Opinion
No. 81-783.
Filed July 30, 1982.
1. Lesser-Included Offenses. To be a lesser-included offense, the elements of the lesser offense must be such that it is impossible to commit the greater without at the same time having committed the lesser. 2. ___. To determine whether one statutory offense is a lesser-included offense of the greater, we look to the elements of the crime and not to the facts of the case. 3. Assault: Lesser-Included Offenses. First degree assault is not a lesser-included offense of attempted murder in the second degree.
Appeal from the District Court for Lancaster County: WILLIAM D. BLUE, Judge. Reversed and dismissed.
Dennis R. Keefe, Lancaster County Public Defender, for appellant.
Paul L. Douglas, Attorney General, and Patrick T. O'Brien, for appellee.
Heard before KRIVOSHA, C.J., BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.
The appellant, Claude D. Lovelace (Lovelace), appeals from a jury verdict finding him guilty of first degree assault. Lovelace maintains, on appeal, that the trial court erred in instructing the jury that first degree assault was a lesser-included offense of attempted murder in the second degree. We agree with Lovelace, and for that reason we reverse the conviction.
Lovelace was tried on an amended information. Count I of the amended information charged Lovelace with the crime of attempted second degree murder in violation of Neb. Rev. Stat. § 28-304(1) (Reissue 1979). Count II charged Lovelace with using a firearm to commit a felony in violation of Neb. Rev. Stat. § 28-1205(1) (Reissue 1979). The facts in the instant case are not important for our disposition of the legal question presented to us. Suffice it to say that the evidence was sufficient to establish the fact that Lovelace did indeed shoot and wound one Raynold Jurgens during the course of an argument.
At the conclusion of all the evidence, the trial court submitted the case to the jury. The trial court advised the jury that "Under the information in Count I of this case, depending on the evidence, you may find the defendant: a. Guilty of attempted second degree murder. b. Guilty of assault in the first degree. c. Not guilty. . . ." The court apparently included the instruction regarding assault in the first degree at the request of the State, on the theory that the crime of assault in the first degree is a lesser-included offense of attempted second degree murder and therefore may properly be submitted to the jury. There is, of course, the question of whether the State may, under any circumstance, request an instruction of a lesser-included offense. While we recognize that the question is raised in this case, because of the manner in which we dispose of the case, we do not, at this time, address that issue, but, rather, address only the legal question of whether assault in the first degree is a lesser-included offense of attempted murder in the second degree.
We emphasize that the analysis we make here is between assault in the first degree and attempted murder in the second degree, and not assault in the first degree and murder in the second degree. The offense of attempted murder in the second degree is defined by Neb. Rev. Stat. § 28-201 and 28-304 (Reissue 1979). Section 28-304(1) defines murder in the second degree as occurring when "A person . . . causes the death of a person intentionally, but without premeditation." Attempted murder in the second degree occurs, under the provisions of 28-201(1), when "A person . . . (a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or (b) Intentionally engages in conduct which, under the circumstances as he believes them to be, constitutes a substantial step in the course of conduct intended to culminate in his commission of the crime." To therefore be guilty of attempted murder in the second degree, the evidence must establish beyond a reasonable doubt that the accused, in effect, took a substantial step in a course of conduct intended to cause the death of another with malice and intent. The fact that no injury befalls the victim is of no consequence. One may attempt to murder another by shooting at him. Should he, however, miss his victim, striking a nearby tree, he may nevertheless be guilty of attempted murder in the second degree. Assault in the first degree, on the other hand, is committed when one "intentionally or knowingly causes serious bodily injury to another." (Emphasis supplied.) Neb. Rev. Stat. § 28-308 (Reissue 1979). The crime of assault in the first degree requires that a serious bodily injury in fact occurred. That one attempts to injure another and fails to cause a serious bodily injury is not sufficient to constitute assault in the first degree, as it is in the case of attempted second degree murder. It is therefore clear that while the elements of first degree assault may be present in a case of attempted second degree murder, it is likewise clear that one may nevertheless be guilty of attempted second degree murder without having committed first degree assault. It is this distinction which precludes assault in the first degree from being a lesser-included offense of attempted murder in the second degree. In State v. Colgrove, 197 Neb. 375, 376-77, 248 N.W.2d 780, 781 (1977), we defined a lesser-included offense by saying: "A lesser included offense is one which is necessarily established by proof of the greater offense. Fuller v. United States, 407 F.2d 1199. To be a lesser included offense, the elements of the lesser offense must be such that it is impossible to commit the greater without at the same time having committed the lesser. Certain v. State, 261 Ind. 101, 300 N.E.2d 345. In sum the lesser included offense is one all the elements of which are necessarily included in the greater. See, State v. Jones, 186 Neb. 303, 183 N.W.2d 235; State v. McClarity, 180 Neb. 246, 142 N.W.2d 152." See, also, State v. White, 209 Neb. 218, 306 N.W.2d 906 (1981). As we have observed, the test which is imposed before an offense may be defined as a lesser-included offense cannot be met in the situation involving attempted second degree murder and assault in the first degree. The fact that under a given set of circumstances such may be the case is not sufficient to constitute assault in the first degree as a lesser-included offense of attempted murder in the second degree as a matter of law. To determine whether one statutory offense is a lesser-included offense of the greater, we look to the elements of the crime and not to the facts of the case. In State v. Smith, 55 Wis.2d 304, 310, 198 N.W.2d 630, 633 (1972), the Wisconsin Supreme Court observed that when determining whether one crime is a lesser-included offense of another, the court should be concerned only with the elements of the crime and not with the particular facts established in the case at hand, saying: "[T]he test for a lesser included offense is not the peculiar nature of a single defendant's crime, rather it is whether the lesser offense is statutorily within the greater."
In view of what we have previously said about the elements of the lesser-included offense being such that the greater offense cannot be committed without at the same time committing the lesser, we believe the Wisconsin court's observation, noted above, is valid. See State v. Colgrove, supra. The trial court was in error in giving such an instruction. For that reason, the case must be reversed.
In doing so, we do not imply that we excuse the act of the defendant in this case. Our function, however, is to apply the law, even though it may produce a result contrary to our own best wishes. That is what a legal system based upon due process is really all about. In reversing this case, we note, however, that having found that assault in the first degree is not a lesser-included offense of attempted murder in the second degree, the rule set out in State v. Aby, 205 Neb. 267, 287 N.W.2d 68 (1980), to the effect that a conviction or acquittal of the principal offense bars any prosecution or punishment for a lesser-included offense does not apply. As we noted in State v. Dinverno, 205 Neb. 775, 778, 290 N.W.2d 203, 205 (1980): "Even where one and the same act constitutes two separate and distinct crimes, neither an acquittal nor a conviction of one bars a prosecution for the other as placing the defendant in double jeopardy." See, also, State v. Carter, 205 Neb. 407, 288 N.W.2d 35 (1980).
The judgment and conviction are reversed and dismissed.
REVERSED AND DISMISSED.