dissenting:
On July 5, 1996, the district attorney of Nye County charged by information that Ms. Sandy “deliberately” murdered Elaine Werstler “by cutting her throat and stabbing her in the chest with an eight-inch serrated-blade.” On July 9, 1996, the district attorney filed an amended information which eliminated the murder charge and, instead, charged voluntary manslaughter, the new charge being that Ms. Sandy stabbed Ms. Werstler “without premeditation and upon a sudden heat of passion.”1
The district judge did not accede to the State’s dismissing the murder charge and refused to accept a guilty plea to manslaughter as part of a “plea bargain.” The judge pointed out that this case involved “a violent death resulting] from the use of a deadly weapon” and expressed his belief that under the circumstances of this case as he knew them a jury might return a murder verdict. Although the district judge expressed his concern about his “sentencing authority,” it is apparent to me from reading this limited *444record that the judge’s principal concerns related to his belief that a prosecution for manslaughter under the circumstances of this case “does not serve due and legitimate prosecutorial interest.” Sparks v. State, 104 Nev. 316, 323, 759 P.2d 180, 184-85 (1988). It appears to me that the judge did not think that this was a manslaughter case and that it was, in his view, a case that called for no less than a murder charge. The judge was clearly of the opinion that dismissing murder charges in this case would not serve legitimate prosecutorial interests or the interests of the people of this state. He was entitled to have and to act upon this opinion.
Unfortunately, the record in this writ proceeding does not furnish any of the facts surrounding the crime. We know only that Ms. Sandy is accused of killing a woman by slitting her throat and stabbing her in the chest with a serrated knife. There is nothing in the record that would divulge what “heat of passion” or what kind of sufficient “provocation” that the district attorney might have had in mind when he decided to reduce the charges from murder down to voluntary manslaughter; but I assume that the district judge was in a position to make a judgment on the question of whether the district attorney was grossly undercharging Ms. Sandy — certainly in a better position than this court is. Absent some showing by Ms. Sandy that the judge abused his discretion in ruling as he did, I would defer to the judgment of the district judge.
If this case were to turn out to be a proper case of voluntary manslaughter and a case involving heat of passion and sufficient provocation, as defined in the statute, there is no reason to suspect that a jury would not recognize the diminished liability and refuse to convict for murder. Soundness of the district judge’s decision to refuse to dismiss murder charges and permit the district attorney to proceed on manslaughter alone should be presumed by this court to be correct and to have been supported by the facts of the case that were known to the judge at the time. We have no way of knowing otherwise. For all we know, the judge might quite properly have seen this case as a case of coldblooded murder that was of such a nature that dismissing murder charges would be unthinkable under the circumstances.
If, for example, the district attorney were to have accepted a bargain in which murder charges were to be dismissed and this stabbing, throat-slitting defendant was to be permitted to plead guilty to, say, simple assault, I think no one would argue with the judge’s right to refuse to accept such a bargain. Such a bargain would be clearly seen as not serving the prosecutorial interests of the executive or of the people. It seems to me that we are rushing to judgment in this case and interfering with a legitimate function *445of the trial court. Whether or not there has been an abuse of prosecutorial discretion is not a matter that we are presently competent to judge, based on the record before us. Until it is made to appear, on the record, that the district attorney’s dismissing murder charges in this case would not be an abuse of prosecu-torial discretion, I would defer to the judgment of the trial court in the assumption that there has been in this case such “a sufficient deviation from sound prosecutorial principles” as to justify the judge’s decision. I would deny Ms. Sandy’s petition and therefore dissent to the order granting the writ.
I would note that the amended information probably does not state a public offense. The amended information cites “a violation of NRS 200.040/ NRS 193.165.” The information does not cite NRS 200.050 (“ ‘Voluntary manslaughter’ defined.”) which elaborates on the definition of the crime of manslaughter. Under NRS 200.040 and NRS 200.050, the elements of voluntary manslaughter are (1) the “unlawful killing of a human being, without malice express or implied, and without any mixture of deliberation,” (2) the killing must be “upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible,” and (3) there “must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing.”
In my view, the district judge did not err in refusing to accept a plea to a voluntary manslaughter information that made no mention of sufficient provocation in the form of a “highly provoking injury” or an attempt to “commit a serious personal injury” upon the defendant.