Manslaughter and Provocation


Manslaughter and Provocation




Manslaughter and Provocation

According to criminal law provisions, a person is innocent until proven guilty. Manslaughter is an unlawful act that causes death without malice aforethought. The onus of proving guilt beyond all reasonable doubt lies on the prosecution. It is upon the accused person to adduce material evidence that could possibly give an acquittal or reduction of the penalty (U.S v Daniele).

The court grants exculpation or reduction of the conviction depending on the extenuating circumstances that drove the accused person to commit the offence of murder. Extenuating circumstances include, inter alia,adequate provocation, intoxication and temporary insanity. In such circumstances, murder conviction is usually substituted with manslaughter. The punishment for manslaughter is at the court’s discretion (The Unitary Court of Military Justice).

According to Article 119 of theUnitary Court of Military Justice, voluntary manslaughter includes causing the death of a person by an unlawful act or omission with the intention to cause death or grievous bodily harm. Under involuntary manslaughter, there is negligence on the part of the accused person.

In the case of Freddo v State, the accused person was charged with first degree murder. He killed the deceased by hitting him on the head with a steel bar after the deceased called him a son of a bitch. While working together, the deceased had abused the accused person on several occasions despite constant warning. Freddo argued that he had killed the deceased under extreme provocation. Thus he pleaded for reduction of the conviction to a lesser crime of voluntary manslaughter. The trial court’s conviction for second degree murder was affirmed by the court of appeal, holding that the provocation was inadequate to reduce the conviction to manslaughter. Malice aforethought was inferred from the intention to cause death or grievous bodily harm. The concurrence of actus reus and mens rea definitely makes the crime of murder complete.

The defense of provocation will succeed only if the heat of passion resulting from provocation is such as can be deemed adequate and reasonable by an ordinary bystander. Thus the objective test is applicable in such circumstances. The question is whether a reasonable person could have been overtaken by the heat of passion rather than normal judgment. Common law provides that abusive words combined with assault could amount to adequate and reasonable provocation (People v Chevalier).

The Illinois courts established that provocation can also be adequate and reasonable in such circumstances as catching a spouse in, immediately before or immediately after an act of adultery. Mere admission of engaging in adultery without being in the act does not amount to adequate provocation (People v Chevalier).

There was sufficient provocation as to cause a reasonable ordinary man commit murder in the case of Clarke v R. The accused person had electrocuted the deceased, her boyfriend, after he had objected to her idea of aborting and had attempted to strangle her in the process. This was regarded enough provocation and the court substituted the murder conviction with manslaughter.

According to section 3 of the Homicide Act 1957, the trial judge should leave to the jury the subject of the ‘reasonable man test’. Therefore, it is a violation of the statutory provision for a trial court to handle the defense of provocation.

The penalty for manslaughter is a dishonorable incrimination, deprivation of all payments and allowances and 15 years confinement. Involuntary manslaughter attracts a dishonorable incrimination, 10 years confinement and deprivation of all payments and allowances.


The Unitary Court of Military Justice

Homicide Act 1957

Clarke v R (1991) CA


People v Chevalier (1989) CA

U.S v Daniele, 931 F.2d 486 (8th Cir.1991)

Freddo v State, 155 S.W. 170


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