Opinion
No. 44070.
June 7, 1974.
Criminal law — murder conviction — sufficiency of evidence.
Appeal and error — failure to request instructions at trial — waiver of right to challenge on appeal.
Appeal by Wayne Eugene Carson from a judgment of the Hennepin County District Court, Elmer R. Anderson, Judge, whereby he was convicted of murder in the third degree. Affirmed.
C. Paul Jones, State Public Defender, for appellant.
Warren Spannaus, Attorney General, Gary W. Flakne, County Attorney, and Theodore R. Rix, Michael McGlennen, and Vernon E. Bergstrom, Assistant County Attorneys, for respondent.
Considered and decided by the court without oral argument.
Defendant, found guilty by a district court jury of third-degree murder, Minn. St. 609.195(2), and sentenced by the presiding judge to the custody of the Youth Conservation Commission for a term not to exceed 25 years, appeals from judgment of conviction. We affirm.
Defendant's contention that the evidence was insufficient to support the verdict is without merit. Defendant was first involved in a fight with the victim late on the evening of January 22, 1972, at a Minneapolis bar. After leaving the hospital to which police had taken him for treatment of facial injuries sustained in this fight, defendant secured a steak knife and returned to the bar shortly after midnight and attacked the victim with the knife, inflicting three wounds, two superficial, one fatal. On these facts, the jury could properly conclude that defendant wilfully and knowingly, without intent to kill, killed the victim while committing the felony of aggravated assault upon him. See, State v. Smith, 295 Minn. 65, 203 N.W.2d 348 (1972); State v. Morris, 290 Minn. 523, 187 N.W.2d 276 (1971); State v. Kopetka, 265 Minn. 371, 121 N.W.2d 783 (1963); State v. Nelson, 148 Minn. 285, 181 N.W. 850 (1921).
We do not consider defendant's other contentions relating to the trial court's failure to give certain instructions because defendant did not request these instructions and, therefore, waived the right to raise those issues on appeal. State v. Tellock, 273 Minn. 512, 142 N.W.2d 64 (1969).
Affirmed.
MR. JUSTICE SCOTT took no part in the consideration or decision of this case.