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Law School Case Brief

State v. Thornton - 730 S.W.2d 309 (Tenn. 1987)


The encountering by a spouse of his partner having sexual intercourse with another has been held, as a matter of law, to constitute sufficient provocation to reduce a charge of homicide from one of the degrees of murder to manslaughter absent actual malice, such as a previous grudge, revenge, or the like. Every case, of course, must be decided upon its own facts.


Defendant and his wife had been married for less than four years. They have been separated for about six weeks, but no divorce action had been filed, and defendant had been making a serious effort toward reconciliation with his wife. Defendant found his wife and the victim, Mark McConkey, engaged in sexual relations in the front bedroom of defendant’s home. He fired a single shot which struck McConkey in the left hip. The victim died 16 days later as a result of a massive infection resulting from the bullet wound. Defendant was thereafter convicted of murder in the first degree. Defendant sought review of the judgment.


Did sufficient evidence support defendant's conviction of murder in the first degree, notwithstanding the fact that he witnessed his wife having sexual intercourse with the victim?




Upon review, the court reduced defendant's conviction to voluntary manslaughter. Defendant actually discovered his wife in flagrante delicto with a man who was a total stranger to him, and at a time when he was trying to save his marriage and was deeply concerned about both his wife and his young child. He did not fire a shot or in any way harm the victim until he actually discovered the victim and his wife engaged in sexual intercourse in his own home. According to the Court, the passions of any reasonable person would have been inflamed and intensely aroused by that sort of discovery, given the factual background of the case. Even though he was not legally insane so as to relieve him of all criminal responsibility for the tragic death that occurred, defendant's actions were a classic case of voluntary manslaughter and no more.

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