concurring in part and dissenting in part:
The majority opinion holds that the repeal of the fleeing-felon rule does not result in the rule’s continued existence by virtue of NRS 1.030, the statute that mandates the application of the common law where not abrogated by an express statute. I believe the majority reaches the correct analysis of the applicable statutes, but that the court is announcing a new rule in the process. And as Weddell argues, a new rule should not be applied to him in the present case.1
After the legislature repealed NRS 200.160(3), which contained the fleeing-felon rule, Nevada law still permitted a citizen to arrest a suspected fleeing felon pursuant to NRS 171.126. Some use of force is obviously foreseen by this statute, but exactly what force a citizen can use is not stated. Other jurisdictions with similar statutes have concluded that resort to the common law was appropriate to determine what force could be used, and that resulted in the application of the fleeing-felon rule.2 Unless our situation is changed by having enacted the fleeing-felon rule and then repealing it, the same reasoning should apply to this case.
In the majority opinion, it is determined that the repeal of the fleeing-felon rule and the simultaneous enactment of a statute permitting police to use deadly force showed a legislative intent to limit deadly force in apprehending felons to police officers. I concur in that analysis, but it seems to me that we have announced a new rule based on our interpretation of what the legislature intended, not what the statutes expressly stated.
A criminal statute should clearly state what conduct is prohibited and the penalty for its violation.3 In this case, we have a statute that did not specify the force a citizen can use in apprehending a fleeing felon, we have the repeal of the fleeing-felon rule and the enactment of a statute permitting only police the use of deadly force in apprehending fleeing felons, and we also have *216a statute that directs the common law be applied where not specifically abrogated by statute. With all these variables in play, our law was not so express that it can be said to be clear and unambiguous. The majority had to reject the applicability of NRS 1.030, and then resort to legislative intent and the desire to reach a reasonable result to eventually decide this case. But when reasonable ambiguity exists in a statute or series of statutes, the benefit of interpretation should favor the accused.4
Accordingly, I think the majority correctly answers the legal question posed by this case, but in the process has announced a new rule that should not be applied in the present case. I would affirm the district court’s order because the new rule should not apply to Weddell.
See Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964) (“If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue',’ it must not be given retroactive effect.” (quoting Hall, General Principles of Criminal Law 61 (2d ed. I960))).
See, e.g., State v. Cooney, 463 S.E.2d 597 (S.C. 1995); People v. Hampton, 487 N.W.2d 843 (Mich. Ct. App. 1992).
Lyons v. State, 105 Nev. 317, 320, 775 P.2d 219, 221 (1989) (“ ‘The Constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.’ ” (quoting United States v. Harriss, 347 U.S. 612, 617 (1954))).
Sheriff v. Lang, 104 Nev. 539, 542, 763 P.2d 56, 58 (1988) (noting our long-held policy that “ambiguous penal statutes must be construed liberally in favor of an accused”).