Morgan v. State

• Decision Date: 16 May 1975
• Docket Number: No. F--74--24,F--74--24
• Citation: 1975 OK CR 89,536 P.2d 952
• Parties: Drusilla Stokes MORGAN, Appellant, v. The STATE of Oklahoma, appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 952

536 P.2d 952

Drusilla Stokes MORGAN, Appellant, v. The STATE of Oklahoma, appellee.

No. F--74--24.

Court of Criminal Appeals of Oklahoma.

May 16, 1975.

Don Anderson, Public Defender, Oklahoma County, for appellant.

Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., M. Joe Crosthwait, Jr., Legal Intern, for appellee.

OPINION

BLISS, Judge:

Appellant, Drusilla Stokes Morgan, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Oklahoma County, Case No. CRF--73--1200, for the offense of Murder, in violation of 21 O.S.1971, § 701. The jury fixed her punishment at Life Imprisonment, and from this judgment and sentence a timely appeal has been perfected to this Court.

As this case requires reversal, a complete statement of the facts is unnecessary. The evidence adduced at the trial on behalf of the State established a clear case of premeditated murder, by which the defendant brutally shot and killed the deceased, without provocation, while he was attempting to flee to safety and lay helpless and prostrate upon the floor. The defendant, however, interposed self-defense and testified that the deceased was threatening and advancing upon her with a knife, and that she shot in fear for her life not then remembering anything until the encounter had terminated. Further evidence introduced in behalf of the defense established that the deceased was a violent man known to the defendant to carry a knife, and had on previous occasions attacked the defendant with a weapon.

The defendant has assigned as error the failure of the trial court to instruct upon voluntary or first degree manslaughter committed in the heat of passion as a lesser included offense. The essence of defendant's argument is that although the jury did not believe the defendant was justified in killing in self-defense, there was sufficient evidence from which the jury could conclude that the defendant acted from fear amounting to a sudden heat of passion and without malice. Under the weight of authority existing here and elsewhere, we are of the opinion that this contention bears merit requiring reversal. However, we recognize this appeal to present a broader issue deserving clarification. This precise issue is to what extent, if at all, in a prosecution for murder does evidence of self-defense necessitating an instruction thereon, also require an instruction on voluntary or first degree manslaughter committed in the heat of passion as a lesser included offense? Since this appeal was first presented, we have conducted extensive research and analysis for purposes of clarifying the law with regard to this issue.

This category of manslaughter is generally defined to be the unlawful and intentional killing of another without malice but under the influence of a sudden heat of passion caused by adequate provocation. ¹ In a prosecution for murder, evidence of self-defense may simply introduce an alternative question as to whether there has been established a particular category or classification of the myriad of factual situations in which voluntary manslaughter might arise, i.e., adequate provocation in the form of personal violence and aggression by the deceased against the accused engendering a sudden heat of passion under the immediate influence of which the accused kills, not in reasonable necessity, but without malice and from fear or anger precluding rational or reasonable thought. In such cases voluntary manslaughter has, indeed, been recognized to occupy a midway position between self-defense and murder. ²

The essential distinction in a murder prosecution between self-defense, a perfect defense excusing a homicide, and voluntary manslaughter, an imperfect defense reducing the degree thereof, has been variously recognized as follows:

'The dividing line between self-defense and . . . (voluntary) manslaughter seems to be the existence, as the moving force, of a reasonably founded belief of imminent peril to life or great bodily harm, as distinguished from the influence of an uncontrollable fear or terror, conceivable as existing, but not reasonably justified by the immediate circumstances.' ³

'Manslaughter resulting from provocation must not be confounded with homicide in self-defense. In the latter the blow is excused, because necessary to save the life of the person striking it, or to prevent grievous bodily harm; while in manslaughter there is no such necessity, and the blow is only partially excused, because given in the heat of passion.' ⁴

Although their elements are not mutually co-extensive, the frequency in which evidence of self-defense requires such an instruction upon voluntary manslaughter becomes apparent upon an examination of the extent to which the elements of the latter are included within the former. ⁵ Either fear or anger must necessarily exist to some extent in every case of self-defense, and when of a sufficient degree these are recognized as emotional states giving rise to heat of passion. Personal violence and aggression by the deceased sufficient to necessitate an instruction upon self-defense has most generally been recognized as more than adequate legal provocation. In most, if not all, of the relatively few instances to the contrary, either the necessity of an instruction upon self-defense in the first instance seems questionable, or the courts have effectively held apparent provocation insufficient rather than leaving the reasonableness of the defendant's belief for the determination by the jury. The absence of malice aforethought is an element common to both self-defense and voluntary manslaughter. However, while both clearly require that the slayer not have acted with unabandoned felonious or premeditated intent to kill, the slayer may enjoy a greater degree of culpability in the case of voluntary manslaughter where he acts under the influence of passion as opposed to self-defense which requires that he act reasonably upon apparent necessity.

The majority statement of the law is to the effect that evidence requiring an instruction upon self-defense in a murder prosecution does not Necessarily require, nor preclude, an instruction upon voluntary of first degree manslaughter committed in the heat of passion as a lesser included offense, but where from any evidence the elements of each are established, then an instruction upon both is necessary. ⁶. However, this approach has left the trial court in doubt as to when to instruct thereon, and has required appellate courts to engage in the fact-finding process. This situation has produced widely varied results within even the same jurisdiction, ⁷ and the application of this principle in the various jurisdictions can only be reconciled by observing that within the peculiarities of their own law the courts have recognized a different quantum of proof that motivation was heat of passion as a prerequisite to such a charge. This variance in the application of that principle has also persisted within our own jurisdiction. In the following cases such an instruction upon voluntary manslaughter was held to be unnecessary or improper: Myers v. State, Okl.Cr., 480 P.2d 950 (1969); Harrison v. State, Okl.Cr., 461 P.2d 1007 (1969); Fleming v. State, Okl.Cr., 401 P.2d 997 (1965); Smith v. State, 77 Okl.Cr. 142, 140 P.2d 237 (1943); Oglesby v. State, 56 Okl.Cr., 286, 38 P.2d 32 (1934); and Carle v. State, 34 Okl.Cr. 24, 244 P. 833 (1926); while in the following such a charge was held to be necessary or proper: Shirey v. State, Okl.Cr., 520 P.2d 701 (1974); Williams v. State, Okl.Cr., 513 P.2d 335 (1973); McFay v. State, Okl.Cr., 508 P.2d 273 (1973); Wood v. State, Okl.Cr., 486 P.2d 750 (1971); Smith v. State, 59 Okl.Cr. 111, 56 P.2d 923 (1936); Young v. State, 33 Okl.Cr. 255, 243 P. 763 (1926); Sherman v. State, 20 Okl.Cr. 306, 202 P. 521 (1921); and Lawson v. Territory, 8 Okl. 1, 56 P. 698 (1899).

Recognizing that fear or anger must exist to some degree in every murder prosecution wherein an instruction upon self-defense is necessary, we are of the opinion that the better practice would be to fully instruct upon voluntary manslaughter in every such case, and thereby leave for the jury under appropriate law the sufficiency of the evidence to establish this lesser degree of homicide. Despite continued adherence to the above statement of the law, this is the result generally reached in the vast majority of more recent decisions from other jurisdictions after applying the any-evidence test and resolving any doubt in favor of the defendant. In so reasoning, we are fully cognizant that an instruction should not be given upon a lesser included offense not supported by the evidence, but find that the elements of voluntary manslaughter are present in such cases to some extent, however, slight, and that the previous approach has left doubt and thrust the courts into a fact-finding process more properly reserved for the jury. In such cases, the impropriety of the trial court taking this question from the jury was recognized in Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980 (1896), wherein the Court reasoned in part:

'. . . The evidence as to manslaughter need not be uncontradicted or in any way conclusive upon the question; so long as there is some evidence upon the subject, the proper weight to be given it is for the jury to determine. If there were any evidence which tended to show such a state of facts as might bring the crime within the grade of manslaughter, it then became a proper question for the jury to say whether the evidence were true and whether it showed that the crime was manslaughter instead of murder. . . . The evidence might appear to the court to be simply overwhelming to show that the killing was in fact murder, and not manslaughter or an act performed in self defence, and yet, so long as there was some evidence relevant to the issue of manslaughter, the credibility and force of such evidence...