Lang v. State

¹³⁰ Per Curiam. The appellant, John Frederick Lang, was convicted of assault with intent to murder by a jury in the Criminal Court of Baltimore, Judge Meyer M. Cardin presiding. He was sentenced to ten years under the jurisdiction of the Department of Correction. In this appeal the following questions are properly before us : (1) Did the lower court err in failing to instruct the jury that a homicide, if committed in the “heat of passion”, is reduced from murder to manslaughter; thereby reducing the crime charged, assault with intent to murder, to assault ?

(2) Were the instructions of the court, when considered in their entirety, confusing to the jury and prej udicial to the appellant ? I It is quite settled that it is incumbent upon the court, when requested, to give an advisory instruction on every essential point of law supported by the evidence. Malloy v. State, 4 Md. App. 420, 423 , 243 A. 2d 649 (1968) ; Mock v. State, 2 Md. App. 771, 774, 237 A. 2d 811 (1967). The exact point of dispute is whether there was sufficient evidence adduced at trial to support an instruction on the heat of passion doctrine.

The particular question seems never to have been directly raised before this Court. The type of inquiry, however, is a familiar one. See Mock v. State, supra at 774-75. The relevant elements of the heat of passion doctrine are (a) that there must be passion actually aroused in the actor, 1 (b) that such passion must be an intensity sufficient to obscure the reason of the actor, 2 and (c) that such passion must be due ¹³¹ to a legally adequate provocation. 3 Thus, in order for instruction regarding heat of passion to be required, evidence must be introduced from which the jury could have found each of the above mentioned elements.

We shall consider the elements seriatim. Evidence was introduced which could support a finding that appellant was in passionate anger or, what is more likely, that he was in passionate terror. As we mentioned above, this element involves the appellant’s subjective state of mind. See note 1, supra.

One witness testified that the appellant “must have been awfully scared because he looked . . . like animals . . . he was all shakey ... his face was sort of distorted . . . how you get when you’re real mad or something.” Another witness testified that appellant “looked pretty scared . . . his face didn’t seem contorted.” The appellant himself testified as follows : “Q. Why did you shoot him ? “A. I was scared. I didn’t know what he was going to do. “Q. What were you scared of? “A. I was scared of him, what he was going to do. I didn’t know if he had a gun or what.” This testimony might also have been sufficient to support a finding that the anger or terror was sufficiently intense to obscure the appellant’s reason, again a subjective inquiry. See note 2, supra.

With respect to the element of adequate provocation, the evidence showed that immediately before the shooting the victim called the appellant “a chump” and “a chicken,” dared the appellant to fight, shouted obscenities at the appellant, pointed his finger at the appellant, and shook his fist at the appellant, all ¹³² of this occurring at distances variously ranging from five to thirty feet. The victim was approximately fifteen feet from the appellant when shot. During the entire incident the victim was on the lawn outside of the appellant’s apartment and the appellant was inside the apartment. During the latter part of the incident the appellant was standing at his window.

The window sill was approximately four feet from the ground level and under the window was a window well six to seven feet in length and three to four feet in depth, with no figure given at trial as to width. At this point our inquiry becomes an objective one, namely, whether the above facts constitute such provocation as would drive a reasonable and ordinary man into passionate anger or terror. See note 3, supra. It is generally held that mere words, threats, menaces or gestures, however offensive and insulting, do not constitute adequate provocation.

Davis v. State, 204 Md. 44, 54 , 102 A. 2d 816 (1954) (by implication) ; Wharton, Criminal Law § 277 (Anderson ed.); Warren, Homicide § 92, 95; Annot. 2 A.L.R. 3d 1292 . However, there is authority that sufficient