January 28, 2012


In an intentional homicide, it is a requirement that the defendant intended death or that he intended an act calculated such that, a person of reason should know such act is one likely to do great bodily harm and that death occurred. Most voluntary manslaughter cases involve the intent to kill. However, there are cases where the defendant might kill without intent, but with reckless disregard for human life. In such situation, the defendant perhaps, acted in the heat of passion with adequate provocation.

The defendant is guilty of voluntary manslaughter and not murder if facts show he acted unintentionally without the design to kill, but in the heat of passion. A defendant who killed intentionally in the heat of passion would be guilty of murder. To establish heat of passion, it must be shown that at the time of the act, defendant’s reasoning is so disturbed or overcome by passion to the point, which would make ordinary men of fair, average disposition liable to act irrationally without due deliberation or reflection.

The action must have taken place as a result of passion and not judgment. However, it is not every provocation or every rage that will reduce a killing from murder to manslaughter. Under the traditional heat of passion doctrine, a provoked defendant Will not have his homicide reduced to voluntary manslaughter, where the time elapsing between the provocation and the death-blow is such that a reasonable man would have “cooled off.”

The provocation must be of such a character and so close to the act of killing that a person could be that for a moment the defendant, could be considered as not being the author of his own understanding and faculty. In other words, to reduce intentional killing to voluntary manslaughter, there must be reasonable provocation. The provocation must be such as to cause a reasonable man in the position of the defendant to kill. Nonetheless, a reasonable man however highly provoked he is, does not kill.

The law recognizes that one, who kills while provoked, should not get away with his crime but be guilty of the lesser crime of voluntary manslaughter instead. One who is highly provoked to kill one responsible for the provocation, should not be guilty of murder. At the same time, he must not be allowed to escape prosecution, making his crime to fall in the category of voluntary manslaughter.

While one may be so provoked to kill and have his crime reduced from murder to voluntary manslaughter, there is a growing debate about what actually constitutes a crime of passion or reasonable provocation. For example, one subject to a light blow may not kill and then claim reasonable provocation. Even though, this is battery it is not enough to cause the defendant to kill.   ( Commonwealth v. Rembiszzewski, 363 Mass. 311, 393 N.E. 2d 919 (1973) ).

However, a violent, painful blow, with fist or weapon, ordinarily will constitute reasonable provocation. (People v. Harris, 8111.2d 431,134 N.E. 2d 315 (1956) ). In a case where the defendant is subject to a painful blow, he may not have his homicide reduced to voluntary manslaughter if facts show he struck the first blow or is himself responsible for the painful blow received from the provoker. That is if defendant set in motion the event leading to the provocation.

In some cases, whether the homicide is mitigated from murder to voluntary manslaughter would depend on the kind of weapon used in response to the provocation. For example, where the provoker used a light blow with a fist on the defendant, the defendant may not in retaliation, use a dagger in response to the light blow and have his homicide reduced to voluntary manslaughter. in such situation, use of dagger would constitute excessive force. (Mancini v. Director of Public Prosecutions, (1956) ).

In a situation where two persons are engaged in mutual combat, resulting in the homicide of one, based on the intention formed by defendant during the Combat. In such a scenario, should the defendant be guilty of murder for the homicide of the victim? The view is that Such a homicide is manslaughter and not murder. (People v. Leonard, 83111.2d 411 (1980), Robinson v. State,773 So.2d 943 ( Miss.App. 2000 )).This is due to the mutual nature of the combat and in some cases, it is compared to provocation involved in batteries.

Where a violent assault is committed on the defendant such that he is provoked to kill, the better view has been that an unsuccessful violent assault may constitute adequate provocation leading to a homicide. For example, where the attacker fires a gun at the defendant, (Stevenson v. United States, 162 U.S. 313 (1896)). The defendant in such extreme situation could have his homicide reduced to voluntary manslaughter. Meaning that though, the shot missed, the defendant could still have his murder reduced to voluntary manslaughter.

There are different views as to whether one subject to illegal arrest can be so provoked to commit murder. Some believe such an arrest might reasonably arouse passion leading to murder. Others believe a reasonable person could not be so provoked by an illegal arrest to commit a homicide. But Irrespective of the views, an arrest carried out by a law enforcement agent or that is legal, cannot constitute sufficient Provocation to commit murder. (State v. Madden, 61 N.J. 377, 294 A.2d 609 (1972)). The reason for such view is that though, one is illegally arrested, there is always recourse through the legal system after the arrest is complete. That is, the defendant could petition the court for redress if he feels violated.

Another view is that an innocent person subject to illegal arrest, might be reasonably provoked than a guilty one. In most jurisdiction of the United States, it is settled principle of law that a husband who finds his wife in the act of committing adultery may be reasonably overcome by passion to kill either his wife or the lover. In such situation, he has not committed murder but rather voluntary manslaughter. (Rowland v. State, 83 Miss. 483, 35 So. 826 (1904), Gonzalez v. State, 546 S.W.2d 617 (Tex. Crim. App. 1977)).

Likewise, a wife can be reasonably provoked on finding her husband in the act of adultery with another woman. (Scroggs v. State, 94 Ga. App. 28 (1956)), a case, where wife killed the other woman upon discovery her of adultery with her husband. The point is that same principle of law applies to women as it does to men. Note that the rule mitigating the crime of murder to manslaughter does not extend to unmarried couples such as engaged persons, divorced persons and unmarried lovers. If one kills his girlfriend because she leaves him for another man or he finds her sleeping with another, he will not have his murder charge mitigated to manslaughter. However, the facts will distinguish each case.

The initial view is that words plus gestures alone will not satisfy mitigating murder to voluntary manslaughter but, the rule is changing today. In many jurisdictions, words alone will do as a mitigating factor for reducing intentional murder to voluntary manslaughter. To be reasonable ground for provocation, the words must convey information of a fact, which would provoke a reasonable person. Mere insulting, abusive words, or hearsay will not do.

A word of gesture such as homosexual advances that are unwanted and rejected by the defendant will do to arouse reasonable provocation and be a mitigating factor for reducing intentional killing, to voluntary manslaughter. However, a non violent homosexual advance will not suffice. Merely “experiencing fear or hatred of gay people in response to a homosexual overture should not suffice to provoke a reasonable person to lose his or her self-control and resort to deadly force.” (Development-Sexual Orientation and the Law, 102 Harv. L.Rev. 1547 (note 56)).

Under the reasonable man standard, that the defendant has peculiar mental or physical characteristics not possessed by the ordinary individual, which caused him to lose control are generally not considered a mitigating factor for reducing his homicide to voluntary manslaughter.

Same way, the intentional killing cannot be reduced to voluntary manslaughter where, because of intoxication, he loses self-control. That is to say, he is to be judged by the standard of a reasonable sober man. The test is usually how the victim’s action affects a reasonable person, not how it affects a person with the defendant’s physical characteristics. (Bedder v. Director of Public Prosecutions, (1954)).

In circumstances where a reasonable person is so provoked to lose self-control, it must be determine if the defendant was actually provoked by the victim’s action to kill. If because he is a person of cooler temperament than the reasonable man, he was not actually provoked but killed his victim in cold blood, he is guilty of murder and the intentional killing cannot be reduced to voluntary manslaughter. (People v. Gingell 211 Cal. 532, 296 P. 70 (1931)).


Imagine the scenario of a fight between two persons. One is struck with a metal object suffering minor injuries. After the fight is broken, he goes home and had lunch with his wife. Forty minutes later still mad he was hit, came back to scene of the fight with a gun, shot the other killing him. The question is should he have his murder charge reduced to voluntary manslaughter?

In most cases the answer is no. Even though, the victim’s action actually and reasonably provokes the defendant into a heat of passion, the law recognizes a reasonable time to “cool-off” and defuse the situation. In this case, forty minutes is enough time for the passion to subside and cool off. Forty minutes, serves as a time lag between the provocation and infliction of the fatal wound (killing of the victim).

The general view is that a provoked defendant cannot have his homicide reduced to voluntary manslaughter, where there is a time-lapse between the provocation and the death-blow such that, a reasonable man thus provoked would have cooled. Under the minority view, the reasonable time test may not apply. However, if there is a reasonable and real provocation, the defendant is only guilty of manslaughter if in fact, because of his peculiar temperament, he has not cooled off though, a reasonable man would have cooled. (State v. Hazlett, 16 N.D. 426, 113 N.W. 374 (1904)).

In the scenario above, though, the defendant got provoked into a passion by the strike, another event occurred, which could have helped him cool-off to avoid the killing. By having lunch with his wife, he had enough time to think about the event and change his mind. In most cases, what determines a reasonable cooling time could be based on the nature of the provocation and the circumstances of the event. Whatever the case is a question of fact for the jury to decide.

Where fact show the defendant is both reasonably and actually provoked and a reasonable man would not have cooled off in the circumstance, the defendant will not have his homicide mitigated to voluntary manslaughter ‘if, because his passion subsides more quickly than those of the ordinary person, he has actually cooled off by the time he Commits his deadly act.’ (Wayne R. LaFave, Criminal Law: Hornbook Series, 4th edition P. 787-788 (2003) ref. in-re- Fraley, 3 Okla. Crim. 719. 109 P. 295 (1910)). This means that if normally, the defendant when provoked, cools-off quicker than the ordinary person, this fact is used as evidence he has indeed cooled-off when the homicide occurred.

In summary, the principle is that: (a) one who is both reasonably and actually provoked and who reasonably and actually does not cool off, is not guilty of murder but instead voluntary manslaughter; (b) one who is actually provoked to kill, is unreasonably so, because a reasonable person would not have been so provoked or even if provoked, would have cooled off may be found guilty of second degree murder for though, he intended to kill, his actions lack the afore-thought and deliberation requirement for first-degree murder.

Finally, (c) one who though, is reasonably provoked and although a reasonable person would not have cooled off, either is not provoked or actually cools-off kills with time and capacity to premeditate and deliberate his actions, may be guilty of murder in the first-degree. (People v. Gingel, supra (1971) at P. 70). Killing under the heat of passion, is one of the mitigating factors recognized by our legal system to reduce a murder to manslaughter. Nonetheless, each case is determined based on the facts and circumstances. The question of whether the homicide qualifies as a passion killing is always for the jury to decide.

Adeyemi Oshunrinade (E. JD) is an expert in general law, foreign relations, and the United Nation. He is the author of ‘Murder of Diplomacy’ (2010) and ‘Wills Law and Contests’ (2011) “Crime of Passion” is an excerpt from his book “Criminal Law-Homicide,” available on Amazon. Follow @san0670.


Categories: Academic Journal, Criminal Law

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2 replies

  1. Very interesting piece, thank you


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