People v. Berry

NAME:
People v. Berry, 18 Cal.3d 509, 1976

FACTS:
· Δ did not deny strangling his wife (Rachel), but claimed through his own testimony and through the testimony of a psychiatrist, Dr. Blinder, that he was provoked into killing her b/c of a sudden, uncontrollable rage so as to reduce the offense to one of voluntary manslaughter.
· Upon returning from Israel, Rachel announced to him that while there she had fallen in love with another man, Yako, and had enjoyed his sexual favors, that he was coming out to this country to claim her and that she wished a divorce.
· Thus ensued a tormenting two weeks in which Rachel alternately taunted Δ w/ her involvement with Yako and at the same time sexually excited Δ, indicating her desire to remain with him.
· 7/26 – Rachel returned to the apartment and asked Δ if he was going to kill her, in which he alternated between ‘yes’ and ‘no’ finally saying ‘I have really come to talk to you.’ Rachel began screaming and after several attempts to quiet her, a struggle occurred and he strangled her w/ a telephone cord.

PROCEDURE:
Δ was charged by indictment with one count of murder and one count of assault by means of force likely to produce great bodily injury. A jury found Δ guilty as charged and determined that the murder was of first degree. Δ was sentenced to state prison for the term prescribed by law. He appeals from the judgment of conviction.

ISSUE:
Was there sufficient evidence in the record to show that he committed the homicide while in a state of uncontrollable rage caused by provocation and therefore the trial court was in error by failing to instruct the jury on voluntary manslaughter as he had requested?

HOLDING:
YES. The record contained sufficient evidence that the homicide was committed during a state of uncontrollable rage cause by provocation (prolonged periods of teasing or taunting) and therefore the trial court erred in failing to instruct the jury on voluntary manslaughter as the Δ had requested.

REASONING:
· V.M. as defined by statute is “the unlawful killing of a human being, without malice…upon a sudden quarrel or heat of passion,” §192.
· … this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances … for the fundamental of the inquiry is whether or not the Δ reason was, at the time of the act, so disturbed or obscured by some passion … to such an extent as would render ordinary men of average disposition liable to act rashly or w/o due deliberation and reflection, and from this passion rather than from judgment. –People v. Valentine (1946) 28 Cal. 2d 121, 169 P.2d 1.
· …verbal provocation may be sufficient – 28 Cal 2d at pp. 141-144
· Δ’s testimony chronicles a two week period of provocatory conduct by his wife that could arouse a passion of jealousy, pain and sexual rage in an ordinary man of average disposition such as to cause him to act rashly from this passion.

DISPOSITION:
Reversed the murder conviction and reduced it to voluntary manslaughter.

DISSENT:
None

EVALUATION:
This case defies the holding in Freddo v. State where the court held no language, regardless of how violent or offensive, is sufficient provocation for taking a life. I concur with the holding of Freddo because words cause no physical harm and the taking of another’s life is causing physical harm and thus an unjust vengeance.

SYNTHESIS:
In order for a conviction to be reduced to voluntary manslaughter, the following elements are required: (1) impulse of the sudden heat of passion; (2) provocation – may be (a) actions, such as infidelity, especially when caught in flagrante delicto, (b) words (prolonged periods of taunting and tormenting) – such that a reasonable person under the same circumstances would have acted the same way; (3) no period of cooling where the killer has sufficient time for the passion or emotion to wear off.

State v. Thornton

NAME:
State v. Thornton, 730 S.W.2d 309 (Tenn. 1987)

FACTS:
· Appellant found his wife, whom he was separated from, engaged in sexual relations w/ Mr. McConkey. This occurred pursuant to her informing appellant that she intended to date other people.
· Appellant is 5’6”, 125 to 130 pounds & suffered from a severe case of scoliosis in which he had surgery to correct that condition. Mr. McConkey, a former athlete was 5’9” & 183 pounds.
· Upon learning of McConkey’s presence, appellant returned home to retrieve his camera & a piston (in case McConkey decided to attack him).
· Appellant, when aware of the fact that his wife was engaged in sexual relations w/ McConkey, stormed into the room turned on the lights & attempted to take photographs of the incident. Fearing that McConkey was attempting to attack him, appellant drew his pistol & shot McConkey in the left hip.
· Appellant said he did not intend to kill McConkey (as evidenced by the fact that he did not aim at a vital organ) but simply to shoot him in order to disable him & also because of his outrage at the situation.

PROCEDURE:
Appellant was convicted of murder in the first degree after the jury rejected both defenses of the appellant.

ISSUE:
Do the facts of the case warrant a conviction of homicide greater than that of voluntary manslaughter?

HOLDING:
NO. The necessary elements of malice and premeditation were not demonstrated in this case to warrant a conviction greater than voluntary manslaughter.

REASONING:
· In a similar case, Δ, from the time he was informed of the assault until the shooting was done was greatly agitated and was not capable of cool and deliberate thinking and reasoning, and killed the deceased while in this state of mind…the fact that less than an hour had elapsed…there was hardly time for his passion to subside or cool…therefore there could not have been malice, express or implied.
· If the circumstances surrounding the case be such that are capable of producing such excitement and passion as would obscure the reason of an ordinary man and induce him, under such excitement and passion, to strike the blow that causes the death, the killing will be reduced to manslaughter.
· If there had been sufficient time for the passion or emotion of the Δ to cool before shooting, then the verdict of murder might be sustained.
· Appellant actual discovered his wife “in flagrante delicto” (Latin: “while the crime is ablaze”)…in our opinion the passions of any reasonable person would have been inflamed and intensely aroused by this sort of discovery.

DISPOSITION:
1st degree murder conviction is set aside and the cause will be remanded to the trail court for sentencing of the defendant for voluntary manslaughter

DISSENT:
DROWOTA, dissenting in part: The use of a firearm coupled with threatening statements supported the finding of malice to sustain a conviction for second degree murder

EVALUATION:
The court properly held that the facts didn’t warrant murder in the first degree as there was no evidence of malice or premeditation and there was significant provocation to warrant voluntary manslaughter.

SYNTHESIS:
In order for a conviction to be reduced to voluntary manslaughter, the act must not only have been done under the impulse of the sudden heat of passion but the provocation of the act must be such that a reasonable person under the same circumstances would have acted the same way. The court has held that no words, regardless of how violent or offensive, warrant the killing of a man. However, certain acts, such as infidelity, can substantiate provocation, especially when caught in flagrante delicto. There can also be no period of cooling where the killer has sufficient time for the passion or emotion to wear off.

Freddo v. State

NAME:
Freddo v. State, 127 Tenn. 376 (1913)

FACTS:
· π was 19 at the time of the incident and had been an orphan since he was 4. Later he lived in the family of a Nashville lady who raised him to be morally well trained (a quiet, peaceable, high-minded young man of a somewhat introverted disposition).
· Due, perhaps, to the loss of his mother at infancy and to his gratitude of his foster mother, he respected women beyond the average young man and detested language that degraded womanhood
· Deceased was part of a group that used obscene language, specifically the term “son of a bitch.” Also, deceased is shown to have been habitually foul-mouthed, overbearing, and “nagging and tormenting” in language, and at times in conduct.
· π requested on several occasions that the deceased desist using the term “son-of-a-bitch” especially when talking to him.
· Deceased, of learning that someone spilled oil on his toolbox, assumed it was π and called him a “son of a bitch”
· π, after hearing this, seized a steel bar, swung and struck deceased on the side of his head killing him shortly after arriving at the hospital.

PROCEDURE:
π was indicted in the criminal court of Davidson County for the crime of murder in the first degree and was found guilty of murder in the second degree. His sentence was fixed at 10 years imprisonment. A motion for a new trial was overruled, and appealed to this court for the errors assigned.

ISSUE:
Did the facts warrant a verdict of guilty of a crime greater than voluntary manslaughter?

HOLDING:
YES. While π’s act was committed under the impulse of sudden heat of passion, it did not suffice to reduce the grade of crime from murder 2 to voluntary manslaughter because the provocation in which elicited the act was not such that an average reasonable man would commit the same act

REASONING:
· The law tests the adequacy of the provocation based on the mind of an ordinarily constituted person of fair average mind and disposition.
· The rule in this state regards no language, no matter how violent or offensive, as sufficient provocation for taking life.
· It was apparent to the court, based on the facts, that the blow was struck by π in error in sudden anger and passion, aroused by the repeated use of the term “son of a bitch” and in a tone that made it offensive.
· Proof also indicates that pursuant to the warnings and prior to the murder, the two had been on amicable, but not familiar, terms.

DISPOSITION:
Affirmed. The court recommended to the Governor of the state that his sentence be altered to such punishment, in the light of the record and opinion, to be proper. The court allowed 10 days from the execution of the sentence for application.

DISSENT:
None

EVALUATION:
Provocation is defined as something, such as words, that affects a person’s reason and self-control. The question here is whether or not the use of the term “son of a bitch” would provoke a reasonable person to commit the same act. The jury, supported by the court, properly held that, while the π had continually requested that the deceased desist using the term, such language interpreted by a reasonable person would not warrant the killing of a man.

SYNTHESIS:
In order for a conviction of murder 2 to be reduced to voluntary manslaughter, the act must not only have been done under the impulse of the sudden heat of passion but the provocation of the act must be such that a reasonable person under the same circumstances would have acted the same way. The court has held that no words, regardless of how violent or offensive, warrant the killing of a man.