*1 163 particular regulation required in which 610 P.2d extremely the installation of handrails on Idaho, Plaintiff-Respondent, STATE precipitous stairways. long and v. hand, Boise, City of on other GRIFFITHS, Thelma that, other adopted building among code Defendant-Appellant. things, required the installation of handrails No. 12367. stairways.
in This determination Supreme Court Idaho. mere required handrails should be was not a City off-chance determination Boise 3, 1980. April Rather, adopted Council. Boise had Rehearing May 1980. Denied provisions of the edition Uni- Building (Code),2 form con- Code requirement
tained the for handrails 3305(i). The Code stated that it first
§
published by Building the Pacific Coast Of-
ficials and that it has Conference every years 1967.
been revised three thru
Testimony major at trial indicated buildings
percentage in the United Code,
States are covered purpose setting stan- up basic these regula- “maintaining safety
dards was life public buildings.” all
tions for From this it
readily City follows that the Boise ordi-
nance, although negli- could establish se,
gence per on admissible as evidence See, negligence. g.,
the issue of e. Frazier Co., (5th
v. Continental Oil
1978); Railway St. Louis-San Francisco Co. Burlison, 280 (Fla.App.1972); So.2d Horton,
Jorgensen (Iowa N.W.2d 100
1973); Rolling Nordstrom v. White Metal &
Stamping Corp., 75 Wash.2d (1969); Co., Vogel Steamship Alaska (1966). Wash.2d rejec-
Because cannot be said that building Boise code falls into the
tion error,
category harmless I am unable
join affirming. the Court in adopted Building the Uniform Code a statewide basis I.C. 39-4109. § *2 Kerr, Williams &
Dean Williams of Clarke, defendant-appellant. Blackfoot, for Gen., E. Lynn Atty. Leroy, H. David Boise, Gen., Thomas, Deputy Atty. plaintiff-respondent.
SHEPARD, admissibility Justice. expert testimo ny discretionary trial with the court. appeal This is an from a conviction Crook, State Idaho involuntary manslaughter after trial. (1977); Johnson, charge, verdict and conviction arose out P.2d 295 absent an abuse of defendant-appellant Thelma Griffiths’ *3 discretion, a decision will not be disturbed shooting admitted of .22 her husband with a Nelson, appeal. on Stoddard Idaho handgun. caliber (1978). P.2d We find no abuse April, Joe Griffiths arrived home of discretion. at night argument late and an with appel- lant ensued. When Joe Griffiths went into Here, permitted the witness was clothes, change bedroom to his the appel- testify to on the effects of fear on an lant argument followed and the continued individual, whether, not to in his during pushed appellant. which Joe the opinion, appellant the was in a state of fear According the appellant’s testimony, to she shooting. necessity at the time the of The opened intending an armoire obtain to her expert testimony to is confined matters purse, grabbed gun but instead the which requiring special knowledge skill and not placed had in period she the armoire a short scope understanding within the of of ordi of time before. She testified that her hus- nary persons untrained up who make lunged band Joe her toward with the same Owens, jury. g.,E. 112 Ariz. expression on his face that she had noted on (1975). Here, the witness was previous occasion when he had choked her testify asked to neither the about mental insensibility. to near appellant The fired competency appellant nor in the com gun the five times. Four bullets hit her parlance mon as to whether she was legally husband. Two of the shots would have Rather, sane insane. it is clear from the been fatal if no others been fired. Ac- sought psy record that counsel to elicit the cording testimony, stag- her her husband opinion appellant chiatrist’s the gered against her the two fell into an fear motivated at the time she shot her adjacent Appellant bathroom. admitted Further, husband. the record clear is shots, firing the the of but contended that explanation of the witness that his tes shot her husband because she feared for timony would been based state her life thus argued self-defense the- appellant ments of the and the witness’ ory. judgment appel of the truthfulness of Appellant was charged with the crime of lant’s statements. degree second jury murder and a trial was Fear is a common human within emotion held on charge. appro- The understanding and hence ex- priately instructed on included offenses pert psychiatric explanation neces- charge of second murder sary. juryA is as capable psychiatrist as a appropriate verdict form was submitted. determining the ultimate fact in this Appellant was guilty found not appellant case—whether acted under fear murder, charge of but was of found Regardless when she shot husband. charge involuntary included man- training a psychiatrist, expertise his slaughter. Upon conviction she was sen- qualify does not him to determine whether years prison. tence to a term of three any the defendant under killed fear more Appellant appeals both the conviction and qualifies than it him testify as to wheth- length sentence. er the “intended” kill. defendant The Appellant assigns first to the error trial court in excluding trial did not err psychiatric court’s refusal admit certain testimony. relating evidence to defendant’s state fear at the shooting. Appellant assigns time of the trial next error rejection testimony court’s relating of the tendered the instruction of the court to self- did not constitute error. defense. Appellant asserts that the instruc here, We
tion
which states that homicide is
turn now
more substantial
justified
portion
appeal. Appellant
unlawful
committed
asserts
when
herself,
argument
person
closing
prosecut-
that the
by a
lawful defense of
ing attorney
prej-
constituted misconduct so
nearly
to an in
erroneous
identical
udicial as
amount to reversible error.
rejected by this Court in State
struction
Our review of the record discloses miscon-
P.
McGreevey,
attorney in
prosecuting
duct
clos-
(1909).
language reject
It
true
respondent
ing argument. The
State ar-
by McGreevey is included as a
ed
gues
argument
at most such
amounted
instruction in the case
self-defense
appellant
while the
as-
to overzealousness
automatically
bar. That does not
invalidate
deliberate miscon-
serts that
constitute
words,
utilizing
par
instruction
those
duct,
severely prejudiced
appel-
ticularly when it is noted that the instruc
eyes
jury.
lant defendant in the
rejected McGreevey
to discuss
tion
failed
*4
prosecuting attorney
language
literal
of the
appearance
danger.
The instruction
herein,
enough
need
be set forth
it is
to
not
adequately
here
informs
closing
say
argument
that his
referred to
validity
when
is
theory
one
self-defense
urged
facts which
and
were not
evidence
apparent
not actual
confronted with
which
on the
of the
conclusions
danger.
interpreted
Instructions must be
charge
would have
relevant to
been
in their context and not read as isolated
portrayed
He
the de-
first
murder.
Radabaugh,
v.
93 Idaho
sentences. State
having deliberately planned and
fendant as
727,
Rutten,
(1970);
471
v.
73
P.2d 582
State
in a
out the murder of her husband
carried
25,
(1952). Appellant
Idaho
Appellant finally contends the sentence of years imprisonment DONALDSON, J., three C. and BAKES and was an abuse McFADDEN, JJ., of discretion the trial concur. Smoot, suggested (9th 1977), denied,
1.
In
it was
that the standard
F.2d 585
cert.
435 U.S.
Cir.
California,
18,
Chapman
841,
131,
(1978);
v.
386 U.S.
87 S.Ct.
Unit
99 S.Ct.
BISTLINE, Justice,
by argument
dissenting.
duce him to obtain a verdict
anything except the evidence
upon
based
v.
Chapman
Even
of Califor
before
State
legiti-
the conclusions
case and
824, 17
nia,
18,
705
386
87 S.Ct.
L.Ed.2d
U.S.
mately
applicable
the law
deducible from
(1967),
Spencer,
v.
74
this Court
in State
”
to the same.’
(1953),
173,
with
Admittedly any three members of this debatable, recent, clear, clearly jurors Court can retreat from the enter- pronouncements and sound tained as to the guilt. State v. doubt defendant’s Spencer, supra, Haggard,1 and State v. su- What proof better there of that than that pra, insofar fair trial process as due under charged defendant degree with second concerned, the Idaho Constitution is murder, acquitted, acquitted and also doubt, without four doing members are so. voluntary manslaughter? However, opinion the Court’s men- What particularly incomprehensible tions, upon there is also this the obli- Court given opinion: rationale in the Court’s gation process to see that due under the language “The prosecuting literal of the federal constitution has not been violated. herein, attorney need be set forth it is enough say closing argument that his I. referred to facts which were not in evi- Although the opinion fairly Court’s re- urged dence conclusions on the cites the surrounding events the death of would have been rele- appellant’s synopsis husband and a charge vant to a of first murder. prosecuting attorney’s “improper,” “egre- portrayed He as having defendant gious, unprofessional reprehensible” deliberately planned and carried out the summation the jury, I am unable to murder of her husband in cold and agree with Court’s conclusion that “in manner, continuing calculated to fire view of the verdict of involuntary body shots into the of her husband while manslaughter, the closing argument of the helpless position was in a and pleading prosecutor could not have contributed to *7 for mercy.” that verdict.” Neither the authority case upon relied the foregoing statement nor Whether a is charged defendant with mur- logic support der, common the Court’s state- larceny, running sign, or a the stop law Smoot, ment. In State 590 as I have it known has never authorized a defendant, (1978), P.2d 1001 the prosecutor argue convicted to jury to the facts which rape, of evidence, contended that closing urge were jury not in and to the “[i]n argument prosecutor injected the per- predicated upon some into which are conclusions sonal that, comment and several references missing to an those facts. More than how- ever, of the knowledge completely irrelevant fact I victim’s of am at a loss to under- having the a eight defendant wife who was stand the Court’s conclusion that such im- pregnant months at rape proper the time of the and unfair misconduct was cured incident.” at Id. 590 P.2d at where jury’s guilty the verdict was —but Consonant the requirements Fahy degree prosecu- with of not of second murder. Connecticut, argument, says, State of tor’s so the might U.S. S.Ct. Court prosecutor L.Ed.2d this Court held have proper been had the Haggard opinion 1. In the is silent to it as which constitution makes reference to. tried,
charged first charge defendant with murder the And on this defendant was convicted, men- Then, Court, not which has been degree. gays “if a verdict the tioned, returned, and not convicted of the included decision,of guilty of had been our voluntary But manslaughter. offense course, (My empha- might otherwise.” be kept that when case must be in mind this sis.)2 particularly This is unfathomable. the jury, went to the instructions of the all, assume, Back must be the one must guilty court authorized verdicts of: having strange jury, the found belief that murder, degree voluntary man- second to the evidence insufficient sustain either involuntary slaughter, manslaughter; or degree murder or vol- conviction second guilt on guilty. not The last comment the untary put able manslaughter, then was to jury which the or innocence of defendant prosecutor’s out im- entirely of mind closing by prosecut- hear to proper statement of facts not evidence ing attorney at the tail end of which he conclusions, unjustified thereup- based said: on, rationally dispas- and was able “And submit that the shots fired in upon guilt sionately deliberate defendant’s range at Joe’s back were fired close involuntary manslaughter. Those attor- were fired at a time when Joe was on his neys one two who have defended even longer any threat to the knees be at the na- criminal cases will astonished I submit further that the evi- defendant. reasoning. ivete of such that the defendant in this dence indicates genuine, place In the first all know of guilty beyond doubt case reasonable real, existing tendency prose- degree of second murder.” overcharge, with the idea in mind cutors to total excerpt above is the sum satisfactory way opened that the thus unwarranted, improper, prejudicial or, case plea bargaining goes where the prosecutorial remarks alluded in the trial, allow room for a least opinion, but is the final such com- Court’s guilty of which the defendant verdict finds prosecutor’s ment which was made offenses— highest the second of included just As the closing before the retired. offense, a charge which often Supreme of the United States did in Court justified by evi- for which was that here, too, Chapman, I Court feel that term Prosecutorial discretion dence. fully opinion which dis- should release bench, upon well to the trial a term known of the com- closes the nature and extent many which articles have been written. ments, made, complaint leaving of which is de- prosecutorial Here discretion was that reviewing it to court3 to the reader or ought charged with de- fendant first justified this Court is determine whether murder, was, gree and so and so bound declaring proving be- “that burden charge in district court. over answer yond a reasonable doubt that error did however, There, following filing of an verdict has contribute charged with information defendant Although opinion sustained.” murder, following the fil- improper prosecu- first Court concedes transcript in preliminary district torial comments consisted of assertion court, evidence, then charge the trial court reduced the of facts not in the Court prosecuting attorney theorizes that degree. murder in second *8 just upon opinion ponder The the a firm belief that as trial 2. Court’s does subscribe give parties take had the verdict been the a direction would courts should endeavor voluntary manslaughter. which, guilty possible, when facilitates the tak- record ing reporter’s appeal to a of an without resort transcript, appellate I so that defend- an 3. am not naive as to believe likewise I believe that opportunity great, even-handedly present opinion or ant’s for review is further court should determined, good. higher enabling law made in this case —the even No a facts issues only being question questions whether the Courts readily if are court to determine there Chapman. mandated in followed standards of law which need to be re-examined. Nevertheless, I that it has. Court declares guilty this case. jury of the tributed to the verdict in “urged part conclusions on the charge say which to a For certain I cannot so believe would have relevant opin- It is degree “beyond impos- of first murder.” The Court’s a doubt.”7 reasonable however, then, hy- with its say ion inconsistent sible for me that the has dem- accurate, doubt, pothesis, factually onstrated, concedes beyond reasonable prosecutor portrayed that the defendant prosecutor’s comments did contrib- body as to fire “continuing shots into Chapman ute to defendant’s conviction.8 helpless while in a misconduct, her husband he was prosecutorial dealt not with as position mercy.” pleading for Such trial, mere error at but considered “whether clearly portrayal argument that was there can ever harmless constitutional to, have, probably intended could and most prosecutor’s error” and whether the miscon- did some of the influence members duct in was indeed harmless. that case into or the belief that defendant toward possessed of the malice which is an II. murder, degree essential second or inflammatory prose- remarks of malig- that she with an abandoned or acted damaging cutor enough were considered heart, bring may nant which also about a However, isolation. in this case necessi- degree conviction of second murder.4 ty patent for when one observes reversal Moreover, probably damaging more crime, appellant convicted
defendant, wholly unmentioned in the manslaughter, involuntary there opinion, logical Court’s is the result which was no evidence. argument such improper defendant’s had on
claim of self defense —absolute destruction.5 A. impossible say,
It is discussing propriety me to as do the Before of in- Court, others manslaughter on the that “there is not a structing involuntary possibility offense, prosecutorial reasonable mis- this case was an included first con- closing argument may conduct in have con- sider the of the opinion rationale Court’s given 4.The trial court’s instructions numbered “These the essential are elements mate- allegations charged and 19 second defined malice and rial in this crime case, murder: required State of and the Idaho is prove beyond each of these elements a rea- 17: Instruction No. sonable doubt.” killing “Murder is the unlawful of human being aforethought. with malice kept that, 5. It as must be mind even the express implied. “Such malice concedes, opinion Court’s instruction express It is when there is manifested delib- lucid, exactly greatly on was not self-defense unlawfully away erate intention take damage compounding the done defendant being. implied life of a It is fellow human (Further prosecutor. comments of dis- provocation appears, when no considerable infra.) point cussion of this attending or when the circumstances the kill- malignant an show abandoned Smoot, quoted language 6. The heart.” from State (1978). 19: Instruction No. case, “In this to warrant a verdict Degree you crime Second Murder Smoot, 861, placing Chapman 7. reliance evidence, beyond must find from the a rea- California, U.S. S.Ct. doubt, sonable that: (1967). L.Ed.2d 708 Defendant, “(1) GRIFFITHS, THELMA thought; with malice afore regard In this Smoot needs to be modified Idaho, “(2) Bingham County, on or recognizing appellate court’s declara- 29, 1976; April about abstract, might tion of a belief is not in the “(3) Knowingly, wilfully, unlawfully, inten- belief, religious be so with the State but that tionally, feloniously wounded JOSEPH E. demonstrate, record, beyond must on the GRIFFITHS, being, by shooting a human him improper reasonable doubt comments pistol; with a 22 caliber did not contribute the conviction. “(4) That JOSEPH E. GRIFFITHS died as a *9 wounding year of direct result the within one wounding. after such 172
relative
It is
thereto.
said that because the
involuntary manslaughter
tion on
—on
object
appellant did not
to the instruction
the
clear from
tran-
own motion—is not
involuntary manslaughter-
pro-
on
fact
script
the instructions conference.
—in
posed an instruction which included the Moreover,
it is now well established
involuntary manslaughter
charge of
—that
by
Idaho that fundamental error committed
precluded
raising
the giving
is
reversal
may
the trial court
be cause for
the
an
on appeal.
instruction as
error
objection
made at the
even where
However,
duty
a trial court has a
to
time of trial:
the
jury correctly,
instruct
this Court
an
for defendant failed to raise
“Counsel
rely upon
simply
not
failure of counsel
objection
the
the
to
cross-examination at
instructions,
propose
to
to
correct
failure
this
ordinarily
time
trial and
Court
object
instructions,
to
excuse
incorrect
assignment
this
would not consider
The pertinent
incorrect
instructions.
However,
obligation
error.
the
provided:9
statute
receive a fair
state to see that defendant
jury
19-2132.
“Instruction
—Re-
Pulver
trial
and fundamental.
primary
is
quests
(a)
charging
jury,
In
—
687,
State,
(1970)
74
v.
93 Idaho
all
court must state
them
matters
Commonwealth, Ky.,
v.
quoting McIntosh
Ei-
information.
necessary
law
for their
In case
(Ky.Ct.App.1963).
368
331
S.W.2d
party may present to
court
ther
in a criminal case
of fundamental error
charge
request
it
written
may consider
Supreme
Court
it
given. If the court thinks
correct
objection had been
though no
same even
not, it
pertinent,
given;
must be
if
trial,
cases)”
(citing
made at the time of
added.)
(Emphasis
must be refused.”
249, 251, 486
Haggard, 94 Idaho
v.
State
Beason,
267,
P.2d
v.
506
State
hardly be
260,
(1971). It can
con-
262
P.2d
(1973),
that the statute
this Court held
a
instructing
jury
on crime
tended
court:
requirement
on
trial
imposed
is
has been submitted
which no evidence
trial
requires that
provision
“This
the most fundamen-
than an error of
other
motion, pertinent
give, on its own
court
Jones,
As stated
State
tal kind.
may be
which the
instructions
8,
798,
(1975):
351 N.E.2d
App.2d
Ohio
respect
correctly
with
informed
charges on a less-
erroneously
a“If
court
charged
the crime
nature and elements of
when not warranted
offense
er included
principles appli-
legal
to the essential
jury may reach
by the evidence
ad-
evidence that
cable
fair,
not
compromise
This is
verdict.
Patterson, 60 Idaho
State v.
mitted.
a defendant
is
If
defendant.
Freeman,
(1939);
State
liberty
charged, his
the crime
(1963).” (Empha-
P.2d 632
by compro-
away
should not
dickered
original.)
sis in
crime which
another
upon
mised verdict
Obviously a
P.2d at 1348.
Id. at
State
is
no evidence.
supported
duty
instruct the
trial court has no
Loudermill,
206 N.E.2d
Ohio St.2d
[8
which in law
supposed
included offense
Bandy v.
(1965)];
also
see
offense. Such
and reason not an included
be refused.” kinds, voluntary two Manslaughter give did the instruc- The trial court Voluntary manslaughter involuntary. counsel, pointing requested by defense tion upon done killing,- an intentional one inclusive. Whether out that was over passion. I.C. heat of quarrel a sudden give an instruc- court in mind to trial year structing Ida- offenses. on lesser included follow- 9. amended in the The statute was 154, p. paragraph specifi- ch. ho Laws Sess. trial add another duty cally addressing in- court’s the trial
173
18-4006(1).
Woods,
Involuntary manslaughter
(1976);
§
is P.2d 424
State v.
278 N.C.
an
killing
may-
210,
unintentional
be
(1971);
State,
com-
179
358
v.
S.E.2d
Cullin
ways: (1)
mitted
several
in the commis-
State,
(Wyo.1977);
565 P.2d
v.
445
Smith
act,
sion of an unlawful
other
than the
(Wyo.1977);
Further,
clearly
Idaho case law
states
395(2).
41
the intent
Homicide
presumed
kill
C.J.S.
§
from the use of a deadly weapon, at least
undisputed
“Ordinarily,
evidence
where the circumstances show it was used
striking
intentionally
or shoot-
homicide
in such a
Anstine,
fashion as here. State v.
deadly
weapon
the deceased with a
169,
91 Idaho
418
(1966);
P.2d 210
State v.
any theory
inconsistent with
of involun-
Buchanan,
365,
In State 104 Ariz. Id. at evidence (1969), of P.2d 408 a defendant convicted conviction for gence indispensable a is sought be- voluntary manslaughter reversal it was involuntary manslaughter. Hence involuntary cause instruction man- no on offense for error to instruct on an responded: slaughter was given. The court and she should be there no evidence appellant her own “In statement discharged. gun of pulled indicates that she out 592, Brady, In Ariz. 461 P.2d v. 105 State purse her and fired it. rejected (1969), requests for 488 the court appellant fact intended to shoot. This types manslaughter both of instructions on man- involuntary nlakes an instruction on self-defense, finding over a claim of slaughter inappropriate.” there was evidence of malice but none of
Id. at 410.
provocation
no
act
unlawful
other than
State,
770,
v.
89 N.M.
provocation and stated: higher charged due to lack of evi offenses seriously cannot be maintained “[I]t negligence dence of or accident include Peo ‘necessarily manslaughter invariably is Gordon,, 460, Cal.Rptr. 10 110 ple v. Cal.3d in Different kinds included’ murder. Mendell, 906, (1973); v. P.2d 298 State dis- proof required to establish the are (1974); v. 111 Ariz. 523 P.2d State a situation tinct This is not offenses. (1974); Duke, P.2d 570 110 Ariz. instruc- where the lesser-included-offense Sorensen, Ariz. State evidence; it is by the tion was warranted Wilson, (1969); 215 Kan. State contrary to ... error submit (1974). . evidence Madden, Ariz. request for an instruction P.2d 39 voluntary man- conviction of “[A] manslaughter was denied involuntary on evidence slaughter where there no acciden though the defendant claimed even or heat of quarrel was a sudden there her, Since, according shooting. tal reversed, passion must be defend- gun grab the attempted to husband had Therefore, defendant’s discharged. ant discharge, it to thus caused from her and manslaughter voluntary conviction of negligence showing no the court found case, evidence of this where there was either stated that she on her passion, must quarrel or heat of sudden or innocent. charged guilty of murder as dis- likewise be reversed defendant from defend- of these cases resulted Most charged. be entitled to instructions claiming ants heat quarrel “Evidence of sudden offenses, the evidence where on lesser but . indis- passion, However, offenses. support did such voluntary pensable to a conviction for why should reason this there seems to be no manslaughter. where he a defendant’s favor apply that a from the record “It is clear verdict should or she maintains that have guilty of murder would verdict of higher offense been evidence. supported by substantial innocent. However, jury acquitted the defend- is consistent plea “The of self-defense homicide, and, erro- ant of Indeed, to kill or disable. with an intent instructed, him neously convicted described has been killing in self-defense This was did not commit. crime which he act; and affirmative, intentional remedy as an mistake, an unfortunate that self-defense courts even hold some affirming the unlawful does not lie killing, or intentional to cases of limited conviction.” in- at least is not ... No definition ordinarily applicable in the therefrom. should have been killing manslaughter case of a resulting voluntary from an act all, given one was which was but since given accidental and unintentional. an instruction plea requested . is not defendant self-defense [A] error, the latter curing inconsistent killing provocation purpose with a Its given. have been passion.” heat of should instruction *12 in case was one suggests refusal 40 C.J.S. Homicide 114. § in- could be a conviction of which there majority agreement. of case law is in manslaughter, which has belief voluntary Woods, 210, In State 278 179 N.C. S.E.2d in the record.” support no (1971), 358 a new trial follow- granted was original). in (emphasis Id. at 477-78 involuntary manslaugh- a conviction for Mexico, “it quite apparent ter. The court noted In New than an instruction involuntary manslaughter improper present give which was when facts are rise to self-defense, repeated not to new trial. plea of it is not unreasonable fails, that if plea accused should grounds defendant had
“If
reasonable
of
guilty
voluntary
found
manslaughter.”
necessary
believe
was
shoot
594,
882,
79
Lopez,
State v.
N.M.
442 P.2d
Terry
great
to save
or
herself from death
fact,
In
(1968).
597
harm,
“ordinarily evidence
bodily
she
excessive
did not use
requiring a submission to the
an
jury of
shooting
Furthermore,
force in
him.
plea
accused’s
self-defense will
one
call for
fighting
when
who is
in self-defense
submission
voluntary
manslaughter.”
uses excessive
force he is
of volun-
Plummer,
tary
614,
State v.
44 N.M.
107 P.2d
manslaughter.
.
.
. There was
319,
(1940),
320
Simpson,
State v.
in this case no
39 N.M.
evidence which would have
(1935).
justified a
P.2d
involuntary
verdict of
man-
slaughter.”
State,
Morgan
(Okl.Cr.
slaughter many were told in so guing honestly unreasonably that he words that the commission lawful thought deadly act force was needed in self-de- might produce death, an unlaw- affirmed, fense. court noting manner, ful or without due caution and such a belief does not reduce the crime to circumspection, would amount man- degree, plea lower and that a of self-de- or, slaughter words, in other that the act only fense to justify seeks a homicide. shooting, lawful, if might Prewitt, believed con- State v. 104 Ariz. manslaughter stitute the (1969), offense of if it rejecting a request for instruc- done in an unlawful manner or with- involuntary tions on manslaughter, after due out caution circumspection. Any noting that an unintentional act was con- theory guilt such offense, have been templated would by that said evi- “[t]he entirely unsupported act, the evidence or dence shows an intentional rather than legitimate fact, inferences be drawn an unintentional act. As a matter of involuntary self- man- defining one the defenses of defendant was statute slaughter.” repeated at This was defense.” Id. Young, 109 Ariz.
State v. Id. at claim instruc- where a similar The thrust of law seems to be rejected was no tions was there because at guilty of Thelma Griffiths was either act. evidence of unintentional voluntary manslaughter least However, acquitted her innocent. Commonwealth, 390 Finally, Shanks v. voluntary manslaughter. (Ky.1965), included the follow- S.W.2d 888 ing: III. state long “It been the law in this has thought opinion raises The Court’s that, present, kill is if the intention to merit, least a that there be some involuntary manslaughter doctrine raised, question by defendant’s contention place . in the case. *13 court erred in the instruction that trial gave
which it
on defendant’s claim
But,
shooting
in self-defense.11
was done
deadly weapon
“.
.
Where
was
.
a
all
opinion,
reads the
when
sentences
court’s
used,
where
accused
that
and
admits
whole,
are
a
of the instruction
considered as
protect
attempting
he
to defend and
was
there has
no error.
weapon, there is
deadly
with the
himself
McGreevey,
P.
argument
that
not
no
for
he did
room
person
it
made
clear that “a
by
taken
the result
the actions
intend
of
great danger,
clear
with
has a
confronted
him.
right
upon appearances
as
legal
to act
such
would influence the action
reasonable
that
actual
person.
may
It
turn out
no
ac-
By
testimony
“.
.
his
his
-
own
that
danger
him and
whatever confronted
taken,
disregard
merely
tion
in
dan
thing
only
apparent
the whole
an
another,
rights
or
of
indifference of
ger, but the law of self-defense does
defending and
purpose
but
a
until he ascertains
require man to wait
is
consist-
protecting
hardly
himself.
It
danger
apparent or real.”
whether the
is
what
say
doing
ent
that appellant
to
466-67,
(Emphasis
at
The final statement of the instruction
import
No. 22
the same
as
Instruction
jury
“killing
told the
must be done
objectionable portion
McGreevey
it is
under well-founded belief that
neces-
instruction, nevertheless,
prejudi-
it is still
sary
or great
to save one’s self from death
cially
against
right
erroneous
defendant’s
bodily
harm.” This
of the instruction
a fair trial in that it continued the theme
is not unlike an instruction which would tell
that the defendant’s actions had to be taken
right
that “the
of self-defense does
in a
“well-
belief that she acted under a
(defendant)
arise
until
done
belief
what she
was nec-
founded”
did
everything
power
in his
to avoid this neces-
essary
great
to save herself from death or
sity.”
portion
Such indeed was a
bodily harm —whereas the true statement
McGreevey
given
instruction
which the
of the law is that
herself of
in order
avail
objectiona-
particularly
Court
found
there
defense
must be found to have
ble:
fear,
acted in
which fear
that she
applied,
test
“This
not the
to be
danger
great injury,
apparent
of death
given
is not the rule to be
to a
as the
it making
danger
no difference whether the
placed
law of
man
under
self-defense. A
only
so
apparent,
long
actual or
apparently threatening
menacing
*15
apprehensions
of a
were those
reasonable
expected
act as
danger
only
a rea-
person.
sonably
person
act
prudent
would
under
surroundings.
my part
and
For
hold as to Instruc-
similar circumstances
would
ordinarily
component parts
tion No. 22 that the
con-
Under such circumstances
other,
bearing
with
flicting
has but a moment for deliberation and
one
the
“and
upon
they do,
jury
might
happen
subject
It
that as a
the same
as
the
decision.
so
grope
as
true
fact he
have done
left to
in the dark
matter of
could
things,
rule
to be
in such case.”
applied
number of other
and
of law
one
a
468,
thereby
danger
the
force and means which she believes to be
(1972), held that it
not binding
admissibility
testimony.
was
on a
of such
tes-
After
jury.
tifying
stating
the
issue and
insanity
impairment
mental disease or
from
reject
Nor
holding
do I
the
of State v.
existed,
psychiatric
defect
the
ex-
State’s
Neil,
359, 74
58 Idaho
P.2d 586
pert
to defendant’s
further
testified as
jury
where
is as
the
able to draw inferences
state
the incident in
of mind at
time of
from the
as
expert,
evidence
an
because
question:
matter is one of common observation and
experience,
may reject
the court
the testi-
opinion
have an
you
“Do
[Prosecutor]
mony.
apparently
The trial court
believed
as to whether or not the defendant has
this to be the case
Ackley
here. Dr.
did
any corrupt
seeking any
was
motive or
jury
admit
could itself decide
revenge,
having
that is
this state of mind
whether Griffiths told the truth when she
time
during
period
of time
stated
However,
that she acted in fear.
ejected
premises
from the
to the
this is not a sufficient basis for the trial
actually
were
fired?
time that
shots
ruling,
court’s
especially where the doctor
Yes,
opinion.
I
I have an
“A
believe
also testified that he had access to
data
jury
did not have and hence was more
able
ascertain the truth than
jury.
that,
opinion
speaking
a di-
“My
as
Nor
Ackley was,
does the fact that Dr.
me, feelings
anger
rect statement
effect, stating that Griffiths was telling the
happened,
about what
that this was the
truth as to her fear prevent admission of
motivation, therefore the behavioral .
testimony
his
hearsay,
as
for he did not
feeling
experi-
was the
that he
merely repeat her assertions but made his
arose,
out of
encing and
this his action
own independent diagnosis
on many
based
out
his extreme
If the
anger.
matter
factors. She was entitled to the benefit his
revenge
something
of before the
testimony might
confer on
version of
events,
know,
this don’t
he denied
the shooting.
previous difficulty.
It
objectionable
is also not
that Dr. Ack
behavior, however,
“I think his
ley would have testified relative to an issue
response
feeling
anger
direct
his
jury
find,
e.,
was to
i.
fear. “The
cause
effect
there was
direct
fact that the answer
opin
was the witness’s
relationship.”
ion on one of the ultimate issues for resolu
established
testimony
doctor’s
there
tion
does
not make
admis
nearly
techniques
identical
employment
sion of
wholly
such evidence
error
Ackley here. The
used
Dr.
those
prejudicial nature.” Davis v. Nelson-
and obtained his
Gerdau
Deppe, Inc.,
doctor interviewed
463, 469,
educational,
social, medical,
(1967).
history,
As was
in Bean :
said
He asked for Ger-
experience.
his work
person
“A
possessing
knowledge
skill or
description
his
dau’s
self-evaluation
qualifying
expert
generally
him as
an
involved, including his
shooting
there
express
opinion
allowed
to mat-
during and after the event.
feelings both
opinion
ters
when
in issue
would be of
insights into Gerdau’s emo-
gain
He tried to
appreciable help
finding
his atti-
adjustment and evaluated
tional
facts.”
*17
doctor, taking the
of
stress
tude
toward
I find the Gerdau case most on Thelma Grif- by Ackley Dr. those used contending There for the it was Gerdau, experts, the defendant’s condi- qualified fiths.13 The doctor testified in as here, that “these might readily tests are not definitive.” that he tion was such doctor in Gerdau inter- And genuine whereas fear than from rather from acted time, only during viewed Gerdau one which or vengeance desire from other a for undergoing Gerdau was all the stress associ- . purpose. malicious trial, Ackley ated with his here Dr.
interviewed Thelma Griffiths four times that trial upon at the fundamental “[I]t a total (and of over three hours interviewed evidence, in plea competent a not well). her children an hour as Consider- character, a which tends to show that that in Gerdau admit- ing judge the district defendant, at the he committed the time the testimony spite ted in of all the infirmi- act, possessed pos- either or did not overt it, ties inherent in upheld and this Court its specific mental state sess essential admission, I am persuaded unable to be that is admissible.” Ackley’s testimony Dr. should not have been admitted. Whether counsel made the State, In Fox v. 73 Nev. district court aware of the decision in Ger- (1957), it was said of dau does not appear. “[u]pon defendant’s state of mind that this may issue all evidence be con jurisdictions material
Other have allowed such tes- People, Battalino v. sidered,” citing Wells. Wells, timony. is People leading A case 587,199 (1948), 118 Colo. held that: 33 Cal.2d P.2d P.2d in concerning psychiatric said testimony rather, evi- “[Ejvidence insanity, of or that: dence of the condition of the mind jury could well materially crime, “[T]he aided accused at the time of the together by knowledge that, opinion circumstances, of surrounding with the portion Ackley’slengthy 13. A small of opinion Dr. testi- formulate based on reasonable mony similarity serves show both the of certainty patient medical that did act technique testimony: and the substance of the under a certain state of mind? give Yes, you “. . . May that, [Counsel]: Did Thelma say doing “A. I can. I history, history some of some course her and back- psychotherapy, you’re constantly reading ground in the of those tests? pattern response: only that of what the “A. Yes. patient says, pattern of emotional “Q. you history part And did use that as response you sense in them while your analysis diagnosis? And, they’re saying you if doing it. can’t detect it, yes. “A. As that, way therapy there’s no “Q. you And what else did use? you your interpretations things can direct My patterns “A. observations of her below level of immediate consciousness response, ways responding emotional patient. psychiatrist It’s a skill gave history. as she me that practice has to have. You it all the time. able, then, “Q. you Were course “Q. your opinion What is medical di- interview, insight subjective obtain agnosis to her state mind that date? patient into the to determine whether my impression “A. It was that she was she did have a fear state mind motivated motivated fear at the time that she shot . ? him. impression “A. Yes. That was the you “Q. opinion Do have an whether formed. “Q. you subjec- And did not the . . use these—this act or was not the insight you observing aforethought? tive physical were result of malice —the you observing, features that were acting “A. I don’t believe intonations, pitch tone and the acting malice. I believe she was in a self- you you . nervousness ? Did use way panic, protective and in in fear. subjective analyzing, diagnos- these tools patient? “Q. acting . . defendant was [T]he right. “A. Yes. That’s The same account great bodily injury under fear her life or given responses without the neuromuscular and therefore her reaction was in self-de- impress way. wouldn’t theme same . fense? tests, “Q. subjective Then these these “A. Yes.” tests, served, physical you these features that ob- medically you are reliable can *18 182 introduced, es- have before the purpose brought court could out that the
tablishing insanity,
prove
but to
was not to
jury that
doctor’s definition
intent
specific
was such that a
situation
court’s
legal authority.
taken as
The
is,
ab-
not entertained —that
to show
legal meaning
instruction as to
correct
any
premeditated
deliberate or
sence
adequately
would
advised
of malice
design.”
Similarly,
considered
jury.
if the doctor
(emphasis
original). And
v. 336 P.2d Cal.2d “gave a doctor opinion his requires final item which I believe A aforethought.” ‘medical essence’ of malice in the Court’s beyond that found comment allowing The court found no error re- investigation presentence is the opinion testimony: were Attached with the court. port filed correctly “The trial court overruled police and the two officers letters from testimony People’s objection by this cursory attorney. A deputy prosecuting gave interpretation the doctor ‘a medical highly letters were glance shows these principle.’ court did legal attempt to in prejudicial constituted judicial permit usurp the doctor to influencing the re-try effect case lan- interpreting legislative function sentence. rather, him properly permitted guage; Hayes, letter Reed The first was from opinion what he his explain meant He inserted Shelley. Police Chief of afore- malice that defendant lacked the evi- supported by several comments not thought.” dence, strange that as such found “[w]e Here, Ackley Dr. P.2d at 496 n.3. until the gun missing notice did not Joe acted have testified that Griffiths would death,” found morning of his and “[w]e fear, anger revenge, and without not in steps the back empty casing .22 cal. shell malice, “hostility, an- defined was re- perhaps gun when the colder, chronic mode or some more ger, fired out- it was basement trieved . fear.” Al- hostility rather than . . Hayes . .” definition, see if it works back to his legal is not the though this say that: or the went on was sufficient. Counsel explanation tedly only justified judge apparently under certain conditions. trial also 14. The (1962); Valdez, polygraph part by 91 Ariz. noting that a decision Vitello, telling 376 Mass. Commonwealth a defendant also indicative whether (1978); v. A. Juve- truth, yet generally Commonwealth into evi- N.E.2d is not allowed (1974); nile, developing Mass. N.E.2d appears trend There to be a dence. State, (Nev.1978). although allowing polygraphs, admit- Corbett toward *19 dangerous a that anyone person, and could find no to FITHS is “We reason for strictly with when her she she be dealt him.....Why didn’t should shoot that house, passed. might I also add oppor- the of sentence is plenty leave she had surprised that I would be tunity to do . followed I don’t believe so . [she] to- called to that same house the if I were him claimed She [into bedroom]. shooting.” night investigate another hitting asking been she he had her. Was gun . was for more? . . When the the prosecutor The final letter was from out pointed way at Joe he had no of other himself: . through the room but Thelma. striking feature of this case “The most hope all out to “We we aren’t called inability to real- face the the Defendant’s investigate the another homicide at Grif- . ity significance of her crime. fith’s residence.” show Griffiths will ever I doubt Thelma regret slightest next the remorse or Tony letter was . from Officer During Young. killing of her husband. paragraphs first and last suf- for the trial, the attempted fice to show his Defendant attitude: entire incident on dead blame the “Throughout investigation the entire of presented a well rehearsed husband. She GRIFFITHS, the death of Joe I came to the facts which contradicted version of injustice the conclusion that a great had police statement her earlier officers. occurred. From the that I moment was attempt this feeble to ration- We believe contacted on night shooting, of the way out of blame in this case alize her day the last of trial that Mrs. I felt dangerous view of herself indicates guilty GRIFFITHS was of first relationship to others. Thelma Griffiths murder. These were not conclusions that her caused appreciated has not acts by drawn the fact that I an investi- being. of a human were the death If she officer, gating merely nor that I probation, allowed a I feel prosecution witness. This conclusion brought would re-enforce her of rationalization by forth facts that point may her acts to a throughout witnessed investigation committing itself. deterred from further acts violence.” judge Since correctly granted a motion “I believe that Mrs. GRIFFITHS is imposed only strike these letters and guilty of first degree and that murder year three sentence against eight she should have of that found years by prosecutor, recommended charge. I believe that her actions on the cannot be said he abused his discretion night shooting premeditated were swayed or was his decision let- these aforethought. and occurred with malice However, ters. I do feel constrained placed I believe that Mrs. GRIFFITHS impropriety comment on the of such letters gun in the storage cabinet in the being presentence attached to the report. for purpose using bedroom Police, firearm later in the when evening prosecutors,15 Joe duty like have a apparently arrived home. As she public. did. Just as may given reversals Furthermore, I misconduct, believe that Mrs. GRIF- prosecutorial they so prosecutor, judi- judge, judicial they 15. An Idaho department, like a is a tion to the devoted cial See charged performance officer. Idaho 18. As § Const. Art. him with the duties Wharfield, 14, 17, 236 P. powers properly belong- and the exercise (1925), explains: 862-63 judicial department. While not making judicial plain him a officer in the sense “It that the intention the framers was, Constitution, judge, yet people being quasi if and of the not a it, court, adopting judicial away was to do with the office of officer or an officer that, attorney county, judicial department, district each least an officer creation, placing election, qualifications, charged powers properly with the exercise of office, tenure of belonging and duties of the office of thereto.” attorney district in that of the Constitu- *20 given police seizing APPENDIX misconduct TO DISSENT evidence, confessions, eliciting brutaliz- prosecutor’s remarks and Excerpts of ing suspects. may there be no tech- While comments. rights nical violation of Thelma Griffiths’ you Then heard of the stories several here, it is indeed a day sad when defend- defendant about her relation- Joe and virtually ant pursued attacked and so together she stated ship and how at times viciously by the very entrusted with officers that Joe story got violent. public safety, they to the extent that attempt would to influence the court to were his side of I wish Joe here to tell us disregard jury long considered as being story. portray don’t Joe as verdict— greatest protections one of our contin- individual, perfect but I if he was question —and punishment ue to seek that they feel painted picture as bad as the that has been is warranted. of him.
Here, too, even though letter of the [*] [*] sjs [*] [*] [*] directed that summation were not the result of mis- conclusion that tor’s final with the sidered in our prosecutor was “It Chapman clearly prosecutorial design summation, State of assessment the duty stricken, and calculation mentioned improper and zeal, California, clearly it must remarks in prosecutor forces the delivered supra prosecu- be con- at And The home is didn’t the defendant divorce him? didn’t afraid for her Ask [*] bad, her father Falls, yourselves she leave if he did [*] and always open life, visit said, [*] this him? all why with her “I love question: of those [*] If she was to her.” didn’t she my daughter. family [*] things, why If Joe there? [*] go to truly Why that Joe was There’s evidence show his assistants the accused and to see that about his he wanted to worried wife and impartial has a fair and trial. Counsel at, where she when she people must know and in a criminal case home, late, come if how constantly keep people would she was in mind represents he are with the come she come time. Per- only concerned didn’t home on by compe- haps you truth and the can infer this that Joe— facts established marriage. tent admissible evidence.” there was a little in the mistrust spoke Justice for a unanimous So Knudson Joe have the defend- worried about 372, 378, Storms, in State v. Court ant, but there’s evidence to show (1962). P.2d the defendant Joe. worried about She to know where at and what wanted Joe was pros- play important part Police doing and how he wasn’t home come criminals, so. But properly ecution of and recall a name on time. You woman judge; act their they may and Shirley Chesnovar. sat here on She collecting present- lies in facts and function stand, you ample oppor- witness had an authorities, proper not in decid- ing them to tunity appraise her and atti- demeanor appro- ing the offense committed and the telling tell whether she was tude and or not penalty. Pugh, 420 U.S. priate Gerstein v. said, “Yes, And she the defend- the truth. (1975). For 95 S.Ct. L.Ed.2d was worried.” went over and ant And she letters was the officers to written such Chesnovar, Shirley Shirley best; talked worst, terrifying. at presumptuous said, any “I romantic Chesnovar don’t have police conduct was inexcusable here error, your intentions towards husband. I don’t and, prose- even absent other discussed, get happily I’m misconduct, want to involved with him. already cutorial a new trial. married.” required could have alone the defend- Evidently satisfy this didn’t judgment should of conviction ant— reversed. time, the defendant point
At Honor, and reached in opened the armoire going MR. I’m WILLIAMS: Your object I think a .22 semiauto- grabbed to that statement. Exhibit State’s prosecutor prepared must remain within the pistol. to fire. matic And she arguing jury, realms of evidence in intentionally she gun took the She and that the of his own witness statement pointed pulled trigger. And and she satisfy was that it the defendant seemed to pulled again again trigger *21 and she felt that. better after gun longer could no again again. and The There empty. fire. It were no more Williams, THE COURT: Mr. the Court over, shells available. After this was Joe arguments instructed this lying mortally wound- the bathroom proper of counsel are not evidence and a ed jury only matter to be if and dead. considered counsel the evidence keep within and the sequence What was the of the shots? law. And the has heard that instruc- You decide. There were five shots fired. accordingly. tion and will guided (Mr. commencing Sorensen to indicate on continue, You sir. State’s maniken) Exhibit One shot you. MR. Thank SORENSEN: right hit Joe in (indi- the front about there
[*] [*] [*] [*] [*] [*] cating). One shot hit dresser, vase, against wall, pieces this and of it were out, pointed Also it was she stated later found here in (indicat- front of the dresser on, that she another reason took this was ing). Three hit Joe in the shots back. Shot going neighbor’s that Joe was shoot the blank, No. 3 was point almost fired almost dog following 14-year who was around a old up against body. his No. 4 was fired from dog by the female owned Griffiths that four—from two to away. four inches happened And to be in You can heat. infer No. 5 was fired four that, about to six inches things other too. You can infer away. The first shot was fired at other a dis- meanings why reasons she took greater tance than six inches. pistol put why she downstairs. ‡ ‡ ‡ I you now, invite your deliberations, argument The in the front ensued room look over the real evidence that we’ve (indicat- right this of the here house presented. pictures, Look over the look diagram 1). marked State’s Exhibit over Compare the wounds. them with the happened What argument then? The test firing results James Mason. Com- go ceased. bowling. Joe decided to He pare them, up and come with the story of bedroom, went into the and he was there how this place. event took And I propose minutes, undressing, for about five per- his now you story, to tell based on this evi- sonal items here bed (indicating). on the I dence, sequence shots, and I’ll suppose out, got bowling he his shirt his tell you the why reasons I up come with pants. kept I don’t know where he them. this sequence. T-shirt, on, Had his shorts sox. here, standing believe Joe was down undressing, While he was where there pulled. the bed. And the gun was the defendant? She was here in the said, rang God, first shot out he “Oh (indicating), thinking. front room She I’ve been he hit.” And raised his hands thinking waited five minutes. She was (indicating). what is he going And to do? contemplating her next actions. She stated go going Where is he go bowling she came in with him. The bedroom? place go. person There’s no argument again shooting But it wasn’t a ensued. of him argument argument standing normal time. The him is in front between he go Shirley again. got centered and the door. He’s towards around Joe her or something get But out. got this resulted in far more door. He’s He can’t do leaving the go anything. going serious than Joe room to Is he to stand there and bowling. be shot?
been shot in the back? Would he have woman, defendant, grab able to shot. He’s her. He’s He moves toward arms, would all the shots have body. her He is around the His touch wounded. hands range (indicating)? Yes. up high, point almost been here at close A shot is fired down. back, (indi- They down would have been. range, touching blank cating). Could she have reached around and fired that, Somewhere, just before perhaps her, into his side, back towards on this got to her and Maybe was missed. shot then on (indicating), this side and have the him; maybe gun, missed moved the she shots up crisscross and end implanted in the coming to- he started just fired —when she sternum? wild; her, I don’t know wards fired Is that explanation? a reasonable You But was missed. exactly where this shot decide. (indicat- and here when Joe was shot here His hands came ing), he was on his knees. wounds on There are There’s some Joe. knees, he body was on his and he *22 down knees, shins, some his his wounds on his threat, was longer he out was no elbow I you and his forehead. believe can commission, given proper if probably and that, suggest big guy pur- here’s this that attention, have lived— he would medical portedly physical relationship had with Honor, object Your I MR. WILLIAMS: her, actually defendant where he and hurt That’s not evidence— to that statement. yet he’s with all the the one wounds. He’s Well, purport to it doesn’t THE COURT: the one got body that’s all the marks his appro- be evidence. And and the four bullets. instructed, sir. priately Joe that. like I don’t think it occurred right. All MR. WILLIAMS: to inflict and unable was hit and wounded knees, is on his Joe MR. SORENSEN: af- injury to the defendant bodily grievous more, maybe trying maybe stumbling some her get to He couldn’t ter the first shot. hallway. to move into the her. He gun stop before she fired Again, Joe got there. was shot he recall, expert before you ballistics said If shot, know. I think and defendant she fired he stood when recall, glanced have (indicating). She could have right about they could have landed bounce bounced inside the Vicki’s bedroom door over here to the against here out door through that and he wall right about six feet here here. said fired the bullet (indicating). closed, door it But would could gun you so time she pulled her to fire those five shot and killed Joe Griffiths. listen what was You [******] look that predominant tape, transcript if trigger, you shots, on her mind at the want, what bothered four of which over and and decide you right fired have been All the shots could Well, you I—I think can I infer. What possibility, I don’t bedroom. It’s a was merely argumentative said and it’s not people two that know: only know. There’s evidence. You can decide yourselves. Griffiths. I submit the defendant and Joe Maybe you’ll decide first shot was the and, knees, very cold that Joe on his killing shot, right back, and then calculated, pulled trigger defendant reaching Joe into the closet when once; again; she fired again, Joe moved the shot why was fired and that’s knees, crawling on up; kept Joe his backed injure couldn’t —wasn’t able to the defend- (indicating). up and ended there ant. Maybe you’ll decide that. I don’t testimony to had show ample But, was, We’ve know. it whatever there was He was about big guy. a pretty Joe was body, four shots in Joe’s three of them nine, pounds. to 190 eight, five five Try back. to account that. Our struggle been a I submit And if there office has tried.
for the gun in the bedroom, would he [******] says be ex- Finally it that malice can Application the Matter of the for and pressed when there’s a deliberate intention Against Application Protest for Trans- away the unlawfully to take life hu- Right fer of Water No. 11-0290 in the being. Again, what was the man dominant Agricultural Name of Corpora- Products thing on mind? What did she do? She tion. gun, got pointed reached in it INCORPORATED, BEKER INDUSTRIES empty. it it fired until was I submit that formerly Agricultural Corpora- Products his Joe was on knees last two shots. tion, Applicants-Appellants, ****** go- You’ve heard the evidence. I’m not GEORGETOWN IRRIGATION go again. know over You our DISTRICT, position point. on this We feel did Protestant-Respondents. with aforethought malice kill Joe Griffiths. No. 12938. ****** Supreme Court of Idaho. shooting submit that the reason for April jealousy. jeal- this case was plain She was bragging ous of Joe about conquest. saying
I’m Joe did this. I know don’t if girl
he did in fact have a friend. But he
brought up. Now is that considerable *23 submit,
provocation no, in and of itself? I
it wasn’t. known about year. She’d it for a
They’d They’d talked about it. argu-
ments it. about She never shot before him.
This was opportu- different. She had an
nity to take five minutes of her time to ponder
think over and what she was going only do ingo room in the house
where gun she knew where the was and
then use it.
[******]
And I submit that the shots fired Joe’s range
back were fired at close and were
fired a time when Joe was knees longer
and no threat to the defend-
ant. I submit further that the evidence
indicates that defendant in this case is
guilty beyond a reasonable doubt second
degree murder.