Malice aforethought as required in second degree murder is not synonymous with the term deliberate as used in defining first degree murder.
Defendant was convicted of murder in the second degree based on defendant's killing of his homosexual partner in a lover's quarrel, claimed to have been provoked by unfaithfulness on the part of the victim and his expressed desire to terminate the relationship. The defendant appealed arguing that the trial court erred in instructing the jury on malice.
Was the court's instruction to the jury proper?
The Court of Appeal affirmed, holding that the trial court did not err in failing to instruct, sua sponte, with respect to second degree murder, that a killing must be deliberate as well as unlawful before express malice may be inferred from the commission of an intentional homicide. The court further held that the trial court, in defining "heat of passion" necessary to reduce murder to manslaughter, properly used the standard of "an ordinarily reasonable person of average disposition" rather than a standard applicable to a female or to the average servient homosexual. Rejecting defendant's final contention that his trial was reduced to a farce and sham by defense counsel's failure to exploit and emphasize that he was a full-fledged homosexual, the court referred to its holding that defendant was entitled to no special instruction in that respect. As to failure to raise a defense of diminished capacity, the court pointed out that the record showed defendant was examined for psychiatric purposes on motion of the defense and that counsel had read the report. Failure to raise the defense, the court held, is presumed to be a tactical decision under those circumstances.