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State v. O'Keefe - 23 Nev. 127, 43 P. 918 (1896)

Rule:

Nev. Gen. Stat. § 4292 provides that the jury may find a defendant guilty of any offense the commission of which is necessarily included in that with which he is charged, or an attempt to commit the offense.

Facts:

At the time relevant to the facts of the case at hand, Jonathan Lees, together with a certain Mcdonald, was in the front portion of a house occupied by the latter. Thereafter, a party of boys, among whom was defendant John O'Keefe, invaded the premises, separated the men by driving McDonald to the rear and detaining him there while the others robbed Lees of an inconsiderable sum of money. It was not definitely shown that defendant participated in the robbery other than he came with the robbers and left when they left, was present at the robbery and apparently acquiesced therein. Consequently, defendant was charged of the crime of robbery; he was convicted for attempt to commit robbery in Nevada state court. Defendant appealed his conviction.

Issue:

Notwithstanding the lack of concrete evidence showing that defendant participated in the robbery in question, could he be convicted of attempt to commit robbery?

Answer:

Yes.

Conclusion:

The state supreme court affirmed the conviction, finding that it was not necessary to show that defendant took any money from the victim by his own hands, or that he actually participated in the assault. The court found that if defendant was present, under the circumstances, the evidence would have been justified the jury in finding him guilty of the robbery by aiding and abetting the crime. Under Nev. Gen. Stat. § 4292, the jury could have found defendant guilty of the robbery. Thus, because defendant was found guilty of a lesser offense, he could not complain.

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