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Show PAGE THE FOUR and stated that "The rule is that provocation, in oid?c to be such as is taLulated to produce hot blood or irrtfi-'- ' mind of a reasonable man." Utah Supreme Court Calendar TUESDAY, OCTOBER 13, 1970 MONDAY, OCTOBER 5, 1970 RECORD DAILY . - I. s' lB'f. : ;,v; f-. i ! ' A comparison of the Calton instruction with Mu: ij,c instruction in this case is commended to the reader wjM- n.,any difference in sense and meaning scarcely would bt ihs. err.i- ..e minds of a lay venireman, albeit noticeable in the mind of a kud.-epsychiatrist or a grammarian bent on hypertechnical artic.ulaiicn. . OCTOBER SESSION - - ! i - It could be that counsel's objection to the instruction giver, a ell and satisfactorily might be met by changing "irresistibly tomptl" to "provoke," and "destroy" to "alter." This author would make book that the switch would not rock the rock-ribbjury system one whit from Maine to Calm :ria. ed We say all this to answer counsel's point on appeal as to the wording of the instruction, which, had it been the only point, would have jin;:..;ud ..s ai.d does impel us to affirm the trial court. But there are other rtasc-rfoi arrivthe same at conclusion. ing s Counsel for defendant at the trial (not the one representing defendant on this appeal), did not take exception to the instruction which now is assailed for the first time on appeal. He says this was unnecessary and that the court should have noted the error sua aponte. He relies on State v. Cobo, m support of his contention. Our answer to such urgence is that in the instant rase, we believe and hold that there was no such "palpable error made to appear on the record" as was extant in the Cobo case. We expressed our opinion along this line in State v. Mitchell. Furthermore, counsel's contention appears to be without serious conviction in light of our holding in State v. Gallegos, where we said that "It is generally held, under ordinary factual situations, that where a jury finds a defendant guilty of a greater offense, the giving of an erroneous instruction on a lesser offense is not prejudicial." Defendant also appeals on the ground she was denied a fair trial by a jury, because the selection of the jury unfairly excluded a substanti 1 segment of the community of which she was a part. Defendant was a red woman. The jury was selected from the assessment rolls. There is no evidence whatever that the jury was selected by anyone, jn order deliberately to exclude anyone. The only suggestion of disproportionate selection amounting to prejudice is the happenstance that there were only ten women on a prospective panel of 50 veniremen chosen from the assessment rolls which certainly would not warrant reversal; and such suggestion iigrdiv could be implied from the fact that defendant was black, because this curt could almost take note of the fact that the black citizens in Salt Lake County would represent no more than two per cent of the population, give or take a point, - so tew lat it would not be unusual that one or more would not be selected by lot. The other conclusions drawn and stated by counsel are not supported by the re ord, but simply are gratuities. The authorities cited by defendant arc so different factually as to have no application here. We believe and held dtfeiidar'.s second point to be without merit. (Emphasis added.) In The Supreme Court Of The State Of Utah The State of Utah, Plaintiff and Respondent, No. 12048 FILED v. September WE CONCUR: 30, 1970 E. R. Callister, Judy Carol Leggroan, Defendant and Appellant. L. M. Cummings, Clerk Jr., Justice R. L. Tuckett, Justice HENRIOD, Justice: murder conviction, after a jury Appeal from a second-degrwhere defendant had been charged with murder. Affirmed. ee a Defendant shot her husband under circumstances reflectingviolent quarrel punctuated by unmentionable and unseemly language reflecting on the animal kingdom genealogy of the disputants. Some medical, psychiatric and psychologist men testified somewhat differently, as is wont to be the case many times, but there was a pattern of unanimity to the effect that the violence was the result of an unusual and uncontrollable urgence to inflict bodily harm or worse, the one upon the other. Defendant urges that the instruction that told the jury the difference between murder and voluntary manslaughter was in error, and that had the instruction been correctly stated, the facts were such that "a conviction of the lesser offense of voluntary manslaughter was a strong possibility in this case." Counsel's contention is that the following instruction was erroneous because of the words set forth in italics: The phrase "in the heat of passion," as used in these instructions, means in a state of mind known as anger, rage, resentment,, or any other mental or emotional disturbance of sufficient intensity as to render the mind incapable of cool reflection, and productive of such an emotional or mental state as to irresistibly compel an ordinary, reasonable person to commit the act charged. To reduce a homicide from murder to voluntary manslaughter on the ground that it was committed "in the heat of passion, " it must appear that such heat of passion was induced by an adequate provocation. And by "adequate provocation" is meant such provocation as in the ordinary experience of mankind may be reasonably considered sufficient to temporarily destroy an ordinary person's reason and judgment, to such an extent as to be considered in view of all the circumstances an irresistible passion. ... Wt believe and hold that the instruction as given, taken with the rest, was not in error or prejudicial under the facts of this particular case. An instruction that with little substantial difference has weathered the storm of scrutiny of some of the most outstanding skippers of criminal law since way back yonder in 1888, when in People v. Calton, a weatherbeaten instruction, yet unruversed and seaworthy still, said: ...the on To reduce homicide to the degree of manslaughter ground solely that it was committed in the heat of passion, the provocation must have been considerable, in other words, such as was calculated to give rise to irresistible passion in the mind of a reasonable person. ft'" CvV.: This instruction was approved in Hart v. 1. 5 Utah 451, 16 Pac. 902 (1888). 2. 1)0 t F.?d 45 U. S. , which cited the Calton case, (1942). A. H. Ellett, Justice trial j CROCKETT, Chief Justice: concur in affirming the conviction. Hjwtn ate to point out what I regard as a distinction he "heat of passion" involved in reducing an irtertinr-a- i irm .: slaughter and the "irresistible passion," or "urt--is',- . which is a criterion to be applied in judging the tiaj:n ci .. s..: 1 l " . . .. ivu. accused of crime. The latter has been stated by this court to include situation where a person, is conscious of the nature of the act he is rc:nm.tt.ing ar.d able to distinguish between right and wrong and knows that the ct is wrong yet his will, that is, the governing power of his mir.d. has been so destroyed that his actions are not subject to it, but are beyond his control. "1 Under that definition, if the accused's reason &rd judgment are destroyed by mental disease to the point where he is "irri sistihly comuM :,r- , ..:T -pelled" in that his actions are not subject to his will,' he snlered to have been insane at the time the act was tomnn'M i t.n therefore not held responsible. "... com-plete- ly i ii.i? is true that thelanguage of some cases ir.Uj at tiit passion ; overcome requisite to reduce a homicide to manslaughter shomd the will, including the cases referred to in the man But it is sub mitted that the better view is that in order to constitute, mat slaughter it is not necessary that the will be completely destroyed nor the- - reason completely dethroned. The proposition is well stated in Maher v. People; "It will not do to hold that reason should be entirely dethroned or ovei powered by passion so as to destroy intelligent volition. Such a degree of l disturbance would be equivalent to utter insanity In contrast to this, what is required in order to reduce a homicide to manslaughter is that ttmre he heat of passion, upon some adequate provocation, such that the accused's ability or obscured to reason and to control his actions are temporarily so uirtui-'icthat he is incapable of acting with the intent andor required for a of conviction murder. It ? . rm-r.M- 1. Jury instruction approved in State v. Poulson, 14 Utah 2d 213, 381 P. 2d 93 (1963); see also State v. Kirkham, 7 Utah 2d 108, 319 F.2d 859 (1958). 2. 10 Mich. 212, See also: People v. Calton, 5 Utah 451, appears in 16 P. 902 as Territory v. Cattonsic (1888), reversed on other groundt, Calton v, Utah, 130 U.S. 83 (1888); State v. Gardner, 219 S.C. 97, 64 S.E.2dl30 (1951). 3. See Ryan v. State, 115 Wis. 488, 92 N.W. 271 (1902); Olds v. State, 44 Fla. 452, 33 So. 296 (1902); Johnson v. State, 129 Wis. 146, 108 N.W. 55 (1906); People v. Poole, 159 Mich. 350, 123 N.W. 1093 (1909); State v. Davis, 50 S.C. 405, 27 S.E. 905 ( 1897); Maher v.. People, 10 Mich, 212 (1862); see also statements of the rule in varying forms, 40 C. J.S. 903, 40 Am. t (Concur ing) i Jur. 2d p. 353. |