MANSLAUGHTER IN THE FIRST DEGREE -
CAUSAL CONNECTION DEFINED
"Causal connection" means that the provocation by the deceased must have caused the passion or emotion of the defendant and that passion or emotion must have caused the act which resulted in death.
Statutory Authority: 21 O.S. 1991, § 711(2).
The preceding instructions on "heat of passion" first-degree manslaughter should be given only where there is evidence that the killing was committed in the heat of passion. Walton v. State, 744 P.2d 977, 978-79 (Okl. Cr. 1987), overruling Morgan v. State, 536 P.2d 952 (Okl. Cr. 1976).
Similarly, where the proof demonstrates that the only offense for which the defendant could be convicted is misdemeanor-manslaughter, it is error to instruct the jury concerning homicide committed while in a heat of passion. Nickelberry v. State, 521 P.2d 879 (Okl. Cr. 1974).
Although there is language in an old case, Wood v. State, 3 Okl. Cr. 553, 571, 107 P. 937, 945 (1910), which suggests that the sufficiency of the provocation offered by the deceased is gauged solely from the standpoint of the defendant, and not from the perspective of a reasonable person, the instructions require that the provocation be such as to induce passion in a reasonable person in the position of the defendant. Despite the language of Wood this requirement is otherwise supported by the cases which define circumstances wherein the existence of a "heat of passion" negates the specific mental state requisite for murder. See, e.g., Wood v. State, 486 P.2d 750 (Okl. Cr. 1971) (fright or terror may be sufficient); Grindstaff v. State, 82 Okl. Cr. 31, 165 P.2d 846 (1946) (swear words or threats alone insufficient to provoke passion); cf. Ex parte Fraley, 3 Okl. Cr. 719, 109 P. 295 (1910) (cooling-off period measured objectively under reasonable-man standard as well as subjectively from point of view of defendant).
That the killing was intentional in any sense is not an element to be proved in "heat of passion" manslaughter. See, e.g., Cantrell v. State, 562 P.2d 527 (Okl. Cr. 1977); Husband v. State, 503 P.2d 563 (Okl. Cr. 1972); Wood v. State, supra; Grindstaff v. State, supra; Ex parte Fraley, supra; Ex parte Bollin, 3 Okl. Cr. 725, 109 P. 288 (1910).
The statutory terms require that the homicide be "perpetrated without a design to effect death" in order to constitute manslaughter in the first degree. The Court of Criminal Appeals has refused to construe this characteristic of the governing mental state as an element which must be proved beyond a reasonable doubt in order to convict for manslaughter in the first degree. Moreover, the court has consistently ruled:
In a prosecution for murder, where the court submits the issue, and the jury finds the defendant guilty of manslaughter in the first degree, although under the law and the facts the crime is murder, yet, if the defendant is convicted of a lower degree of homicide than that established by the evidence, no prejudice could have resulted to him and this court will not reverse a conviction because of such error.
Mayberry v. State, 94 Okl. Cr. 301, 303, 238 P.2d 362, 363 (1951). Thus, a defendant is precluded from arguing as error the fact that he was convicted of manslaughter under section 711(2) despite his clear intention to kill the deceased. See Washington v. State, 549 P.2d 1221 (Okl. Cr. 1976); Chiles v. State, 508 P.2d 1108 (Okl. Cr. 1973); Brewer v. State, 452 P.2d 597 (Okl. Cr. 1969); Young v. State, 33 Okl. Cr. 255, 243 P. 763 (1926).
Although the instructions delineate circumstances wherein the existence of a particular emotion in the defendant, engendered by the deceased's provocation, is a mitigating factor in a murder prosecution, there is a difficulty in interpreting the content of the elements of section 711(2) when the defendant is charged with manslaughter in the first degree. Two fact patterns, suggested by Oklahoma cases, illustrate the difficulty.
FIRST FACT PATTERN
The defendant, harboring no intent to effect death, determines to disable the deceased, temporarily; the defendant has held a grudge against his victim for a long period of time. The defendant deliberately aims a gun at the deceased's left knee and fires. The defendant is a poor marksman; the bullet pierces the deceased's upper leg, severing the femoral artery. Despite the defendant's attempts to aid the victim, death occurs within a few moments.
See Tarter v. State, 359 P.2d 596 (Okl. Cr. 1961).
Under these facts, murder in the first degree with malice aforethought is not an appropriate charge, absent proof of a deliberate intent to take the deceased's life. Felony-murder is excluded by the court's holding in the Tarter case that the felony forming the basis for the conviction must be other than a lesser included offense. The conclusion of the Commission is that the Legislature intended to effect a change in existing law regarding murder in the second degree, depraved-mind murder, section 701.8, as discussed in the Committee Comments pertaining to OUJI-CR 4-91, so that a second-degree murder charge is possible. Unless the underlying offense which could not serve as a predicate for felony-murder because of the independent felony requirement is sufficient to form a basis for a misdemeanor-manslaughter prosecution, section 711(1) does not support a potential charge. But see Ruth v. State, 581 P.2d 919 (Okl. Cr. 1978) (defendant convicted for misdemeanor-manslaughter in shooting death). Absent any conduct by the deceased constituting a felonious attempt against the defendant, section 711(3) is likewise eliminated. If the defendant is to be charged with a homicide offense greater than manslaughter in the second degree, section 711(2) must form the basis, unless a second-degree murder charge is available. Under these circumstances, the State must affirmatively establish "heat of passion" and "adequate provocation" beyond a reasonable doubt in order to convict.
SECOND FACT PATTERN
The defendant calls the police to report the death of his wife. He informs the officers that his wife, a chronic alcoholic who also ingested various barbiturates, was prone to stumbling and falling, and that she had fallen down, striking her head, several hours before he discovered her corpse.
The defendant is charged with first-degree manslaughter. At trial, it is established that death resulted from a subdural hemorrhage on the left side of the head, caused by an external force against the head that could have been the result of a blow or a fall. The defendant testifies that, although he had slapped his wife on a few prior occasions, he did not abuse her in any way on the night of her death.
See Hunter v. State, 478 P.2d 1001 (Okl. Cr. 1970). See also Moran v. State, 555 P.2d 1085 (Okl. Cr. 1976); Chiles v. State, supra; Husband v. State, supra.
Concededly, this case is more simple, for, assuming that the elements of assault and battery could be established beyond a reasonable doubt, a first-degree manslaughter prosecution is possible under the misdemeanor-manslaughter rule, section 711(1). Otherwise, the difficulty of determining the elements of the offense and the State's burden of proof remain.
OUJI-CR 4-96 follows the holding by the Oklahoma Court of Criminal Appeals in Brown v. State, 777 P.2d 1355, 1357 Okla. Crim. App. 1989), that heat of passion is an element of the jury instruction for first degree manslaughter "by means of a dangerous weapon" as well as "in a cruel and unusual manner." The Court of Criminal Appeals overruled its prior decisions to the contrary in Moody v. State, 38 (Okl. Cr. 23, 26, 259 P. 159, 161 (1927), and Smith v. State, 652 P.2d 303, 304 (Okl. Cr. 1982), and it adopted the interpretation of section 711(2) originally stated in Barker v. Territory, 15 Okla. 22, 25-26, 78 P. 81, 82-83 (1904).
A case illustrating circumstances under which death will be deemed to have been perpetrated "in a cruel and unusual manner" is Camron v. State, 829 P.2d 47, 51 (Okl. Cr. 1992) (sufficient evidence to prove homicide occurred in a cruel and unusual manner where deceased was beaten to death with a shotgun).