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Collman v. State8/23/2000
ubsection (1)(a). However, this and other courts have never followed the view urged by the State (we discuss exceptional cases treating murder by torture below).
The California Supreme Court explained this matter clearly in People v. Mattison, 481 P.2d 193, 196 (Cal. 1971).
Thus if a killing is murder within the meaning of sections 187 [defining murder as an unlawful killing with malice aforethought] and 188 [defining express and implied malice], and is by one of the means enumerated in section 189 [i.e., poison, lying in wait, or torture], the use of such means makes the killing first degree murder as a matter of law. It must be emphasized, however, that a killing by one of the means enumerated in the statute is not murder of the first degree unless it is first established that it is murder. If the killing was not murder, it cannot be first degree murder, and a killing cannot become murder in the absence of malice aforethought. Without a showing of malice, it is immaterial that the killing was perpetrated by one of the means enumerated in the statute.
It is true that murder may be committed without express malice, i.e., without a specific intent to take human life. To be so committed, however, unless the felony-murder rule is applicable, "the defendant must intend to commit acts that are likely to cause death and that show a conscious disregard for human life." [Thomas, 261 P.2d at 7 (Traynor, J., concurring).] . . .
The above rules apply to all murders, other than felony murders, regardless of whether they are committed by one of the means enumerated in section 189. See also Harper, 365 S.E.2d at 72 (quoted above); Benjamin, 124 Cal. Rptr. at 813 (cited above); cf. State v. Johnson, 821 P.2d 1150, 1156-57 (Utah 1991) (first-degree murder first requires proof of what would otherwise be second-degree murder and then proof of an enumerated aggravating factor, e.g., administering poison).
This court's case law is in accord with Mattison. That malice is required to find murder by an enumerated means was implicit to this court's reasoning in Pinana v. State, 76 Nev. 274, 286, 352 P.2d 824, 831 (1960). In that case, the court upheld the giving of a jury instruction which stated: "All murder which is perpetrated by means of lying in wait is murder of the first degree." Id.
Appellant contends that this instruction was defective because the court failed to explain that murder must first be established before the question of lying in wait can arise. In the other instructions given the court defined murder and stated that to find appellant guilty thereof all of the elements must have been proven beyond a reasonable doubt. . . . his instruction was proper to aid the jury in determining the degree of the offense in the event they found the appellant guilty of murder. Id. (emphasis added).
The court accepted the appellant's premise that "murder must first be established before the question of lying in wait can arise." In Moser v. State, 91 Nev. 809, 812 & n.3, 544 P.2d 424, 426 & n.3 (1975), the appellant challenged an instruction which read, "The unlawful killing of a human being, with malice aforethought, with express or implied intent, which is committed by a person lying in wait for his victim, is Murder in the First Degree." (Emphasis added.) This court held that the instruction was properly given and quoted People v. Atchley, 346 P.2d 764, 772 (Cal. 1959), for the proposition that the elements constituting lying in wait "'are watching, waiting, and concealment from the person killed with the intention of inflicting bodily injury upon such person or of killing such person.'" Id. at 813, 346 P.2d at 426 (emphasis added). Again,
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