Collman v. State8/23/2000
child abuse in this case established willfulness, deliberation, and premeditation which in turn established malice. We reject both prongs of the state's argument.
The means enumerated in subsection (1)(a) do not necessarily constitute willfulness, deliberation, and premeditation, though there is authority for construing the statute in this manner. See Graham v. State, 116 Nev. ___, 992 P.2d 255 (2000). The original enumerated means are poison, lying in wait, and torture, whereas child abuse was added to subsection (1)(a) only recently. Although the three traditional enumerated means are normally consistent with deliberate, premeditated action, cf. LaFave & Scott, Criminal Law ยง 7.1, at 605, child abuse can be and often is a rash, impulsive crime. It is unnecessary to analyze murder by means of child abuse in terms of deliberation and premeditation because the soundest view is simply that a murder perpetrated by an enumerated means is first-degree murder by force of statute, without legal concern with or factual inquiry into willfulness, deliberation, and premeditation. See Graham, 116 Nev. at ___, 992 P.2d at 257-58; State v. Johnson, 344 S.E.2d 775, 781 (N.C. 1986); People v. Thomas, 261 P.2d 1, 3 (Cal. 1953).
The second prong of the state's argument contains a more pronounced flaw because malice is not subsumed by willfulness, deliberation, and premeditation. This court has so stated, but without much explanation. See, e.g., Hern v. State, 97 Nev. 529, 532, 635 P.2d 278, 280 (1981). But the proposition can be easily illustrated. For example, it is possible for a police sniper to act willfully, deliberately, and premeditatedly but without malice in fatally shooting a man who has taken hostages and threatens their lives. The legal defense of defense of self or others justifies a homicide and negates the element of malice. " ven a deliberate killing, if done in actual self-defense, is justifiable; the intent is not unlawfully to take the life of another." Kelso v. State, 95 Nev. 37, 42, 588 P.2d 1035, 1039 (1979); see also State v. Vaughan, 22 Nev. 285, 299-302, 39 P. 733, 735-36 (1895).
Malice versus specific intent to kill
As a second argument, the State repeatedly invokes and cites authority for the proposition that specific intent to kill is not a necessary element of murder. This proposition, however, does not address this court's concern with jury instruction number 11. The instruction stated that "murder committed by means of child abuse" is a kind of murder which carries with it "conclusive evidence of malice aforethought." (Emphasis added.) Specific intent to kill is not synonymous with malice. The fact that not every murder requires a specific intent to kill does not relieve the State of the burden to prove some kind of malice to establish murder.
As the West Virginia Supreme Court of Appeals explained, "the language 'murder by poison, lying in wait, imprisonment, starving' does not require that premeditation or a specific intent to kill has to be shown, but to elevate the homicide to first-degree murder, a killing with malice must be proved and one of the four enumerated acts must be established." State v. Harper, 365 S.E.2d 69, 72 (W. Va. 1987); see also People v. Benjamin, 124 Cal. Rptr. 799, 813 (Ct. App. 1975).
First-degree murder by an enumerated means versus first-degree felony murder
The State analogizes murder under NRS 200.030(1)(a) to felony murder under subsection (1)(b). In the latter case, by law the malice required for murder is supplied by the intent to commit an enumerated felony. Likewise, the State argues, the requisite malice arises as a matter of law from the use of an enumerated means under s
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