill you," when roomers in the house came in and pulled him off. His mother was a woman weighing about 350 pounds and was between 70 and 75 years of age. At the request of the mother, the police were called. When they arrived, he went to his mother and asked her to tell them it was all a mistake. She replied, "Not this time." She was removed to a hospital, where she died three days later, the autopsy showing several bruises about the head and body. It appears he had kicked her in the abdomen. The immediate cause of death was the injuries received on the head.
The only evidence introduced in behalf of the defendant was that going to show his years of dissipation and the effect thereof upon his physical and mental condition. There was no evidence to the effect that he was, or had ever been, insane.
We will first consider the second contention. Our statute defines murder to be the unlawful killing of a human being, with malice aforethought, either express or implied. The unlawful killing may be effected by any of the various means by which it may be occasioned. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof. In 1919 the Legislature enacted:
1919 Stats. p. 468.
Counsel for defendant concedes that malice might have been implied by the jury but contends, as we understand him, that it must have been proven that the killing was willful, deliberate, and premeditated before the jury could have been justified in bringing in a verdict of murder of the first degree, and that there was no such proof. Just how counsel thinks deliberation and premeditation should be proven is not made clear. One thing is evident, however, and that is, if we accept his theory, proof of deliberation and premeditation could never be made in a case depending entirely upon circumstantial evidence. But it does not seem that it should be necessary to determine his contention, for it seems there is positive evidence in this case of a willful, deliberate, and premeditated design to kill. Defendant assaulted his mother, kicking her in the abdomen and knocking her down, got upon her, and while in the act of choking her, said, "I will kill you; I will kill you." This utterance, we must presume, was the expression of his real design. His mother died three days later as the result of his misconduct. To us it seems that no clearer case of willful, deliberate, and premeditated design to kill can be conceived. It is true that the immediate cause of death was the blows on the head, but the assault continued up to the moment the defendant was pulled off of the deceased, and his utterances during the making of the assault showed the state of mind of the defendant.
We will now take up the contention that the court erred in giving instruction No. 2, which reads:
In the case of State v. Harris, 12 Nev. 414, a very similar instruction was given, and, though a portion of it was criticized, it was not held erroneous. The instruction in the instant case was drawn to meet the criticism in the Harris Case. The instruction was again assailed in State v Hymer, 15 Nev. 49, and in State v. Gee Jon, 46 Nev. 418, 211 P. 676, 217 P. 587, 30 A. L. R. 1443, in each of which it was held that the instruction was not prejudicial. It is settled in this state that such an instruction is not erroneous, and we decline to consider the matter further. In this connection we may state that, though it does not seem to be made as a real ground for reversal of the judgment, something is said to the effect that, under the rule of...
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State v. Fouquette
...The refusal of the court to grant a new trial upon the ground that such evidence was newly discovered was clearly right. State v. Randolph, 49 Nev. 241, 248, 242 P. 697. Before concluding this opinion, it is proper to state that L. O. Hawkins, one of appellant's counsel in this court, did n......
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Byford v. State
...fact pattern falls within the first-degree murder construct or within the second-degree murder construct. See State v. Randolph, 49 Nev. 241, 246-47, 242 P. 697, 698 (1926); Graham, 116 Nev. at ___, 992 P.2d at 258 The Kazalyn instruction invites concern when it defines premeditation as a "......
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