State v. Jones

• Decision Date: 08 September 1965
• Citation: 241 Or. 142,405 P.2d 514
• Parties: STATE of Oregon, Respondent, v. George JONES, Appellant.
• Court: Oregon Supreme Court

Page 514

405 P.2d 514

241 Or. 142

STATE of Oregon, Respondent, v. George JONES, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 7, 1964.

Reargued June 7, 1965.

Decided Sept. 8, 1965.

George A. Haslett, J., and Francis F. Yunker, Portland, argued the cause and submitted a brief for appellant.

Tom P. Price, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

O'CONNELL, Justice.

Defendant appeals from a judgment of conviction for the crime of murder in the second degree.

Defendant contends that the evidence precludes a finding of malice which is a necessary element in the crime of murder in the second degree as defined by ORS 163.020(1). ¹

The facts were as follows. The victim, Robert Bowman, and defendant were sitting at the counter in Ethel's Cafe on Burnside street in Portland, where they were eating. They engaged in an argument over a minor matter. Aroused, Bowman laid down his knife and fork, removed his glasses, walked over to defendant, struck him and backed him against a cigarette machine, striking him several more times with his fist. While backed against the cigarette machine defendant struck Bowman with a knife. Defendant stabbed Bowman three times, once in the back. One of the thrusts was so hard that it caused the knife to enter Bowman's body deeper than the length of the blade. Bowman did not employ a weapon of any kind. It is not clear whether defendant stabbed Bowman after defendant had worked himself away from the cigarette machine. A police officer who was in the restaurant at the time of the quarrel testified that 'the deceased was leaning over the counter in a stooped position, and just at the minute I looked the defendant was withdrawing a knife from complainant's back. He immediately slumped a little bit and the defendant jumped back across the wall with the knife in a raised position.' Bowman was only five feet four and one-half inches tall and weighed only 105 pounds. The evidence does not disclose defendant's size. The jury saw him and if he was substantially larger than Bowman that fact could be considered by the jury in deciding whether malice motivated defendant, as we shall explain later.

The question is whether on these facts the jury could find malice. Without malice the crime could be no greater than manslaughter. It is contended that malice is lacking in the present case because the facts incontrovertibly show that defendant acted in the heat of passion as a result of Bowman's assault.

It may be assumed that Bowman's assault aroused defendant's passion. But this does not dispose of the matter. The statute requires a provocation apparently sufficient to create an 'irresistible passion.' As said in Mancini v. Director of Public Prosecutions [1942] L.R. (A.C.) 1, 'the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.'

Two variables must be weighed in relation to each other--the degree of provocation and the measures employed by the defendant in response to it. If the provocation consists of an assault, it may or may not be sufficient to make the defendant's passion irresistible. The size of the assailant, the manner in which he approached the defendant, the language use, and other facts must be considered in judging the effect they might have upon the defendant or upon a reasonable man, depending upon whether a subjective or objective test is used. ² On the other side of the scale must be weighed the instrument employed by the defendant to kill his assailant, the language employed by him, his size in relation to that of his assailant, and other facts.

It is the jury's function to weigh these factors unless in the particular case the court can say as a matter of law that the defendant did or did not have an irresistible passion. Defendant assumes that the evidence in the present case establishes that he must have had an irresistible passion when he stabbed Bowman. The jury could have concluded otherwise. 'Heat of passion' and 'malice' are at best very vague terms which must be applied in the light of the legislative purpose in differentiating second degree murder and manslaughter. The differentiation apparently was made 'out of the indulgence to the frailty of human nature,' ³ recognizing that the provocation in some cases may be so great as to warrant a penalty less than that prescribed for murder. In deciding whether the defendant should be given the benefit of this recognition of the 'frailty of human nature,' his conduct must be measured against the standards of the community. The jury is best equipped to apply that standard. The trial court properly submitted to the jury the question of defendant's malice.

Defendant contends that the court erred in instructing the jury on the subject of self-defense. The alleged error relates to the following portion of the whole instruction: 'The person asserting the defense must have been reasonably without fault in bringing on the difficulty which resulted in the death of the deceased.' The entire instruction on self-defense makes up approximately four pages of the transcript. It was explained that if defendant 'provoked the assault, or if he was the aggressor in the affray, then he cannot justify the killing on the ground of self-defense, unless after provoking the difficulty he was endeavoring to withdraw from it.' The court went on to say that 'In such situation he would be precluded by his conduct of availing himself of the necessity which was self-imposed and which he brought upon himself.' Later the court explained that 'the right of self-defense does not imply the right of attack and will not avail in any case where the difficulty was induced by the party himself.'

Admittedly, there was little evidence relating to provocation. The principal witness described the situation at the lunch counter just before the fatal fight began. He testified that defendant was 'talking' and 'making a lot of noise'; that 'he acted tough, or something like that'; but that 'he wasn't bothering nobody.' The deceased 'said in a nice way, 'There are two policemen here" to which defendant replied, 'To hell with the cops, and to hell with you." Whereupon deceased got up from his seat at the counter and approached defendant and the fight ensued.

The instruction, taken as a whole, could not have left any doubt in the mind of the jury as to the applicable law. ⁴ We hold that the instruction considered as a whole did not create reversible error.

Judgment affirmed.

PERRY, Justice (dissenting).

The majority do not meet the question raised by this appeal.

It must be constantly kept in mind that all of the evidence introduced was by the state. Also, it should be noted that the knife used by the defendant was not a pointed knife, but a wide blade ordinary kitchen paring knife.

The question presented is whether or not the state have proved beyond a reasonable doubt that malice aforethought was present when the homicide was committed. In other words, the question before this court is not whether the facts will support a conviction of manslaughter, but will they support a conviction of murder?

Malice aforethought is an essential ingredient of murder and must be established by the state beyond a reasonable doubt. State v. Nortin, 170 Or. 296, 133 P.2d 252; State v. Butler, 96 Or. 219, 186 P. 55.

The majority fail to take note of ORS 163.040, which reads as follows:

'(1) Any person who, without malice express or implied, without deliberation, and upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible, voluntarily kills another, is guilty of manslaughter.

'(2) Any person who, in the commission of any unlawful act, or a lawful act without due caution or circumspection, involuntarily kills another, is guilty of manslaughter. The provisions of this subsection shall not apply to the killing of any person where the proximate cause of such killing is an act of omission defined as negligent homicide in ORS 163.091.

'(3) Every killing of a human being by the act, procurement or culpable negligent of another, when the killing is not murder in the first or second degree, or is not justifiable or excusable or negligent homicide as provided in ORS 163.091, is manslaughter.' (Emphasis supplied.)

It will be noted, this statute includes all homicides which are not 'justifiable or excusable,' not alone those committed in a 'sudden heat of passion caused by a provocation apparently * * * irresistible.'

The majority seemingly believe that the burden of proof of lack of malice rests upon the defendant. Such a burden never rests upon a defendant when it is the state's evidence that raises the issue. State v. Copenbarger, 52 Idaho 441, 16 P.2d 383.

Also, a defendant is entitled as a matter of law to every reasonable doubt. This is clearly disclosed by the legislative mandate:

'When it appears that the defendant has committed a crime of which there are two or more degrees and there is a reasonable doubt as to the degree of which he is guilty, he can be convicted of the lowest of those degrees only.' ORS 136.050. (Emphasis supplied.)

The majority state as a question of fact for the jury: Did the defendant have an irresistible passion when he stabbed the deceased? The statute makes no such requirement; the accent or thrust of the statute is upon 'a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible.' ORS 163.040, supra. (Emphasis supplied.) As I understand this statute, the word 'apparently' refers back to the provocation. An 'apparent' provocation means '* * * seeming other than true or real, likely * * *, obvious.' Black's Law Dictionary, De Luxe Fourth Edition, p. 123.

While this court...