This instruction should be given if the defendant has raised heat of passion manslaughter as a defense to murder in the first degree and evidence supporting this defense has been introduced at trial. In cases where heat of passion manslaughter has been charged as a lesser included offense to murder in the first degree, the trial court should also give OUJI-CR 10-23 and 10-24 relating to lesser included offenses and the appropriate jury instructions on murder in the first degree in OUJI-CR 4-61 through 4-63 and heat of passion manslaughter in OUJI-CR 4-95 and 4-97 through 4-101. This instruction should be given after the heat of passion manslaughter instructions.

The Oklahoma Court of Criminal Appeals noted in Hogan v. State, 2006 OK CR 19, ¶ 45, n. 14, 139 P.3d 907, 925 n. 14, and Black v. State, 2001 OK CR 5, 21 P.3d 1047, 1067 n. 17, that more specific jury instructions on the relationship between murder in the first degree and heat of passion manslaughter may be desirable. See also United States v. Lofton, 776 F.2d 918, 921-22 (10th Cir. 1985) (reversing murder conviction because the jury instructions did not specifically distinguish heat of passion and malice "as inconsistent mental states or inform the jury that finding one necessarily precluded finding the other").

(1/2007 Supp.)