*1
based
reversal can be
rights that a
evidence,
ant’s
considering
nature, after
argument.”
improper
on
the verdict.
to determine
appears
the error
Okl.Cr.,
State,
See,
Kitchens v.
closing
carefully examined
We
overwhelming
light
(1973). In
we
Attorney and
the District
argument of
we
instant case
guilt
evidence of
nothing in
is
opinion
are of
not instrumental
were
feel such remarks
that the remarks
to indicate
record
fur-We
jury’s reaching their verdict.
complains were
now
the defendant
the District
conduct
ther find
faith,
prejudicial
were
bad
weapon during
Attorney
displaying the
proposition to
fendant.
findWe
he mod-
may not
opening statement
merit.
without
repeat-
emulation, but this Court
el for
conclusion,
record
that the
In
we observe
prosecut-
remarks of
edly held that for
justify
would
error which
free of
error,
attorney
constitute reversible
ing
judgment
The
or reversal.
modification
flagrant in such
nature
they
is, accordingly,
and
affirmed.
sentence
See
prejudicial to the defendant.
to be
State, Okl.Cr.,
marks. next of which
The instances ar prosecutor’s complains defendant as a alleged crime shock ticulation ing instances occurred incident. two during closing argument. The defend MORGAN, Appellant, Drusilla Stokes closing argues during ant further prosecutor addi argument made two Oklahoma, Appellee. The STATE of one, comments; in his improper tional No. F-74-24. Patty and Martial reference Sincu in his comments Hearst other Appeals of Oklahoma. Court of Criminal being referring weak to the defense May 16, 1975. so flimsy, for conviction asking not be defendant would allowed to “weasle out of this.” Okl.Cr., State, Harvell v. occasions, many and on other
this Court has stated: argument contemplates
“The right of speech, range liberal and the freedom discussion, argumenta- illustration tion is wide. Counsel for both the State right defendant have discuss
fully standpoints their
and the inferences and deductions aris- ing argu- therefrom. when ment by is grossly counsel the State
improper and unwarranted some point have affected defend- *2 Defender, Anderson,
Don Public Okla- County, appellant. homa for Larry Derryberry, Atty. Gen., L. James Swartz, Gen., Atty. Crosth- Asst. M. Joe wait, Intern, appellee. Jr., Legal
OPINION
BLISS, Judge: here- Appellant, Morgan, Drusilla Stokes defendant, was inafter to as referred District charged, triеd and convicted Court, County, Case No. CRF- Oklahoma Murder, 73-1200, vio- the offense O.S.1971, The lation of 21 Imprison- punishment fixed at Life her ment, judgment sentence from this perfected to timely has been appeal Court. reversal, com-
As this case unnecessary. facts is plete statement on be- trial The adduced at the a clear half of established the State murder, by premeditated de- and killed brutally fendant shot was ceased, he provocation, while without help- safety lay attempting to flee to upon the floor. prostrate less and interposed fendant, howеver, self-defense deceased threat- and testified that the simply her introduce alter advancing ening and question her life native as to whether there knife, in fear for and that she shot particular category the been established a remembering anything until not then myriad evi- Further classification of the of factual situ encounter had terminated. the defense ations in behalf of dence introduced might arise, e., adequate provocation deceased was violent i.
established that the *3 carry personal aggres the form of violence and man to the defendant known knife, by аgainst at- previous occasions sion the deceased the accused and on had weapon. of un engendering with a a sudden heat tacked the defendant der the immediate of which influence assigned as er has The defendant kills, necessity, not in reasonable accused court to instruct ror the failure of the trial anger and fear but without malice from or upon voluntary degree manslaugh thought. precluding rational or reasonable passion as a ter committed in the heat of has, cases such of lesser The essence included offense. indеed, recognized occupy a mid although the argument defendant’s is that way position self-defense and between jus jury did the defendant was not believe murder.2 self-defense, killing tified in a murder essential distinction sufficient evidence from which the self-defense, prosecution perfect between could conclude that the defendant acted homicide, voluntary excusing defense and amounting from fear to a sudden heat of imperfect reduc- manslaughter, an defense passion and Under the without malice. variously thereof, ing degree has been weight authority existing here and else recognized as follows: where, opinion are that this con we requiring tention bears merit reversal. self-defense dividing “The line between However, appeal recognize we this [voluntary] present deserving clarifica existence, moving a broader issue as the seems to be the extent, precise force, tion. This issue is what reasonably of a founded belief all, prosecution if at bodily for murder does peril imminent to life or necessitating an harm, evidence of self-defense distinguished the influ- from thereon, require an instruc terror, also ence of an uncontrollable fear or tion man on or first existing, conceivable as but reasona- the heat of bly justified circum- by immediate as a lesser included offense? Since this stances.” appeal presented, was first we have con provoca- “Manslaughter resulting from analysis ducted extensive research and with homi- tion must not be confounded purposes clarifying regard the law with In the latter cide self-defense. issue. excused, necessary to blow is because category
This
gener-
it,
person striking
save the life
ally defined to be the
unlawful
inten-
prevent
bodily harm; while
grievous
killing
tional
of another without malice but
necessi-
manslaughter there is no such
under the influence of a sudden heat of
ty,
only partially ex-
and the blow is
provocation.1
adequate
caused
cused,
because
the heat
murder,
In a
passion.”4
See,
5,
1.
Colandro,
343,
authorities set forth in
footnote
3.
Commonwealth
Pa.
Best,
fra.
People
80 A.
(1936).
Cal.App.2d
See,
States,
2.
Brown v. United
150 U.S.
(1893).
Miller,
Law, 92,
282, quoted
page
S.Ct.
L.Ed. 1010
Criminal
approval
Boyce,
284 Minn.
in State
170 N.W.2d
Although their elements
mutually
are not
heat of
as a lesser included of-
co-extensive,
frequency
fense,
in which еvi
but where
evidence the el-
dence of
an in
ements of each
established,
then an in-
struction
manslaughter be
both
necessary.6.
How-
apparent upon
comes
ever,
examination
approach
has left the trial court
the extent to which the elements of the lat
in doubt as to when
thereon,
to instruct
ter are included within the
Ei
former.5
,to
has required appellate courts
engage
ther fear
necessarily
exist to in the fact-finding process. This situation
self-defense,
in every
some extent
case of
produced
widely varied results within
and when of a sufficient
these are
even the same jurisdiction,7
appli-
and the
recognized
giving
as emotional states
rise
cation of this principle in
ju-
the various
passion.
to heat of
Personal
violence
risdictions can
reconciled
ob-
aggression by deceased sufficient
serving that within
peculiarities
*4
necessitate an
upon
self-defense
their own law the courts
recognized
generally
has most
recognized
quantum
different
proof
of
that motivation
adequate legal provocation.
more than
In was heat
of
as a prerequisite to
most,
all,
if
relatively
not
in
of
few
such charge.
This
appli-
variance in the
contrary,
stances
necessity
either the
cation of that principle
persisted
has also
of
upon
an instruction
the within
jurisdiction.
our own
In the fol-
questionable,
instance seems
lowing cases
upon
such an instruction
vol-
prov
effectively
apparent
courts have
held
untary manslaughter was held to be unnec-
leaving
ocation insufficient rather than
the> essary
improper:
State,
Myers v.
Okl.
reasonableness of the defendant’s belief for Cr.,
process properly more reserved for passion] might “. . . be one of jury. cases, [The impropriety might or it be If either terror. taking question trial court this from existed to render sufficient extent jury recognized was in Stevenson v. Unit ordinary temper person the mind aof States, ed 40 L. U.S. 16 S.Ct. reflection, incapable might it be of cool (1896), Ed. 980 rea wherein the Court plausibly act fol- claimed that the part: in soned accom- lowed such an assault was not manslaugh- “. . . The as to evidence panied by necessary to consti- the malice any in tеr not be uncontradicted or need such a killing tute the Whether murder. way upon question; so conclusive in state of mind existed this long as there is some evidence plaintiff fired the whether the in error subject, proper weight to be shot under the influence jury is for the to determine. If there malice, properly re- without cannot were evidence which tended to show might bring such a state of facts as garded question (162 aas of law.” U.S. grade manslaughter, crime within the 322-323,16 842) S.Ct. proper question it then became a for the States, Also, in 68 U.S. Kinard v. United jury say whether the evidence were App.D.C. 96 F.2d truе and whether it showed Stevenson, supra, holding in applied Court crime was instead of mur- that: might ap- der. . . The . evidence pear situation, then, simply only the court to be over- “The in which killing in whelming taking to show that the was of man- issue murder, is proper, fact and not or an one from the Case, yet, performed defence, which, act in self as ruled the Stevenson rele- is- long so as there there is was some no ‘evidence relevant protect lant) ‘shot to himself manslaughter’ or no ‘evidence sue of knife,’ warning after upon the issue of tending bear fairly ceased to cеase his attack. manslaughter.’ * * * * * * put -theory “Thus was into case appellant in fear acted or terror of contends “The Government being great bodily killed or done harm. . . . present case the facts possible interpre- susceptible hut two One, appellant was not that the
tations:
*
*
*
*
*
*
self-defense;
he acted in
guilty because
represents
.
.
“The verdict
.
other,
guilty of murder
that he was
provocation
for terror
conclusion
hence, that
degree,
first or second
justify
killing,
was not sufficient to
provocation in a heat of
killing
sufficient to raise a reasonable
but was
necessarily inconsistent
appellant
doubt that
slew malice.
.
.
. The two
facts.
doc-
leading
expounding
case
“The
mutually
and inconsist-
are not
exclusive
Kidd,
jurisdiction
trine
is State v.
.
sufficient
ent.
.
.
Provocation
men-
.
...
.
In that
resulting
and a
produce a heat of
terror,
provocation
special
tion of a
may give such charac-
of malice
absence
physical circum-
additional to the mere
it man-
ter
as to make
understand,
stances.
how-
We do
may,
slaughter;
provocation
the same
ever,
exhausted itself
the doctrine
circumstances, jus-
slightly varied
under
on the facts of that case.
It has been
tify
person
killing
self-defense.
applied in
was no such
cases where there
pro-
passion may be
. Heat of
Diaz,
special provocation.
Cf. State
-rage
as
duced
fear
well
36 N.M.
going
get
his
gun
three
automobile
quarrel
weeks after a
wherein the deceased
It
“That decision was well considered.
had threatened the defendant. The court
plants
authority.
itself
reason and
there reasoned as follows:
a num-
It has
followed in
important
good
ber of
no
question
cases.
seeWe
“The
to be determined is wheth-
for,
many against, reopening
reason
er
not the
bring
facts
the case within
question.”
rule
to the
effect
defendant
inwas
such ‘terror’ that
it constituted
Lopez,
State v.
79 N.M.
passion’
‘heat of
as defined in
v.
State
held,
(1968),
quite
that court
is
“[I]t
Kidd, [supra] and
followed
other cas-
apparent
present
facts
that when
es, the
being
last
Simpson,
State
give
self-defense,
[su-
plea
rise to a
is not
pra].
The defendant relies
State
fails,
plea
unreasonable
if
the ac-
that
Hunt,
N.M.
P.
maintain-
guilty
cused should be found
ing that the facts
case at bar are
Plummer,
Also, in
manslaughter.”
State v.
similar
Case,
to those in the Hunt
where
44 N.M.
instructions. to- entertained act must have been an- person slain and not toward ward the
BUSSEY, J., concurs. other. BRETT, J.,P. in results. concurs INSTRUCTION III: provocation,” “adequate The term APPENDIX instructions, may consist used within these I: INSTRUCTION the deceased any improper conduct of naturally the defendant which that under toward You are further instructed murder, engendering reasonably the effect of had the crime of the facts of instructions, defend- sudden heat of within in these as heretofore defined Generally, felonious ant. those actions embraces lesser provoke an emo- degree manslaugh- themselves calculated homicide known as viоlence serious of this tional state from which ter. In such cases the statutes *8 ade- recognized as ordinarily in follows homicide as State define com- provocation, as quate degree perpetrated without sufficient first when or the trivial slight and death, pared that are and in a heat of with those design a to effect does manner, a deal of violence passion, in a cruel and unusual from which but determining whether weapon; usually result. In dangerous un- not by or means of or reason- provocation was sufficient such circum- less it is committed under the nature, оr able, ordinary human justifia- or stances as constitutes excusable time for the en- been sufficient fair not have men of recognized as average of men gendered passion have or subsid- cooled be disposition, should mind and average ed. standard, defendant unless the taken as peculiar weakness some
was shown to have infirmity temper which did of of or mind BRETT, Presiding Judge (Concurs in or cru- of heart not from wickedness arise results). words, threats, disposition. Mere elty of I that the failure the trial concur of or offensive gestures, or however menaces judge jury upon instruсt the the lesser insulting, do not reduce homicide Manslaughter included offense of manslaughter, but degree murder to first Degree requires, First under the facts of any with may connection be considered particular case, of this reversal improper of the deceased. other conduct cannot, however, I conviction. concur aggression by the de- or Personal violence of an establishment inflexible rule sufficiently violent to ceased of a nature whereby, objection, even over defense bloodshed, pain, threaten to cause causе or every “in future for murder may bodily harm the defendant wherein the evidence necessitates an in- adequate provocation. Both sufficient upon self-defense, trial court provocation passion of heat sufficient shall also instruct or first thereby must co-exist to reduce a caused degree manslaughter heat manslaughter. degree first as a lesser included offense.”
The majority opinion reasons that INSTRUCTION IV: absence of a fixed rule often leaves the trial requires appel- court doubt and “malice,” as that term is
The absence of
instructions,
еngage
finding proc-
late court to
in a fact
is essential
used
these
within
ess.
is clear
to me that
can
be no
first
for the homicide to constitute
application
principle of law without
manslaughter,
requires
that
examining
particular
the facts of
previously
fendant
have killed with
principle
ap-
is to
premedita-
purpose in
formed or deliberate
plied, and the
outcome
each individual
heat
Malice and
cannot
tion.
necessarily vary
particu-
case must
its
with
co-exist. The distinction between murder
lar facts.
is found in the
dividing line
malicious actiоn on
between
jurisdictions
In most American
pas-
hand
heat of
one
and action
by
is characterized
an intent
determining
sion on the
In
other.
whether
kill,
or an
bodily
intent to do serious
impelled by
the act which caused death was
however,
jury;
when
intent
formed
heat
all
malice,
sur-
as the result of
a reasonable
it is
rounding circumstances and conditions are
held that the
circumstances
reduce the
consideration,
to be taken
including
into
homicide to manslaughter. See, LaFave
previous relations and conditions connected
Scott,
Criminal Law
tragedy
as thоse existing
as well
jurisdiction
the rule announced
at the
killing.
time of the
As
other re- majority
Court,
of this
based
spects,
absence malice
recognition
“fear
the defendant must not
intentionally
must exist to
every
some
contributed
provocation
to the
so as to prosecution wherein an
opportunity
deceased,
have an
kill the
necessary,”
self-defense is
might be less in-
provocation
must have been the cause
appropriate than it is
applied
when
passion,
provocation
must have
law of this State. The Oklahoma
view
proportiоnate
to the manner in which manslaughter
pas-
committed in
heat
retaliated,
the defendant
and there must
sion is a minority one.
It is not enough
*9
employ
it
law of homicide does not
under the
of Oklahoma that
law
term “malice”
the suggested
as do
instruc-
the intent to kill was formed
that
shown
passion,
pas-
legal
tions.
of “mal-
Since
definition
the result of a reasonable
word,
ice”
lay usage
in-
differs from
it
destroy
as to
sion must be so
jury
in-
unfortunate to introduce it to the
kill
indeed render the mind
tent to
Thus,
when
capable
forming
way
intent.
the statutes at issue in no
re-
an
quire that it be
Suggested
Stat-
used.
instruc-
Titlе
of the Oklahoma
711(2)
one,
noted,
tion
utes,
number
defining manslaughter
the first
should be
states,
jury
forms
gree
perpetrated without a
“When
death,
design
a heat of
be “without
design
effect
manner,
death,”
effect
passion,
but
but in a cruel and unusual
be “intentional”
long
dangerous weapon;
ap-
as it is
means of
“without malice.”
proval
instruction,
of such
added)
an
(Emphasis
my opin-
Section
ion,
states,
the possibility
creates
Title
“Homicide
extreme con-
fusion
design
less
both
the mind
with a
to effect death
not the
the law of
perpetrator
was in a
because
homicide.
state
anger or
intoxication at
See, Up-
(Emphasis
added)
time.”
State,
9 Okl.Cr.
dike statutes, our if Under all clear that the defendant did form intent death,” “design prior kill effect act, giv- to the commission of the fatal ing of a instruction would be Bobby DEAN, Petitioner, Lee wholly in conflict with even such evidence though angry defendant was fear CRISP, Warden, Richard Oklahoma State when he acted. case the man- Penitentiary, Okla- State homa, given, instruction should not be Respondents. certainly not objection over No. H-75-251.
fendant. Appeals Court of Criminal of Oklahoma. agree I ordinary While will June indеed fit within the rule announced to- decision," day’s I believe those extraor-
dinary fact will fit situations which within the rule should not be decided until they
such time as I rec- come before us. ognize today’s that the rule announced
decision has in ease its favor extreme
application. cannot, however, I concur adoption its because I believe it to be an interpretation incorrect of the law and contrary very concept basic
each case is to determined its own facts.
Further, point I feel constrained out majority its decision offers at- tached general examples instructions as
and not as every models to be followed in particular. statutory defining Our scheme