Morgan v. State

BRETT, Presiding Judge

(Concurs in results).

I concur that the failure of the trial judge to instruct the jury upon the lesser included offense of Manslaughter in the First Degree requires, under the facts of this particular case, the reversal of this conviction. I cannot, however, concur in the establishment of an inflexible rule whereby, even over a defense objection, “in every future prosecution for murder wherein the evidence necessitates an instruction upon self-defense, the trial court shall also instruct upon voluntary or first degree manslaughter committed in the heat of passion as a lesser included offense.”

The majority opinion reasons that the absence of a fixed rule often leaves the trial court in doubt and requires the appellate court to engage in a fact finding process. It is clear to me that there can be no application of any principle of law without first examining the facts of the particular case to which that principle is to be applied, and the outcome of each individual case must necessarily vary with its particular facts.

In most American jurisdictions voluntary manslaughter is characterized by an intent to kill, or an intent to do serious bodily injury; however, when that intent is formed as the result of a reasonable passion it is held that the circumstances may reduce the homicide to manslaughter. See, LaFave and Scott, Criminal Law 572 (1972). In such jurisdiction the rule announced by the majority of this Court, which is based upon the recognition that “fear or anger must exist to some degree in every murder prosecution wherein an instruction upon self-defense is necessary,” might be less inappropriate than it is when applied to the law of this State. The Oklahoma view of manslaughter committed in the heat of passion is a minority one. It is not enough *961under the law of Oklahoma that it be shown that the intent to kill was formed as the result of a reasonable passion, the passion must be so great as to destroy any intent to kill and indeed render the mind incapable of forming an intent. Thus, § 711(2) of Title 21 of the Oklahoma Statutes, defining manslaughter in the first degree states, “When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; (Emphasis added) Section 704 of Title 21 states, “Homicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication at the time.” (Emphasis added) See, Updike v. State, 9 Okl.Cr. 124, 130 P. 1107. Under our statutes, if all the evidence is clear that the defendant did form an intent to kill or a “design to effect death,” prior to the commission of the fatal act, the giving of a manslaughter instruction would be wholly in conflict with such evidence even though the defendant was angry or in fear when he acted. In such a case the manslaughter instruction should not be given, certainly not over the objection of the defendant.

While I agree that the ordinary case will indeed fit within the rule announced by today’s decision," I believe that those extraordinary fact situations which will not fit within the rule should not be decided until such time as they come before us. I recognize that the rule announced in today’s decision has in its favor extreme ease of application. I cannot, however, concur in its adoption because I believe it to be an incorrect interpretation of the law and contrary to the very basic concept that each case is to be determined upon its own facts.

Further, I feel constrained to point out that the majority decision offers its attached instructions as general examples and not as models to be followed in every particular. Our statutory scheme defining the law of homicide does not employ the term “malice” as do the suggested instructions. Since the legal definition of “malice” differs from lay usage of the word, it is unfortunate to introduce it to the jury when the statutes at issue in no way require that it be used. Suggested instruction number one, it should be noted, informs the jury that manslaughter in the first degree must be “without a design to effect death,” but may be “intentional” as long as it is “without malice.” The approval of such an instruction, in my opinion, creates the possibility of extreme confusion both in the mind of the jury and in the law of homicide.