concurring in part and dissenting in part.
I concur in the reversal of the judgment of the Court of Appeals to the extent of its holding that the trial court correctly refused to instruct the jury on the lesser included offense of murder, a violation of R. C. 2903.02. The reversal of the Court of Appeals can stand on that ground alone.
However, I dissent from our reversal of the Court of Appeals to the extent of our ruling that the Court of Appeals erred in affirming the trial court for its refusal to instruct the jury on the lesser included offense of voluntary manslaughter, a violation of R. C. 2903.03. In short, it is my view that the trial court correctly refused to charge the jury on voluntary manslaughter.
*223R. C. 2903.03, which prohibits voluntary manslaughter, reads, in part, as follows:
“(A) No person, while under extreme emotional stress brought on by serious provocation reasonably sufficient to incite him into using deadly force, shall knowingly cause the death of another.”
The summary of facts contained in the opinion, and supported by the record, contains no evidence raising an issue for submission to the jury of “extreme emotional stress brought on by serious provocation reasonably sufficient to incite him into using deadly force* * *,” pertaining to the defendant. This extreme emotional stress factor is an essential element of the crime of voluntary manslaughter. The lack of it warrants a refusal by the trial court to instruct the jury thereon. Such refusal to instruct the jury prevents the jury from reaching a compromise verdict of voluntary manslaughter where the defendant obviously has committed the more serious crime of aggravated murder or murder.
The record reveals that the defendant murdered Martha Glasgow by shooting her in cold blood. Martha did nothing to provoke the defendant to commit this senseless shooting and murder. To rule that this cruel, inhuman, senseless, purposeful killing by defendant could support a conclusion by the jury that the defendant was “under extreme emotional stress brought on by serious provocation reasonably sufficient to incite him into using deadly force,” and thereby guilty of manslaughter only, is carrying the meaning of the language in R. C. 2903.03 to the ridiculous and absurd.
The victim, Martha Glasgow, had nothing to do with any claimed “extreme emotional stress” of defendant. This court should establish a rule of statutory construction that a voluntary manslaughter jury instruction should never be given to the jury when the victim had nothing to do with creation of any claimed “extreme emotional stress” of the defendant.
If the defendant in the case sub judice had a right to have the jury instructed on his “extreme emotional stress” so as to support a finding of guilt as to.voluntary manslaughter only, then it is conceivable that in every jury trial for aggravated murder or purposeful killing the jury should be instructed on voluntary manslaughter so that the jury might find the defen*224dant guilty of voluntary manslaughter only. This is so because in every case where a defendant purposefully kills another in cold blood, with or without prior calculation and design, the defendant must be under some form of “extreme emotional stress.” Otherwise it is inconceivable how a defendant could resort to the most heinous act imaginable by pulling the trigger of a gun to snuff out the life of another human being. Life is cheap when it is equated under such circumstances with voluntary manslaughter. It should not be so cheapened.
In fact it is a close call even to conclude that the Court of Appeals erred in affirming the common pleas court refusal to instruct the jury on murder, a violation of R. C. 2903.02. It is arguable that the common pleas court correctly refused to instruct the jury on murder because the facts so clearly support a finding of “prior calculation and design” in connection with the purposeful killing and that the defendant was thereby guilty of aggravated murder and nothing else.
If the concept “extreme emotional stress” should be applied as it has been here, then it is high time for the General Assembly to amend R. C. 2903.03, on voluntary manslaughter, so that juries cannot be misled into finding a defendant guilty of voluntary manslaughter when he should be found guilty of aggravated murder.
The decision this court has reached today on the issue of a jury instruction on voluntary manslaughter in this case is in conflict with our per curiam decision in State v. Durkin (1981), 66 Ohio St. 2d 158, wherein we stated, at page 160:
“Second, appellee was not entitled to a jury instruction on the offense of voluntary manslaughter because he failed to elicit any evidence of the mitigating circumstance of extreme emotional stress. Therefore, he could not have been prejudiced by the erroneous instruction.”
On remand of this case to the common pleas court, that court should not be required to give a jury instruction on voluntary manslaughter.
Holmes, J., concurs in the foregoing concurring and dissenting opinion.