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State v. Lyerla

Citation. 424 N.W.2d 908(S.D. 1988)
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Brief Fact Summary.

Lyerla (Defendant) was convicted of second-degree murder and attempted second-degree murder after firing a weapon into a truck and killing one girl and injuring two others.

Synopsis of Rule of Law.

An individual cannot be guilty of attempted second-degree murder.


Defendant shot into a pickup truck carrying three girls while he was driving on an interstate. One of the girls was killed and the other two were injured. Defendant was charged with murder and attempted murder. The jury convicted him of second-degree murder for the death and attempted second-degree murder for the two injured girls. Defendant appealed.


Can an individual be convicted of attempted second-degree murder?


(Konenkamp, J.) No. An individual cannot be guilty of attempted second-degree murder. Second-degree murder is an unintentional killing, one that results from extremely reckless conduct without intent to kill. The crime of attempt requires an intent to bring about the attempted crime. “Attempted second-degree murder” is essentially “attempted extreme recklessness,” which is legally and logically impossible. Therefore, there is no such crime. Reversed as to the attempt convictions.


(Sabers, J.) Attempted second-degree murder should apply whenever, had the victim not survived, a second-degree murder conviction would have been appropriate.


This opinion follows the approach adopted by the majority of jurisdictions. What might be called “attempted second-degree murder” is appropriately charged as assault and/or battery.

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