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3.2 Rekindling
Some courts allow rekindling defense. They have spoken of the "cooled-off person" who has been "rekindled" either by the sight of the victim (initial provoker) or by words, informational or otherwise, spoken by the victim regarding the initial provocation.14 A spontaneous explosion is not required. Rather, "a significant mental trauma" could have "affected a defendant's mind for a substantial period of time, simmering in the unknown subconscious and then inexplicably coming to the fore. People v. Shelton, 88 Misc.2d 136, 385 N.Y.S.2d 708 (1976). The court gave a jury instruction requiring the jury to assess the cumulative effects of abuse on defendant fear of death or injury with respect to her self-defense claim on what constituted a sufficient provocation to support a conviction for voluntary manslaughter in the case in which the defendant was physically and psychologically abused by the victim for three years. Commonwealth v. Stonehouse,
521 Pa. 41, 555 A.2d 772 (1989).
Many modern courts, however, are unwilling to allow "rekindling" of prior provocation. In
Commonwealth v. LeClair, 708 N.E.2d 107 (Mass. 1999), a mar had for a several weeks suspected his wife of infidelity and upon suddenly confirming his suspicion, he strangled her in rage. The court held that his prior suspicions provided adequate cooling time, and therefore no manslaughter instructions were required.15 A provocation which did not cause instant resentment, but which was only resented after being thought up i and brooded over, was not a provocation sufficient in law to reduce intentional killing from murder to manslaughter, or to second degree murder, which includes every inexcusable, unjustifiable, unpremeditated, intentional killing. Defendant testified that he saw the deceased numerous times after the assault and only after thinking about the incident for several days did he decide to kill the deceased. Under the admitted facts of the case as testified to by defendant himself, his crime could not by any construction of the evidence be reduced to the degree of manslaughter. State v. Gounagias, 88 Wash. 304, 153 P. 9 (1915).
Thai Supreme Court allows rekindling defense. The victim was the cause of a divorce in Thailand between the defendant and the defendant's husband. The defendant and her child were forced out of her husband's home. The defendant did not have enough income for a living and her child had to drop out of the school. The said incidents had aroused the defendant to a certain degree. At the time when the defendant went to ask some money from her husband and met the victim, the victim abused and looked down on the defendant. The defendant fired a bullet at the victim at that moment. The defendant acted under the extreme emotional disturbance. (Supreme Court decision no. 629/1993).
4. Victims Other Than the Provoker
4.1 Associated Provoker
"Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed that passion arises at the time of the offense and is not solely the result of former provocation. Tex. Penal Code Ann. § 1 9.02(a)(2) (2003).Trevino v. State, 2005 Tex. App. LEXIS 895.
Similarly, the defendant could claim provocation defense against associated provokers in Thailand. Mr. A and Mr. B abused the defendant with harsh words for half an hour, the defendant took a sword and stabbed Mr. A and B to death and also stabbed Mr. C who was Mr. A's brother one time. Because Mr. C was around the crime scene and acted as if he supported the abuse, the defendant could claim that his action against Mr. C was under extreme emotional disturbance. (Supreme Court decision no. 1704/1975).
4.2 Accidental Victims
the doctrine of transferred intent provides: where one intends to assault a certain person, but by mistake or accident assaults a different person, the crime so committed, if any, is the same as though the person originally intended to be assaulted had been assaulted. People v. Hurse, 152 Mich. App. 811 (1986). Provocation defense in this case transfers along with the intent. See, e.g. State v. Mauricio, 117 N.J. 402, 568 A.2d 879 (1990).
Like the US, the Penal Code of Thailand section 61 and 72 afford the defendant a provocation defense against accidental victim. Mr. A was drunk. He put his feet on the defendant's head and ran away. The defendant went after Mr. A. The defendant stroke Mr. A with a knife but missed and injured Mr. B. The defendant acted under the extreme emotional disturbance to Mr. B. (Supreme Court decision no. 1682/1966).
4.3 An Innocent Bystander
In both the United States and Thailand, there is no possibility for provocation defense in connection with the charge of murdering non-provoking bystanders.
5. Defendants Who Elicit Provocation
Defendants who induce provocation may not assert provocation defense in both the United States and Thailand.
The defendant intentionally and vigorously started the fracas with an aggravated battery on the victim, and then, the defendant's companions killed the victim. Because the defendant intentionally instigated the assault on the victim, he could not rely on the victim's reasonable response to the assault as evidence of provocation sufficient to mitigate the killing of the victim from murder to voluntary manslaughter. State v. Gaitan, 131 N.M. 758 (2002).
The victim took a leak on the defendant's car. The defendant abused the victim and slapped the victim's head. When the victim fought back, the victim could not claim provocation defense. (Supreme Court decision no. 5371 /1999).
6. Roles of Judge and Jury
In the US the judge to some extent assumes to decide upon the sufficiency of the alleged provocation, when the question arises upon the admission of testimony. The judge may properly exclude the evidence when it is clear as to admit of no reasonable doubt upon any theory, that the alleged provocation could not had any tendency to produce such state of mind, in ordinary men. Mather v. People, 10 Mich. 212, 81 Am. Dec. 781
1862). Once it is determined that there was "evidence of extreme emotional disturbance,"the controlling rule is clear..." it is for the trier of fact to decide, in light of all the circumstances of the case, whether there exists a reasonable explanation or excuse for the actor's mental condition. (Model Penal Code and Commentaries, § 210.3, p. 61).16 In ordinary cases, to determine whether the provocation proved in the particular case is sufficient or reasonable. This is essentially a question of fact, and to be decided with reference to the peculiar facts of each particular case. Mather, 10 Mich. at 212. Jurors from the mode of their selection, coming from the various classes and occupations of society, and conversant with the practical affairs of life, are much better qualified to judge of the sufficiency and tendency of a given provocation and much more likely to fix, with some degree of accuracy, the standard of what constitutes the average of ordinary human nature, that the judge whose habit and course of life give him less experience of the workings of passion in the actual conflict of life. Id.The question of cooling time is also a question of fact for the jury to resolve.
Thailand is a civil law country without a jury system. Both questions of law and questions of fact are decided by judges. |
