State v. Ross, 12545

Citation28 Utah 2d 279,501 P.2d 632
Decision Date29 September 1972
Docket NumberNo. 12545,12545
Partiesd 279 STATE of Utah, Plaintiff and Respondent, v. Walter Parnell ROSS, Defendant and Appellant.
CourtSupreme Court of Utah

D. Gilbert Athay, Salt Lake City, of Salt Lake City Legal Defender Assn., for defendant-appellant.

Vernon B. Romney, Atty. Gen., David S. Young and David R. Irvine, Asst. Attys. Gen., Salt Lake City, for plaintiff-respondent.

CALLISTER, Chief Justice:

Defendant appeals from his conviction by a jury of the crime of second-degree murder. His primary assertion of error is predicated on the ground that there was insufficient evidence to support a finding of malice aforethought, a requisite element of second-degree murder.

In the early morning hours of June 20, 1970, defendant admittedly killed his wife, Juanita, but he contends that it was upon a sudden quarrel or in the heat of passion, i.e., the crime of voluntary manslaughter, Sec. 76--30--5(1), U.C.A.1953.

Defendant testified that in the afternoon prior to her death, his wife and he ate a late lunch and then attended a movie. They returned to their apartment, and she informed him that she had an appointment with a customer; she was a prostitute. He protested mildly because the Welfare Department had taken custody of their child, and upon consultation they were informed by a caseworker that they had a good chance of regaining custody if the wife would terminate her activities in prostitution and drug use, and would establish a home for the family. Apparently, defendant accepted his wife's explanation that she needed money to purchase new clothes, and he departed from the premises. He returned to the apartment, according to his testimony, about 2:30 a.m. and discovered a spoon and cotton, which indicated to him that his wife had used the money from her customer for narcotics. He became furious and stormed into the bedroom, demanding to know the location of her 'dope kit.' She denied the use of narcotics and the existence of a kit. Defendant claims that he slapped her around and threatened to hit her with a leg broken off a coffee table; upon her repeated denials, he ultimately struck her in the head with the leg. She, subsequently, informed him that her 'dope kit' was concealed in a dust pan in the bathroom. He ceased his attack and realized that she was injured; he went to summon help but upon arrival of the police, she was dead. Defendant characterized his encounter with his wife as an argument accompanied by scuffling all over the place; however, he did admit that he hit her with his fists. Defendant, at the time of the incident, weighed 220 pounds and was 5 feet 11 1/2 inches tall. His wife weighed 90 to 95 pounds and was 5 feet tall.

The physician, who performed an autopsy, testified as to his findings; he described multiple abrasions, contusions and lacerations which extended over the entire body. There were 500 c.c. of blood (approximately 1/8 of her total blood) in the wife's abdominal cavity from a fractured 10th rib and lacerations of the liver and other soft tissue. He testified that the cause of death was a combination of loss of blood from the torn liver and asphyxiation by strangulation.

During the course of the trial, defendant made a motion to dismiss the charge of second-degree murder and to submit the cause to the jury on the lesser offenses of voluntary and involuntary manslaughter. Defendant asserted that an analysis of the evidence indicated a sudden quarrel and that the beating was administered in the heat of passion, that upon his realization of his actions, he immediately summoned assistance. These facts he urged negate te existence of malice. Defendant proffered the same argument in a motion for a new trial. The trial court responded that the evidence indicated a substantial physical beating, whether it was by fists or club or both, prior to death, followed by strangulation, which was the probable cause of death. The trial court concluded that from this evidence the jury might find a deliberate intention, unlawfully, to take life; and, therefore, the court denied the motion. Defendant appeals from this ruling.

'Murder' is defined as the unlawful killing of a human being with malice aforethought, Sec. 76--30--1, U.C.A.1953. Sec. 76--30--2, U.C.A.1953, provides that such malice is express when there is manifested a deliberate intention unlawfully to take the life of a fellow creature. Manslaughter is the unlawful killing of a human being without malice; it is voluntary upon a sudden quarrel or in the heat of passion, Sec. 76--30--5(1), U.C.A.1953.

In People v. Catton 1 the court stated:

. . . It is very difficult, in many cases, to distinguish manslaughter from murder. The act that caused death may have been wilful, but death may not have been intended. The intention to kill may have been formed, and life taken, during or soon after an angry quarrel, or amid or immediately after violence and excitement. In order to determine whether the accused in any given case acted from reason or passion, the provocation, the weapon used, (if any) the preparation for the act, his expressions, and all the circumstances must be considered; and although it appears that the act proceeded to some extent from malice, upon reflection and calculation, and to some extent from passion, that will be held to be the cause which had the preponderating influence. Passion, to some extent, almost always influences the slayer, when the fatal wound is given during or soon after a quarrel or a fight; and, conversely, malice, to some extent, influences the party killing in either case. But the law charges the act to malice or passion as the one or the other is found to be the preponderating cause of the act. . . . The passion must be such as is sometimes called 'irresistible...

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7 cases
  • State v. Bishop
    • United States
    • Supreme Court of Utah
    • February 3, 1988
    ...... 99 Stahl v. Utah Transit Autho., 618 P.2d 480, 481 (Utah 1980). . 100 Utah Code Ann. § 76-30-5 (1953) (repealed 1973). . 101 See State v. Ross, 28 Utah 2d 279, 282, 501 P.2d 632, 634-35 (1972); see generally Model Penal Code § 210.3, comments 1-2, at 44-48; id. comment 5, at 54-60 (1980). ......
  • State v. Lafferty
    • United States
    • Supreme Court of Utah
    • January 11, 1988
    ...State v. Cloud, 722 P.2d at 752-54; State v. Garcia, 663 P.2d at 63-64; State v. Wells, 603 P.2d at 812-13; State v. Ross, 28 Utah 2d 279, 283-84, 501 P.2d 632, 635-36 (1972); State v. Poe, 24 Utah 2d 355, 359, 471 P.2d 870, 872 (1970); State v. Poe, 21 Utah 2d 113, 117-18, 441 P.2d 512, 51......
  • State v. Lambdin
    • United States
    • Supreme Court of Utah
    • August 11, 2017
    ...and emotions] in some cases may be so great as to warrant a penalty less than that prescribed for murder." State v. Ross , 28 Utah 2d 279, 501 P.2d 632, 635 (1972) (citations omitted). But this legislative indulgence goes only so far. It has not been extended to reduce murder to manslaughte......
  • State ex rel. Lawrence v. Smith
    • United States
    • Supreme Court of Louisiana
    • December 3, 1990
    ...in relation to each other--the degree of provocation and the measures employed by the defendant in response to it." State v. Ross, 28 Utah 2d 279, 501 P.2d 632, 635 (1972). Accordingly, the "provocation must be proportionate to the manner in which the accused retaliated, and the crime is mu......
  • Request a trial to view additional results

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