*1 Plaintiff and The STATE Respondent, LEGGROAN,
Judy Carol Appellant.
No. 12048.
Supreme Court Utah.
Sept. 30, 1970.
Crockett, concurring opin- J., filed C.
ion. O’Connell, City, Lake phrase D. Salt for “in the heat of John appellant. instructions, as used these means in a state of anger, rage, mind known as re- Gen., Romney, Atty. Lauren B.
Vernon sentment, or mental or emo- Beasley, Atty. Gen., Asst. N. intensity tional disturbance of sufficient City, respondent. *2 as to render the mind of cool HENRIOD, Justice: reflection, productive of such an Appeal second-degree a murder emotional or mental state as to ir- conviction, after trial where defend- resistibly compel ordinary, an reasonable charged ant had Af- been with murder. * * person to charged. commit the act firmed. To reduce homicide from murder Defendant shot her under cir- husband voluntary manslaughter on the ground reflecting quarrel cumstances violent it was committed “in the heat of unseemly punctuated by unmentionable and it must that such heat kingdom language reflecting on the animal passion adequate of was induced an genealogy disputants. medi- of the Some provocation. by “adequate provoca- And cal, psychiatric psychologist men testi- provocation tion” meant such in as differently, fied somewhat as is to be wont ordinary experience may the of mankind times, many pat- the case but there reasonably considered sufficient unanimity of effect the tern the temporarily person’s an was result an unusual and violence the judgment, reason and to such an extent bodily urgence to inflict uncontrollable as to be considered in view of all the worse, upon harm or the one other. passion. an irresistible circumstances urges that the instruc We and hold that the instruction believe tion that told the the difference be rest, in as taken with the voluntary manslaughter tween murder prejudicial error or under the facts of error, in and that had the instruction particular An case. instruction that with stated, correctly such the facts were been little substantial difference has weathered “a the lesser offense conviction of scrutiny most the storm of of the pos voluntary strong skippers since outstanding of criminal law sibility contention in this case.” Counsel’s yonder way in when in back following er instruction was Calton,1 instruction, yet a weatherbeaten set forth of the roneous because words seaworthy still, unreversed and said: italics: 1. Utah 16 902 P.
* * * To say reduce the de- all We this to answer appeal on on as to the wording the instruc- solely committed in tion, that was heat which, had it only point, been the passion, must have provocation impelled would have us and impel does us words, considerable, in other to affirm the trial court. But there are ir- as rise to was calculated to arriving reasons for at the same con- passion resistible of a rea- mind clusion. person. sonable Counsel defendant at the trial This instruction was Hart v. (not the one representing on this States,2 case, United cited the Calton appeal), exception did not take provoca- stated that “The rule is that struction now is assailed for the first
tion,
sufficient,
in order to be
must be such
appeal.
says
time on
He
this was unneces
produce
as
calculated to
hot blood
sary and that the court should have noted
passion
irresistible
in mind of
reason-
sponte.
the error sua
He relies on State v.
able man.”
Cobo,3
support
of his contention. Our
urgence
answer to such
is that in the in
comparison
A
of the Calton instruction
case,
stant
we
hold that there
alleged objectionable
with the
*3
was no such “palpable
error
to
made
this case is commended to the reader with
on the record” as was extant in the Cobo
the suggestion that
difference in sense
expressed
opinion along
case. We
our
meaning scarcely
and
would
discernible
be
Furthermore,
line
v. Mitchell.4
State
lay venireman,
in the minds of a
albeit
counsel’s contention
to
without
be
in the
psychi-
noticeable
mind of a lcudoed
light
serious conviction in
holding
our
grammarian
atrist or a
hyper-
bent on
Gallegos,5
State
where we said that
technical articulation.
held,
generally
under
factual
It
objection
could be that
to
situations,
jury
that where a
finds a de
satisfactorily
well and
guilty
greater offense,
fendant
of a
might
by
“irresistibly
be met
changing
com-
giving of an erroneous instruction on a
pel”
“provoke,”
to
“destroy”
to “alter.”
prejudicial.”
lesser
is not
offense
This author would make book that
switch would not rock the
jury
appeals
rock-ribbed
Defendant
on the
system one whit from Maine to
by
California.
she
denied
fair trial
U.S.App.D.C.
(1952).
2.76
amounting prejudice happenstance is the The latter has been by stated this court only pro- that on a there were ten women to include a person, situation where a spective panel of chosen from SOveniremen “ * * * is conscious of the nature of rolls, certainly the assessment would the act he is committing and able dis- reversal; suggestion not warrant tinguish right between wrong hardly implied the fact that could be knows that yet will, the act is wrong black, defendant was this court because is, that power mind, governing of his could almost take note of the fact that the has been so destroyed that his County citizens would black it, actions are subject not beyond but are represent per no than cent more two his control.” definition, Under if the point, population, or take a few —so judgment accused’s reason destroy- are not be would unusual one by ed mental point disease to the where by not more would be selected lot. “irresistibly compelled” that his by drawn and other conclusions stated subject actions are not to his he would record, supported by the counsel are but be considered to have insane at the simply cited gratuities. are The authorities time the act was committed and therefore factually as are so different responsible. not held application to have no here. We and hold second true language defendant’s It of some added.) passion requisite (Emphasis without merit. cases indicates th'at the
to reduce a homicide CALLISTER, completely should and EL- overcome the TUCKETT LETT, to in the main JJ., the cases referred cluding concur. Jury (1963) ; Kirkham, see 7 1. State v. also State v. 108, Poulson, 213, P.2d 859 319 14 Utah 2d
36
opinion. But it'is
this,
submitted that the better
required
contrast
what is
in order
view is that
order
to constitute man
to reduce a
slaughter
necessary
will be
be heat
there
passion, upon
completely overcome nor that
reason be
adequate provocation, such that
ac
destroyed.
proposition
ability
cused’s
to reason and to
control
well
People:
stated in
Maher v.
will not
actions are temporarily so
ob
disturbed or
do to
entirely
hold that reason should be
scured as to raise a reasonable doubt that
overpowered
dethroned
by passion
so as
acting
with the intent
intelligent
a de
volition. Such
required
malice
for a
conviction
equiv
of mental disturbance would be
and/or
*
2
*
alent
insanity,
to utter
In murder.3
People
452,
(1902) ;
State,