# State v. Pettit

> Nebraska Supreme Court · September 22, 1989 · 233 Neb. 436

URL: https://www.frixlaw.com/law-library/cases/9692589

## Case

- **Full name:** State of Nebraska, Appellee, v. Sylvester Frank Pettit, Appellant
- **Court:** Nebraska Supreme Court
- **Decided:** September 22, 1989
- **Citations:** 233 Neb. 436; 445 N.W.2d 890; 1989 Neb. LEXIS 397
- **Precedential status:** Published
- **Opinion:** Dissent by Boslaugh
- **Judges:** Hastings, Boslaugh, White, Caporale, Shanahan, Grant, Fahrnbruch
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by State v. Jones, 245 Neb. 821 (1994).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9692589

## Opinion text

Boslaugh, J.,
dissenting.
I agree that the judgment in this case must be reversed, but it is my opinion that the cause should be remanded with directions to dismiss.
I agree with Judge Fahrnbruch that under the statutes of Nebraska the distinction between second degree murder and manslaughter upon a sudden quarrel is the presence or absence of an intention to kill.
Under our present statutes, murder is the unjustified intentional killing of another. Manslaughter is the unjustified killing of another without malice, upon a sudden quarrel or while in the commission of an unlawful act. Malice is the intentional doing of a wrongful act without just cause or excuse. Since manslaughter is a killing without malice, there can be no intention to kill in committing manslaughter.
In my opinion, there is not sufficient evidence to permit a *477 jury to find beyond a reasonable doubt that the defendant was guilty of manslaughter. As the majority opinion points out in great detail, the evidence as to how the victim was killed is equivocal.
In determining the sufficiency of circumstantial evidence to support a conviction, any fact or circumstance reasonably susceptible of two interpretations must be resolved most favorably to the accused. State v. Earlywine, 191 Neb. 533 , 215 N.W.2d 895 (1974). Conjecture, speculation, or the choice of quantitative possibilities is not proof. Mustion v. Ealy, 201 Neb. 139 , 266 N.W.2d 730 (1978). The State may not rely alone on inferences that would support a finding of guilt where several inferences are deducible from the facts proved, which inferences are opposed to each other but are equally consistent with the facts proved. Anderson v. Farm Bureau Ins. Co., 219 Neb. 1 , 360 N.W.2d 488 (1985).
It seems to me that the inference that the killing was accidental is at least as strong as the inference that it was a crime. Under those circumstances, a jury cannot be permitted to speculate as to how the victim came to her death.
White and Fahrnbruch, J J., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9692589. Public record. Not legal advice.