State v. Jones

405 P.2d 514, 241 Or. 142, 1965 Ore. LEXIS 379

Opinions

O’CONNELL, J.

Defendant appeals from a judgment of conviction for the crime of murder in the second degree.

Defendant contends that the evidence precludes a finding of malice which is a necessary element in the crime of murder in the second degree as defined by ORS 163.020 (1).

①

The facts were as follows. The victim, Robert Bowman, and defendant were sitting at the counter in Ethel’s Cafe on Burnside street in Portland, where they were eating. They engaged in an argument over a minor matter. Aroused, Bowman laid down his knife and fork, removed his glasses, walked over to defendant, struck him and backed him against a cigarette machine, striking him several more times with Ms fist. While backed against the cigarette machine defendant struck Bowman with a knife. Defendant stabbed Bowman three times, once in the back. One of the thrusts was so hard that it caused the knife to enter Bowman’s body deeper than the length of the blade. Bowman did not employ a weapon of any kind. It is not clear whether defendant stabbed Bowman after defendant had worked himself away from the cigarette machine. A police officer who was in the restaurant at the time of the quarrel testified that “the deceased was leaning over the counter in a stooped position, and just at the minute I looked the defendant was withdrawing a knife from complainant’s back. He immediately slumped a little bit and the defendant jumped back across the Avail Avith the knife in a raised position.” BoAvman was only five feet four and one-half inches tall and weighed only 105 pounds. The eAddence does not disclose defendant’s size. The jury saw him and if he was substantially larger than Bowman that fact could be considered by the jury in deciding whether malice motivated defendant, as we shall explain later.

The question is whether on these facts the jury could find malice. Without malice the crime could be no greater than manslaughter. It is contended that malice is lacking in the present case because the facts inoontrovertibly show that defendant acted in the heat of passion as a result of Bowman’s assault.

It may be assumed that Bowman’s assault aroused defendant’s passion. But this does not dispose of the matter. The statute requires a provocation apparently sufficient to create an “irrestible passion.” As said in Mancini v. Director of Public Prosecutions [1942] L. R. (A.C.) 1, “the mode of resentment must bear a reasonable relationship to the provocation if the offense is to be reduced to manslaughter.”

Two variables must be weighed in relation to each other — the degree of provocation and the measures employed by the defendant in response to it. If the provocation consists of an assault, it may or may not be sufficient to make the defendant’s passion irresistible. The size of the assailant, the manner in which he approached the defendant, the language used, and other facts must be considered in judging the effect they might have upon the defendant or upon a reasonable man, depending upon whether a subjective or objective test is used.② On the other side of the scale must be weighed the instrument employed by the defendant to kill his assailant, the language employed by him, 'his size in relation to that of his assailant, and other facts.

It is the jury’s function to weigh these factors unless in the particular case the court can say as a matter of law that the defendant did or did not have an irresistible passion. Defendant assumes that the evidence in the present case establishes that he must have had an irresistible passion when he stabbed Bowman. The jury could have concluded otherwise. “Heat of passion” and “malice” are at best very vague terms which must be applied in the light of the legislative purpose in differentiating second degree murder and manslaughter. The differentiation apparently was made “out of the indulgence to the frailty of human nature,”③ recognizing that the provocation in some cases may be so great as to warrant a penalty less than that prescribed for murder. In deciding whether the defendant should be given the benefit of this recognition of the “frailty of human nature,” his conduct must be measured against the standards of the community. The jury is best equipped to apply that standard. The trial court properly submitted to the jury the question of defendant’s malice.

Defendant contends that the court erred in instructing the jury on the subject of self-defense. The alleged error relates to the following portion of the whole instruction: “The person asserting the defense must have been reasonably without fault in bringing on the difficulty which resulted in the death of the deceased.” The entire instruction on self-defense makes up approximately four pages of the transcript. It was explained that if defendant “provoked the assault, or if he was the aggressor in the affray, then he cannot justify the killing on the ground of self-defense, unless after provoldng the difficulty he was endeavoring to withdraw from it.” The court went on to say that “In such situation he would be precluded by his conduct of availing himself of the necessity which was self-imposed and which he brought upon himself.” Later the court explained that “the right of self-defense does not imply the right of attack and will not avail in any case where the difficulty was induced by the party himself.”

Admittedly, there was little evidence relating to provocation. The principal witness described the situation at the lunch counter just before the fatal fight began. He testified that defendant was “talking” and “making a lot of noise”; that “he acted tough, or something like that”; but that “he wasn’t bothering nobody.” The deceased “said in a nice way, ‘There are two policemen here’ ” to which defendant replied, “ ‘to hell with the cops, and to hell with you.’ ” Whereupon deceased got up from Ms seat at the counter and approached defendant and the fight ensued.

The instruction, taken as a whole, could not have left any doubt in the mind of the jury as to the applicable law.④ We hold that the instruction considered as a whole did not create reversible error.

Judgment affirmed.

ORS 163.020’ (1). “Any person who kills another purposely and maliciously but without deliberation and premeditation, or in the commission or attempt to commit any felony other than rape, arson, robbery or burglary, is guilty of murder in the second degree.”

In. the present case the jury was instructed in terms of an objective test, i.e., employing the standard of a reasonable man. See criticism of this test in Manslaughter and the Adequacy of Provocation: The Reasonableness of the Reasonable Man, 106 UPaLRev 1021 (1958).

Maher v. The People, 10 Mich 212, 219 (1862).

The following, which is only a part of the whole instruction on self-defense, made clear to the jury the defendant’s right of self-defense:

“In determining whether the deceased was killed by the defendant under the reasonable apprehension of death or great bodily harm, you should consider what would be the reasonable apprehension of the defendant in the situation in which, from the evidence, you find him at the time of the alleged killing of Bowman. You should consider all of the evidence relating to the position of the deceased and the defendant— that they were in at the time of the alleged commission of the act, together with all of the evidence bearing upon the scene of the conflict, as you have received it in the evidence produced. You should determine whether the defendant acted in the honest and reasonable belief that it was necessary to take the life of the deceased to preserve his own life or to protect him from great bodily harm. He had the right to act upon appearances if they would lead an ordinarily reasonable and prudent person in his situation to apprehend imminent danger to life or limb, and to resist such apparent imminent danger with sufficient force to repel the same. But the danger must have been so urgent that the killing was actually or apparently necessary to avert it.

“Whether there was real or apparent imminent danger of death or great bodily harm existing at the time of the fatal wound inflicted upon Bowman, is a question for you to determine from all of the evidence in the case, and the circumstances attending the affray, if you find there was an affray.

“If you find from the evidence that the defendant killed Bowman under such condition as warranted and caused a reasonable belief on his part that he was in imminent peril of life or great bodily harm, that he did not have- a reasonable opportunity to escape and avoid the affray, and that he killed the deceased to preserve his own life or to protect himself from great bodily harm, under the belief it was necessary for ■this purpose, then the defendant killed Bowman in self-defense, and you should return a verdict of Not Guilty. The reasonableness of this belief is to be determined from his standpoint, but it is a question for you, members of the jury, to determine whether he had sufficient grounds upon which to base such a belief. Now if you are satisfied beyond a reasonable doubt that this defense has not been established, then you should disregard it. The plea of self-defense does not, however, cast the burden of proof upon the defendant. The burden remains on the State and it does not shift. So, if you have a reasonable doubt as to whether the defendant killed the deceased in self-defense, you should resolve that reasonable doubt in favor of the defendant and acquit 'him.”