People v. Berry

18 Cal. 3d 509, 134 Cal. Rptr. 415, 556 P.2d 777 (1976)



There is no specific type of provocation required by Cal. Penal Code § 192 and verbal provocation may be sufficient. In the course of explaining the phrase "heat of passion" used in the statute defining manslaughter the court points out that "passion" need not mean "rage" or "anger" but may be any "violent, intense, high-wrought or enthusiastic emotion."


Defendant was convicted of first degree murder and assault by means of force likely to produce great bodily injury in connection with the death of defendant's wife. Defendant admitted the assault and killing, but claimed it was committed in a state of uncontrollable rage caused by provocation and flowing from condition of diminished capacity; and therefore it was error for trial court not to instruct jury on voluntary manslaughter. The supreme court reversed the murder conviction. 


Can murder be reduced to voluntary manslaughter, where the heat of passion under which the offense was committed was the product of a continuous period of provocation resulting in intermittent outbreaks of rage leading to a final lethal act?




The trial court erred in failing to instruct the jury on voluntary manslaughter because the evidence showed the killing was done upon sudden quarrel or heat of passion; but the court did not err in refusing an instruction on voluntary manslaughter in context of diminished capacity since there was no evidence defendant had any mental illness or defect. The court affirmed the assault conviction since the court did not err in refusing to instruct the jury on simple assault.

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