dissenting:
I find that the trial court committed reversible error when it failed to instruct the jury on the lesser-included offense of Manslaughter in the First Degree. For that reason, Hogan’s Judgment and Sentence should be reversed and remanded for a new trial. In addition, I find that the trial court erred in allowing the State to introduce evidence of unadjudicated offenses during the second stage of trial to prove the aggravating circumstance of continuing threat. For these reasons, I dissent.
At trial, Hogan requested the jury be instructed on the lesser-included offense of Manslaughter in the First Degree. Hogan contends his account of the murder of Lisa Stanley, as contained in his confession, warranted such an instruction. After extensive argument by trial counsel and the district attorney, the trial court refused to provide the instructions on the lesser-included offense. Curiously, however, the trial court did provide the jury with self-defense instructions based apparently on the evidence in Hogan’s confession that Hogan’s hand was severely cut and that the victim may have *1165inflicted that wound.1 In my opinion, the trial court’s refusal to provide the requested instructions on the lesser-ineluded offense of manslaughter constitutes reversible error.
The trial court should instruct the jury on every degree of homicide where there is some evidence justifying an instruction on the lesser-ineluded offense. See Fowler v. State, 779 P.2d 580, 585 (Okl.Cr.1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1587, 108 L.Ed.2d 775 (1990); Lamb v. State, 767 P.2d 887 (OM.Cr.1988); Lee v. State, 700 P.2d 1017, 1019 (Okl.Cr.1985). When there is a doubt as to whether the instruction is warranted, the trial court should resolve that doubt in favor of giving the instruction. Jones v. State, 650 P.2d 892, 893 (Okl.Cr.1982); Tarter v. State, 359 P.2d 596 (Okl.Cr.1961).
Manslaughter in the First Degree is defined as a homicide “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; unless it is committed under such circumstances as constituted excusable or justifiable homicide.” 21 O.S.1981, § 711(2). To warrant manslaughter instructions Hogan’s confession must reasonably suggest he committed the murder in the heat of passion and without an intent to kill.
The State’s key evidence against Hogan was his confession and it is this confession that provides “some evidence” sufficient to warrant a manslaughter instruction. In his confession Hogan stated that after he and Stanley argued and after he kicked in the bathroom door, Hogan tried to leave Stanley’s home. Hogan said that as he was putting on his coat, Stanley returned from the kitchen and, without a word, “pushed” a knife at him. Hogan grabbed the knife but Stanley pulled the knife back inflicting a deep, painful wound on Hogan’s hand. Stanley swung at Hogan again and he grabbed the knife from her. When Stanley ran back to the kitchen Hogan thought she was going to get another knife. Then, Hogan said, he killed Stanley by stabbing her with the knife she had used to cut him.
During his confession, Hogan maintained that he did not mean to hurt Stanley. In describing the stabbing, Hogan spoke in the third person saying “It was stabbing her and I couldn’t stop him.” (App.Br.Ex. A at 4) Hogan stated that he did not realize he had killed Stanley until the next day.
To support a manslaughter instruction, the evidence must suggest the act was done in the heat of passion. In Oklahoma, the passion must be so great as to render the mind “‘incapable of forming a design to effect death ...’” Allen v. State, 821 P.2d 371, 374 (Okl.Cr.1991); LaFave & Scott, Substantive Criminal Law § 7.10. The elements of heat of passion are: (1) adequate provocation; (2) a passion or emotion such as fear, terror, anger, rage or resentment; (3) homicide occurred while the passion still existed and before a reasonable opportunity for the passion to cool; and (4) a causal connection between the provocation, passion and homicide. Allen, 821 P.2d at 374. See Oklahoma Uniform Jury Instructions-CR 456.
Personal violence or aggression by the deceased of a sufficiently violent nature may be sufficient provocation. “It is the general rule that passion resulting from fright or terror may be sufficient to reduce a homicide from murder to manslaughter and such a killing may be closely akin to a killing in self-defense.” Wood v. State, 486 P.2d 750, 752 (Okl.Cr.1971). A homicide may be reduced from murder to manslaughter when the defendant “believed that he was in great danger, even if he was not warranted in such belief or where the slayer although acting in self-defense was not himself free from blame.” 486 P.2d at 752.
In Williams v. State, 513 P.2d 335 (Okl.Cr.1973), the defendant shot his wife seven times. Defendant testified he thought his wife had a butcher knife and was afraid she would hurt him, so he shot her. As to why he shot her more than once, defendant said “ T just went blank and just stood there just pumping that gun ...’” Id. 337. Although *1166the defendant stated he did not intend to use the gun on his wife, a police officer testified that after the incident defendant indicated no remorse and said he was glad it was over. The Court found this evidence reasonably suggested manslaughter stating:
There were no other witnesses to the homicide other than defendant. The jury might reasonably interpret the evidence to show that the initial firing of the gun was caused by a sudden and unexpected attempt to attack defendant with a pair of scissors and fired by the defendant while in the heat of passion. The lack of premeditated design to effect death should have been submitted to the jury by a proper manslaughter in the first degree instruction.
513 P.2d at 338-339.
Here, Hogan contends he was provoked by Stanley’s threats and by her stabbing his hand. Hogan stated the stab wound hurt, and, after he grabbed the knife away from Stanley, he thought she was returning to the kitchen to get another knife. The stab wounds Hogan sustained were significant and required surgery.
The trial court gave some credence to Hogan’s claim that Stanley stabbed him because the trial court found the evidence was sufficient to instruct the jury on self-defense. Although a manslaughter instruction is no longer required whenever the trial court instructs the jury on self-defense, Walton v. State, 744 P.2d 977, 978-979 (Okl.Cr.1987), the fact that the trial court granted an instruction on self-defense indicates that the trial court found some evidence showing Stanley attacked Hogan. This finding weighs in favor of finding adequate evidence of provocation to allow the jury to address the issue of whether Hogan committed murder or manslaughter.
In addition, to receive a manslaughter instruction, there must be some evidence that Hogan lacked an intent to kill. Again Hogan’s confession — the State’s key piece of evidence — provides “some evidence” sufficient to warrant the giving of a manslaughter instruction. Hogan made the following statements in his confession: “I just went over to be friends, I didn’t come over there to do any harm and now I’ve got to pay ... it’s not fair,” (App.Br.Ex. A at 4); “I didn’t even realize that I’d killed her until the next day, all I knew was my hand hurt and she was dead,” (App.Br.Ex. A at 4); “I mean I didn’t do it on purpose, I can’t even sleep at night without waking up ...” (App.Br.Ex. A at 4); “I didn’t mean to hurt her,” (App.Br.Ex. A at 3); “it was like I wasn’t even there ... just somebody else ... it wasn’t even me.” (App. Br.Ex. A at 4).
Several cases demonstrate that Hogan’s declarations that he did not intend to kill Stanley is sufficient to warrant a manslaughter instruction. In Provo v. State, 549 P.2d 354 (Okl.Cr.1976), the defendant, during the course of a robbery, killed a store owner. In his statement to the police, the defendant stated he intended to rob the store owner, but not hurt him. Id. at 356. The defendant also expressed his hope that the store owner might survive. Id. The Court found defendant’s statement regarding his intent combined with his desire that the victim live was sufficient to warrant a manslaughter instruction. In Tarter v. State, 359 P.2d 596 (Okl.Cr.1961), the defendant shot a man twenty times. After the shooting, defendant said to the victim, who was still alive, “This will teach you to break up my home.” Id. at 598. Defendant mistakenly believed his wife was having an affair with the victim, and defendant’s main defense was he was not guilty by reason of insanity. A police officer testified that, at the time of defendant’s arrest, defendant stated he did not want to kill the victim, he “ ‘only wanted him to suffer as he had suffered.’ ” Id. at 599-600. When the defendant learned the victim had died he exclaimed “ ‘Oh, my God,’ and began to cry.” Id. at 600. Again, this Court found a manslaughter instruction was warranted. Likewise, Hogan’s statements, like the statements of the defendants in Provo and Tarter, reasonably suggest that Hogan lacked the requisite intent to kill.
As explained above, Hogan’s confession presented “some” evidence reasonably suggesting that Hogan committed the offense of first degree manslaughter. It may be that the jury would have found Hogan to be guilty of First Degree Murder even if they had *1167been provided with a manslaughter instruction. However, that is not the test. The test is whether there is some evidence reasonably suggesting that the lesser-included offense instructions are warranted. Hogan’s confession clearly provides some evidence of manslaughter. The trial committed reversible error in failing to provide the manslaughter instructions.
Further, I would like to reiterate by objection to the use of unadjudicated offenses to support the continuing threat aggravating circumstance. See Paxton v. State, 867 P.2d 1309 (Okl.Cr.1994). In my opinion, both the Oklahoma and the United States Constitutions prohibit the use of this evidence at sentencing, despite the fact that it may be relevant. Our Constitutions prohibit the infliction of cruel and unusual punishment and afford all persons due process of law. The admission of unadjudicated offenses at the sentencing trial violates both Constitutional provisions. See Steven P. Smith, Unreliable and Prejudicial: The Use of Extraneous Unadjudicated Offenses in the Penalty Phase of Capital Trials, 93 Colum.L.Rev. 1249 (1993); cf. State v. Bartholomew, 101 Wash.2d 631, 683 P.2d 1079 (1984). I would therefore also grant relief to Hogan based on the use of unadjudicated offenses to support the continuing threat aggravating circumstance.2
ORDER DENYING REHEARING AND DIRECTING ISSUANCE OF MANDATE
Petitioner, Kenneth Eugene Hogan, has filed his Petition for Rehearing which requests this Court to grant a rehearing in Hogan v. State, 877 P.2d 1157, 65 OBJ 2077 (Okl.Cr.1994). Appellant alleges that this Court has overlooked certain questions decisive of the case and duly submitted in reference to two propositions. These propositions are as follows, to-wit:
I. The Court’s Decision Regarding “Proposition I — The Trial Court Erred in Refusing to Instruct the Jury With the Defendant’s Requested Instruction Regarding the Crime of Manslaughter in the First Degree” Is In Conflict With Controlling Authority That Was Not Called to the Attention of the Court.
II. Appellant’s Death Sentence Should be Vacated Because the Aggravating Circumstance “Heinous, Atrocious, or Cruel” is Unconstitutionally Vague on Its Face and As Construed by This Court, and the Corresponding Jury Instructions Are Unconstitutionally Broad.
As it relates to Proposition I, appellant asserts that the trial court’s failure to instruct the jury regarding the crime of manslaughter in the first degree as a lesser included offense was error and cites in regards to this a case that was not cited in the original brief. Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991); further, the case of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Appellant’s position from the cited cases is that failure to give the lesser included instruction did therefore not allow a “third option” to be given to the jury when the evidence in the case supported a lesser included offense.
Appellant misreads the holding of the United States Supreme Court. The Court clearly held that the lesser included offense was not required when the evidence did not justify such instruction. It should be noted in this case that the jury was given a lesser included instruction as it related to self-defense and this clearly would be a “third option” for the jury. Beck held unconstitutional an Alabama statute that prohibited lesser included offense instructions in capital eases. That is not the case before us, the jury was instructed and given a lesser included offense option. Therefore, the requirements of Beck and Schad were met. Schad at-, 111 S.Ct. at 2504.
In the second proposition of error raised in the Petition for Rehearing, appellant again asks this Court to find that the aggravating circumstance “heinous, atro-*1168eious, or cruel” is unconstitutionally vague on its face. Appellant concedes that this Court has on numerous times held that such terms are not unconstitutionally vague but asks this Court to again reassess it prior holdings. This Court will not reassess its prior holdings and is consistent in that we do again make such finding, that the term is not unconstitutionally vague, and again cite previous holdings of this Court to that effect. Romano v. State, 847 P.2d 368 (Okl.Cr.1993), Fisher v. State, 845 P.2d 1272 (Okl.Cr.1992), and other numerous decisions.
Having examined the appellant’s petition and the briefs relating to the Petition for Rehearing and Motion to Stay Mandate, the Court finds that the petitioner’s Petition for Rehearing should be, and the same hereby is DENIED. The Clerk of this Court is directed to issue the mandate forthwith.
IT IS SO ORDERED.
. /s/ Gary L. Lumpkin
GARY L. LUMPKIN, PRESIDING JUDGE
/s/ Charles A. Johnson
CHARLES A. JOHNSON, VICE PRESIDING JUDGE
/s/ James F. Lane JAMES F. LANE,
JUDGE
/s/ Charles S. Chapel
CHARLES S. CHAPEL, JUDGE
/s/ Reta M. Strubhar
RETA M. STRUBHAR, JUDGE
. In Hogan’s confession, he stated that Stanley stabbed his hand inflicting a deep and painful wound. The State argued at trial that Hogan inflicted the wound himself when he was stabbing Stanley.
. The State introduced evidence of several unad-judicated offenses to support the continuing threat aggravating circumstance. The jury did not find that Hogan posed a continuing threat. However, relief is still warranted as this evidence may have improperly affected the jury's finding that the murder of Stanley was especially heinous, atrocious and cruel.