State v. Leggroan

475 P.2d 57, 25 Utah 2d 32, 1970 Utah LEXIS 540

• Court: Utah Supreme Court
• Decided: September 30, 1970
• Docket: 12048
• Status: Published

Opinions

HENRIOD, Justice:

Appeal from a second-degree murder conviction, after a jury trial where defendant had been charged with murder. Affirmed.

Defendant shot her husband under circumstances reflecting a violent quarrel punctuated by unmentionable and unseemly language reflecting on the animal kingdom genealogy of the disputants. Some medical, psychiatric and psychologist men testified somewhat differently, as is wont to be the case many times, but there was a pattern of unanimity to the effect that the violence was the result of an unusual and uncontrollable urgence to inflict bodily harm or worse, the one upon the other.

Defendant urges that the instruction that told the jury the difference between murder and voluntary manslaughter was in error, and that had the instruction been correctly stated, the facts were such that “a conviction of the lesser offense of voluntary manslaughter was a strong possibility in this case.” Counsel’s contention is that the following instruction was erroneous because of the words set forth in italics:

The phrase “in the heat of passion,” as used in these instructions, means in a state of mind known as anger, rage, resentment, or any other mental or emotional disturbance of sufficient intensity as to render the mind incapable of cool reflection, and productive of such an emotional or mental state as to irresistibly compel an ordinary, reasonable person to commit the act charged. * * To reduce a homicide from murder to voluntary manslaughter on the ground that it was committed “in the heat of passion,” it must appear that such heat of passion was induced by an adequate provocation. And by “adequate provocation” is meant such provocation as in the ordinary experience of mankind may be reasonably considered sufficient to temporarily destroy an ordinary person’s reason and judgment, to such an extent as to be considered in view of all the circumstances an irresistible passion.

We believe and hold that the instruction as given, taken with the rest, was not in error or prejudicial under the facts of this particular case. An instruction that with little substantial difference has weathered the storm of scrutiny of some of the most outstanding skippers of criminal law since way back yonder in 1888, when in People v. Calton,¹ a weatherbeaten instruction, yet unreversed and seaworthy still, said:

* * * To reduce homicide to the degree of manslaughter on the ground solely that it was committed in the heat of passion, the provocation must have been considerable, in other words, such as was calculated to give rise to irresistible passion in the mind of a reasonable person.

This instruction was approved in Hart v. United States,² which cited the Calton case, and stated that “The rule is that provocation, in order to be sufficient, must be such as is calculated to produce hot blood or irresistible passion in the mind of a reasonable man.”

A comparison of the Calton instruction with the alleged objectionable instruction in this case is commended to the reader with the suggestion that any difference in sense and meaning scarcely would be discernible in the minds of a lay venireman, albeit noticeable in the mind of a lcudoed psychiatrist or a grammarian bent on hyper-technical articulation.

It could be that counsel’s objection to the instruction given, well and satisfactorily might be met by changing “irresistibly compel” to “provoke,” and “destroy” to “alter.” This author would make book that the switch would not rock the rock-ribbed jury system one whit from Maine to California.

We say all this to answer counsel’s point on appeal as to the wording of the instruction, which, had it been the only point, would have impelled us and does impel us to affirm the trial court. But there are other reasons for arriving at the same conclusion.

Counsel for defendant at the trial (not the one representing defendant on this appeal), did not take exception to the instruction which now is assailed for the first time on appeal. He says this was unnecessary and that the court should have noted the error sua sponte. He relies on State v. Cobo,³ in support of his contention. Our answer to such urgence is that in the instant case, we believe and hold that there was no such “palpable error made to appear on the record” as was extant in the Cobo case. We expressed our opinion along this line in State v. Mitchell.⁴ Furthermore, counsel’s contention appears to be without serious conviction in light of our holding in State v. Gallegos,⁵ where we said that “It is generally held, under ordinary factual situations, that where a jury finds a defendant guilty of a greater offense, the giving of an erroneous instruction on a lesser offense is not prejudicial.”

Defendant also appeals on the ground she was denied a fair trial by a jury, because the selection of the jury unfairly excluded a substantial segment of the community of which she was a part. Defendant was a colored woman.

The jury was selected from the assessment rolls.

There is no evidence whatever that the jury was selected by anyone in order deliberately to exclude anyone. The only suggestion of disproportionate selection amounting to prejudice is the happenstance that there were only ten women on a prospective panel of SO veniremen chosen from the assessment rolls, which certainly would not warrant reversal; and such suggestion hardly could be implied from the fact that defendant was black, because this court could almost take note of the fact that the black citizens in Salt Lake County would represent no more than two per cent of the population, give or take a point, — so few that it would not be unusual that one or more would not be selected by lot. The other conclusions drawn and stated by counsel are not supported by the record, but simply are gratuities. The authorities cited by defendant are so different factually as to have no application here. We believe and hold defendant’s second point to be without merit. (Emphasis added.)

CALLISTER, TUCKETT and EL-LETT, JJ., concur.

1 . 5 Utah 451, 16 P. 902 (1888).

2 .76 U.S.App.D.C. 193, 130 F.2d 456 (1942).

3 . 90 Utah 89, 60 P.2d 952 (1952).

4 . 3 Utah 2d 70, 278 P.2d 618 (1955).

5 . 16 Utah 2d 102, 396 P.2d 414 (1964).