The presence of "sudden passion" or "heat of blood" are not elements of the offense of manslaughter, but, rather, are factors in the nature of mitigating circumstances which may reduce the grade of homicide. State v. Thorne, 93-859 (La.App. 5th Cir. 2/23/94), 633 So.2d 773, 777; State v. Holliday, 623 So.2d at 130; State v. Maddox, 522 So.2d 579, 582 (La.App. 1st Cir. 1988). When the preponderance of the evidence shows that a homicide was committed in "sudden passion" or "heat of blood" which would deprive an average person of his self-control and cool reflection, a jury errs in returning a verdict of second degree murder.
The existence of “sudden passion” and “heat of blood” are not elements of the offense but, rather, are factors in the nature of mitigating circumstances that may reduce the grade of homicide. State v. Maddox, 522 So.2d 579, 582 (La.App. 1st Cir.1988). Manslaughter requires the presence of specific intent to kill or inflict great bodily harm.
The existence of "sudden passion" and "heat of blood" are not elements of the offense but, rather, are factors in the nature of mitigating circumstances that may reduce the grade of homicide. State v. Maddox, 522 So.2d 579, 582 (La. App. 1 Cir. 1988). Manslaughter requires the presence of specific intent to kill or inflict great bodily harm.
The existence of "sudden passion" and "heat of blood" are not elements of the offense but, rather, are factors in the nature of mitigating circumstances that may reduce the grade of homicide. State v. Maddox, 522 So. 2d 579, 582 (La. App. 1st Cir. 1988). Manslaughter requires the presence of specific intent to kill or inflict great bodily harm.
Once the jury finds the elements of second-degree murder then it has to determine whether the circumstances indicate that the crime was actually manslaughter. State v. Maddox, 522 So.2d 579 (La.App. 1 Cir. 1988). The standard on review is, viewing the evidence in the light most favorable to the prosecution, whether a rational trier of fact could have found that the mitigatory factors were not established by a preponderance of the evidence.
Once the jury finds the elements of second-degree murder then it has to determine whether the circumstances indicate that the crime was actually manslaughter. State v. Maddox, 522 So.2d 579 (La.App. 1st Cir. 1988). The victim's minor son testified that he could hear the defendant and the victim having a disagreement in the kitchen area concerning some pictures.
However, the guilty verdict in this case demonstrates that the jury concluded that this argument was not sufficient provocation to deprive an average person of his self-control and cool reflection. See State v. Maddox, 522 So.2d 579, 582 (La.App. 1st Cir. 1988); State v. Kennedy, 494 So.2d 550, 553 (La.App. 1st Cir.), writ denied, 495 So.2d 290 (La. 1986). Although the defendant and the victim were arguing over their child prior to the shooting, witnesses stated that they were not screaming or shouting at each other; and the argument was not characterized as "heated."
Moreover, the determination of whether sufficient provocation existed for reduction of the grade of homicide is a factual question which must be answered by the fact-finder in the case. State v. Maddox, 522 So.2d 579 (La.App. 1st Cir. 1988). The trial judge was the fact-finder in this case.