Homicide- Provocation and Extreme Emotional Disturbance: The US and Thai Approach:
A Comparative Study *

Kanok Jullamon*

1. INTRODUCTION

Homicide is defined by the common law as the unjustified and unexcused killing of a human being. Prior to the Model Penal Code, most American jurisdictions divide homicide into two major categories, murder or manslaughter, and then subdivide these categories to reflect differences in available punishments. Murder is divided into first degree (for which a defendant could be executed) and second degree (which did not carry the death penalty). Manslaughter is viewed as a less serious killing.¹ Manslaughter is often defined as "an unlawful homicide without malice aforethought." This is then subdivided between "voluntary" and "involuntary" manslaughter: 1. Voluntary manslaughter is a killing done "on a sudden" in the "heat of passion" after "adequate provocation." and 2. Involuntary manslaughter is either "merely" reckless (but not the result of a "depraved mind") or "criminal negligent" killing.²

Homicide in the Penal Code of Thailand is defined as an act of putting an end to another human being's life. Homicide is divided into three subcategories: murder, negligent murder, and manslaughter. Murder is defined as causing death to another person purposely. (The Penal Code of Thailand, § 288). A person acts purposely when he conducts with consciousness to cause a result or he is aware that his conduct will practically cause such a result. (The Penal Code of Thailand, § 59 paragraph 2). Negligent murder is butting and to another person's life by negligence. (The Penal Code of Thailand, §, 291). A person acts negligently when he conducts with a failure to exercise sufficient standard of care that a reasonable person would observe in the actor's situation. (The Penal Code of Thailand, § 59 paragraph 4). A person is guilty of Manslaughter if he, without purpose of causing death, causes bodily injury to another person leading to the death of such person. (The Penal Code of Thailand, § 290).

The idea s behind differentiation between homicide and homicide by provocation or homicide under extreme emotional disturbance can be explained as the following. The homicide must, in all ordinary cases, have been committed with some degree of coolness and deliberation or, at least, under circumstances in which ordinary men ... would not be liable to have their reason clouded or obscured by passion; and the act must be prompted by, or the circumstances indicate that it sprung from, a wicked, depraved or malignant mind... Mather v. People, 10 Mich. 212, 81 Am. Dec. 781 (1862). But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is The result of, the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter. Id.

Voluntary manslaughter is the intentional killing in the heat of passion as a result of severe provocation. As a concession to human frailty, a killing, which would otherwise constitute murder, is mitigated to voluntary manslaughter. State v. Guebara, 236 Kan. 791, 696 P.2d 381 (1985). The "manslaughterer" may be morally guilty of not learning how to control his passion, but that is not the same level of immorality as pur­posely "premeditating" and killing.³ "Passion on the part of the slayer, no matter how violent will not relieve him from liability for murder unless it is engendered by a serious provocation which the law recognizes as being reasonably adequate." If the provocation is inadequate, the crime is murder. People v. Matthews, 21 Ill. App.3d 249, 314 N.E.2d 15 (1974). The fundamental of the inquiry (in determining whether a homicide is voluntary manslaughter) is whether or not the defendant's reason was, at the time of his act, so disturbed or obscured by some passion-not necessarily fear and never, of course, that passion for revenge-to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment." People v. Borchers, 50 Cal.2d 321, 325 P.2d 97 (1958).

In the Thai Penal Code, Provocation or Extreme Emotional Disturbance has been enacted in section 72 as a mitigating factor for any offenses. "Any person commits an offense by provocation or under the extreme emotional disturbance; the court may inflict upon him a sentence below the standard range of such offenses to any extent." (The Penal Code of Thailand, §72). In sentencing, the court may consider provocation in deliberation of the final terms of imprisonment. If the court finds the defendant commits a homicide by provocation, according to section 72 of the Penal Code of Thailand, the court may lower the punishment terms to any extent than that provided by the law of such
offenses.

In the United States, in order to reduce a homicide from murder to voluntary manslaughter, there must be provocation, and such provocation must be recognized by the law as adequate. A provocation is adequate if it is calculated to deprive a reasonable men of self-control and to cause him to act out of passion rather than reason. In order for a defendant to be entitled to a reduced charge because he acted in the heat of passion, his emotional state of mind must exit at the time of the act and it must have arisen from circumstances constituting sufficient provocation. State v. Guebara, 236 Kan. At 791. It is enough if the killing occurs while the defendant’s capacity to form an  intent to murder is diminished by an extreme mental or emotional disturbance deemed to have a reasonable explanation or excuse from the defendant’s standpoint. State v. Dumlao, 6 Haw.App. 173, 715 P.2d 822 (1986). That extreme emotional disturbance is the emotional state of an individual who: (a) has no mental disease or defect that rises to the level established by the Penal Law and (b) is exposed to an extremely unusual and overwhelming stress; and (c) has an extreme emotional reaction to it, as a result of which there is a loss of self-control and reason is overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation or other similar emotions. People v. Shelton, 385 N.Y.S. 2d 708 (1976).

Today the test of homicide by provocation has four elements: (1) provocation that would rouse a reasonable person to the heat of passion; (2) actual provocation of the defendant; (3) a reasonable person would not have cooled off in the time between the provocation and the offense; and (4) the defendant did not cool off. Dumlao, 6 Haw. App. at 173. "Extreme mental or emotional disturbance" sometimes is, but should not be, confused with the "insanity" defense. The point of the extreme emotional disturbance defense is to provide a basis for mitigation that differs from a finding of mental defect or disease precluding criminal responsibility. The disturbance was meant to be understood in relative terms as referring to a loss of self-control due to intense feelings. Id.

From section 72 of the Penal Code of Thailand, the criteria for a provocation defense are (1) sufficiency of provocation act; (2) actual provocation of defendant; and (3) an act of the defendant while the reasonable person in his situation has not cooled off.

1. Types of Provocation Acts
"Heat of passjon" means any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror. Such emotional state of mind must be of such a degree as would cause an ordinary man to act on impulse without reflection. State v. Guebara, 236 Kan. at 791.

Traditional circumstances of provocation which are sufficient to mitigate the crime of murder to manslaughter or which are adequate as a mitigating factor for any offense are the followings:

1.1 Extreme Assault or Battery Upon the Defendant
In one US case, the defendant and the deceased lived in the same apartment. The deceased came home and broke into the bathroom where the defendant was showering and yelled intelligibly at the defendant. Immediately afterwards, the deceased threatened to beat the defendant. The deceased continued pushing and shoving at the defendant. The defendant had never seen the deceased in such a rage and became afraid that the victim was going to assault him. The defendant went to his bedroom and retrieved a loaded gun with the intent to frighten the deceased and cause the deceased to calm down and stop threatening and pushing him. When the defendant exited his room with the gun, he "freaked out" and "lost it." He shot the victim nine times, emptying the gun. Defendant presented sufficient evidence to support his requested instructions on provocation. Cassels v. State, 92 P.3d 951 (Colo. 2004).

In Thailand, extreme assault or battery upon the defendant is also recognized As a sufficient provocation act.

For example, the deceased forced the defendant to drink alcohol beverage even though the defendant said that he was sick and did not wish to drink. The deceased threw the beer glass at the defendant and pushed the defendant to the ground and held him in that position. The deceased dared the defendant to stab him. The defendant stabbed the deceased one time. Defendant acted under provocation. (Supreme Court decision no. 2264/1977).⁴

Footnotes

** This article is a revised version of the paper which was submitted as a course fulfillment for Criminal Law- 1 at The University of Chicago The Law School for academic year 2004-2005. The author greatly acknowledges Assistant Professor Carolyn Frantz of The University of Chicago The Law School for supervising the original paper.
** Legal Officer Level 4, The Legal Execution Department, Ministry of Justice. LL.B. (First Class Honors) (Chulalongkorn University), of Thai Barrister-at-Law, LL.M. (New York University), LL.M. (The University of Chicago).
1. Richard G. Singer & John Q. La Fond, Criminal Law: Examples and Explanations, 147 (2nd ed. 2001).
2. Id. at 170.
3. Id. At 175
4. For ease of comparison between the court decisions of the two countries, the author converted the decision year of the Thai Supreme Court decisions from Buddhist Era (B.E.) to Anno Domini (A.D.).