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State v. Andrews3/14/2001
ecause the killing was committed in a reckless manner. The trial court refused to so instruct the jury because clearly, a deadly weapon had been used.
[ .] The crime with which Andrews was charged and ultimately convicted is defined by SDCL 22-16-15(3): "Homicide is manslaughter in the first degree when perpetrated without a design to effect death, but by means of a dangerous weapon." Manslaughter in the second degree is defined as a reckless killing of another and explicitly excludes manslaughter in the first degree from its definition. SDCL 22-16-20. Andrews' argument on appeal completely ignores the shotgun, held 3 to 5 feet from Davis' head that blew a single hole into her skull, fracturing it and causing instantaneous death.
[ .] In order to instruct the jury on a lesser included offense, both a legal test and a factual test must be met. If one test is not satisfied, the other test need not be addressed. State v. Black, 506 NW2d 738, 744 (SD 1993). The duty of the trial court to instruct is determined by the evidence. In order to meet the factual test, evidence must be presented that would support a conviction on the lesser charge. Id.; State v. Gregg, 405 NW2d 49, 51 (SD 1987).
[ .] Here, it is undisputed that death came for Davis via the shotgun, indisputably a dangerous weapon. See State v. Heumiller, 317 NW2d 126, 131 (SD 1982) ("Judicial notice can be taken that at close range, a shotgun is a dangerous and deadly weapon."). Death by a dangerous weapon is specifically excluded from the definition of manslaughter in the second degree. The trial court did not err in refusing to instruct the jury on this lesser offense as the evidence did not support it.
[ .] Affirmed.
[ .] MILLER, Chief Justice, SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.
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