Turner v. State
| Decision Date | 06 February 1980 |
| Docket Number | No. 11601,11601 |
| Citation | 605 P.2d 1140,96 Nev. 164 |
| Parties | Robert TURNER, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Smith & Maurer, Las Vegas, for appellant.
Robert J. Miller, Dist. Atty., H. Douglas Clark, and David Schwartz, Deputy Dist. Attys., Clark County, Las Vegas, for respondent.
Robert Turner was charged with first degree murder and, by a jury, convicted of that offense. The jury was instructed regarding the elements of first degree murder, and also regarding felony murder since one of the State's theories of guilt was that the killing occurred during the perpetration of a robbery. 1 It is asserted that prejudicial error occurred when the trial court failed, sua sponte, to instruct the jury that a specific intent to permanently deprive the owner of his property is an element of the crime of robbery. The court did, by instruction, give the jury the statutory definition of robbery which is silent regarding intent. NRS 200.380. 2
Although the statute is silent regarding intent, this court has held that the "taking" in the crime of robbery must be with the specific intent permanently to deprive the owner of his property. State v. Sala, 63 Nev. 270, 169 P.2d 524 (1946). And, we note that instructions regarding the specific intent required for robbery were given in Brimmage v. State, 93 Nev. 434, 567 [96 Nev. 166] P.2d 54 (1977), and Rogers v. State, 83 Nev. 376, 432 P.2d 331 (1967). 3
In State v. Switzer, 38 Nev. 108, 145 P. 925 (1914), this court ruled that an instruction defining robbery in the language of the statute is sufficient absent a request for a more specific instruction by defense counsel. It would appear to follow from that decision that the trial court is not obliged, on its own, to instruct regarding the specific intent element of robbery.
We have since ruled that an accurate instruction upon the basic elements of the offense charged is essential, and the failure to so instruct constitutes reversible error. Dougherty v. State, 86 Nev. 507, 471 P.2d 212 (1970); Harvey v. State, 78 Nev. 417, 375 P.2d 225 (1962). In the light of our more recent pronouncements, the ruling in Switzer is no longer viable. It is the duty of the trial court to see that the jury is adequately informed on all elements of the offenses concerning which instructions are given. People v. Ford, 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892 (1964); People v. Sanchez, 35 Cal.2d 522, 219 P.2d 9 (1950).
The need for proper instruction on all essential elements is shown by the case at hand. Turner was charged with having committed first degree murder, a willful, deliberate and premeditated killing. The jury was instructed as to the elements of that offense. Additionally, the jury was instructed that Turner could be found guilty of first degree murder if the homicide occurred during the perpetration of a robbery. The verdict returned by the jury was guilty of murder in the first degree. At that moment one could not know whether the jury had found him guilty of a willful, deliberate and premeditated killing, or whether he was found guilty of first degree murder because the homicide happened during the perpetration of a robbery.
Subsequently at the penalty hearing, the jury noted, as an aggravating circumstance, that the homicide occurred while perpetrating a robbery. In the light of this finding, it is at least arguable that the verdict of first degree murder was based upon the felony murder doctrine, rather than upon a belief that the killing was willful, deliberate and premeditated. The importance of having the jury properly instructed on all elements of the crime of robbery becomes apparent. The defendant had testified that he pulled his gun to protect himself rather than permanently to deprive the victim of his property, thus placing the specific intent element of robbery directly in issue. The jury, however, was not required to resolve this issue in conjunction with its consideration of felony murder. Within this context the error may not be labeled harmless.
Other assigned errors need not be considered. Reversed and remanded for a new trial.
...
To continue reading
Request your trial
-
Turner v. Housewright
...basic elements of the offense charged is essential, and the failure to so instruct constitutes reversible error. Turner v. State, 96 Nev. 164, 166, 605 P.2d 1140, 1141 (1980); Dougherty v. State, 86 Nev. 507, 509, 471 P.2d 212, 213 (1970). A review of the instructions as a whole reveals tha......
-
Turner v. State
...possibility of parole. Turner appealed that conviction and we reversed on a ground not relevant to the instant appeal. Turner v. State, 96 Nev. 164, 605 P.2d 1140 (1980). In 1980, Turner was retried by another jury. During that trial, the prosecution introduced a statement which Turner made......
-
Litteral v. State
...held that robbery is a specific intent crime. 2 Since the trial in the instant case, we have reaffirmed that ruling in Turner v. State, 96 Nev. 164, 605 P.2d 1140 (1980). In Turner, we reversed a felony murder conviction on the grounds that the jury had not been instructed concerning every ......
-
Malone v. State
...intent required. NRS 200.380. We have repeatedly found that robbery is a general intent crime since we overruled Turner v. State, 96 Nev. 164, 165, 605 P.2d 1140, 1141 (1980). See Litteral v. State, 97 Nev. 503, 508, 634 P.2d 1226, 1228-29 (1981) (overruling Turner and holding that robbery ......