Supreme Court of South Dakota, 1988
- While driving on the highway D fired 3 shots at a truck with 3 girls
- One of the shots hit a girl and she was killed, the other 2 shots did not hit anyone.
- Prosecution conceded that the driver of the truck was “playing games” with the D by not allowing him to pass.
- D urges that it is a legal impossibility to attempt to commit 2nd degree murder because 2nd degree murder has mens rea standard of reckless.
Procedural History: Lower court found D guilty of one count of 2nd degree murder and 2 counts of attempted 2d degree murder. D appealed.
Issue: Is the D guilty of attempted murder even though he did not attempt to kill the girls?
Holding: No. D was not guilty of attempted murder in 2nd degree.
- Attempted 2nd degree murder did not exist in South Dakota.
- To commit murder one does not need to intend to take a life, but to be guilty of an attempt to murder, one has to intend to take a life.
- A death occurred in this case, but the jury decided that the D did not intend the death since he was convicted of 2nd degree murder, nor did he intend to kill the other girls.
Disposition: Conviction for 2nd degree murder affirmed. Convictions for attempted 2nd degree murder reversed.
Comments: Dissent: says that only intent or attempt necessary is a voluntary as opposed to a non-volitional or forced act. In this case the D clearly attempted the dangerous and stupid act of pulling the trigger, and this is sufficient for attempted 2nd degree murder under South Dakota law.