Journal of Criminal Law and Criminology Volume 30 Article 12 Issue 1 May-June Summer 1939 Recent Criminal Cases Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Recent Criminal Cases, 30 Am. Inst. Crim. L. & Criminology 130 (1939-1940) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. RECENT CRIMINAL CASES Edited by the LEGAL PUBLICATIONS BOARD or- NORTHWESTERN UNIVERSITY SCHOOL OF LAW OLIVER M. TOWNSEND, Case Editor COOLING TIME - A DESIRABLE reasonable man is the case of Peo- TEST.- [Kentucky] The strict in- ple v. Ashland, 20 Cal. App. 168, structions and rulings of the courts 128 Pac. 798 (1912), wherein a con- on the element of "cooling time" viction for murder was affirmed in cases of homicide induced by against a defendant who, informed adequate provocation have resulted by his wife that she had twice com- in many unduly severe and unjust mitted adultery with deceased, the punishments. Most courts say that first time under violence, searched no matter how grievous the provo- for deceased and shot him seven- cation may have been, if there was teen hours after he had been first time for a reasonable man to cool informed, a sufficient time to cool his passion the offense is murder; said the court. Another court in whether or not the passion actually Commonwealth v. Moore, 2 Pa. 502 did subside is immaterial. Nevada (1864), held that where the de- v. Hall, 9 Nev. 58 (1893); Nowacryk fendant's wife confessed a few v. People, 139 Ill. 336, 28 N. E. 961 hours before the homicide that she (1891); Ragland v. State, 125 Ala. had committed adultery with de- 12, 27 So. 983 (1900); In Re Far- ceased, there was no ground for ley, 3 Okla. Crim. 719, 101 Pac. 295 holding" that the offense was man- (1910); Holcomb v. State, 103 Tex. slaughter rather than murder. Crim. Rep. 348, 281 S. W. 204 There had been ample time for re- (1926). flection after the defendant learned The legislatures have realized of the adultery An extreme case that a man greatly agitated and is Collins v. Florida,88 Fla. 578, 102 excited by a grave provocation, So. 880 (1924), where the deceased may attempt to "take the law into made several improper proposals his own hands," and have felt that to defendant's wife. To get away in the name of justice a less severe from him defendant and wife punishment than that for murder moved eighteen miles away. Fin- should be provided. Voluntary ally, deceased visited the home of manslaughter statutes have been defendant, forced the wife into his the result. The courts, however, car, drugged her and had inter- appear to have unnecessarily lim- course with her. Upon learning of ited this legislative intent. this incident, defendant searched Exemplary of the majority ruling for deceased and killed him, several limiting cooling time to that of a hours later. The court, although [130] RECENT CRIMINAL CASES not disturbing the jury verdict of the Court were striving for-a less manslaughter, said, ". but in severe punishment. such case the slayer cannot take The Court in State v. Holmes, time and deliberate upon the 12 Wash. 169, 40 Pac. 735 (1895), wrong, and then act upon an im- also applied the majority rule with pulse to avenge the insult by taking a great deal of hesitation. The de- the life of the wrongdoer." fendant, a weak colored boy was assaulted in a most brutal and In the recent case of Golden v. cowardly manner by the deceased, Commonwealth, ... Ky...., 121 S. a large powerful white man, who W. (2d) 21 (1938), it did not occur bragged that he intended to have a to the defense attorney to request, "nigger" before the day was over. or to the trial court to give, an in- As soon as the defendant was able struction on voluntary manslaugh- to break away from the deceased, ter, this failure to do so probably he procured a gun and returned being the result of the previous and shot him. The elapsed time strict interpretations of "cooling between the beating and defend- time." ant's return was from ten to fifteen In that case the defendant was minutes. found guilty of murder in the first The Court said "this is a hard degree. A trifle more than a year case and the condition of the de- previous to the killing, the de- fendant is touching; and whether ceased's brother had seduced and or not, if this court had sat as gotten with child the appellant's jurors in this case, we would have fifteen year old daughter. The af- felt justified in returning a verdict ternoon before the homicide the of murder in the first degree is deceased, while returning the bas- questionable . ." The Court tard child to the home of its then went on to say, that the case mother, wilfully made an indecent having been submitted to the jury exposure of his person before the under proper instructions, and it women in the house. Defendant's being a close question under the efforts to stop such conduct re- facts, they would not disturb the sulted only in jeering replies and verdict. The trial court had in- oaths from the deceased. Appellant structed the jury not to consider was so greatly excited over the de- whether the defendant did cool his ceased's utter contempt for the passions but whether he had time women of his family that he was to cool them. unable to sleep most of that night. A much more satisfying and just The next morning he shot deceased. result was reached by the Mis- The Kentucky Court of Appeals souri Supreme Court in the case of expressed its dissatisfaction with State v. Gruggin, 147 Mo. 39, 47 S. the heavy penalty meted out, but W. 1058 (1898), by applying a lib- found itself handcuffed so it could eral interpretation of the "cooling do nothing else but affirm. Evi- time" factor. In this case the de- dently the court believed that this fendant was informed at nine was not a place for an instruction o'clock in the morning that his on voluntary manslaughter al- young daughter had been raped by though a conviction on that offense the deceased, about a month pre- would have been the answer to viously. The defendant was deeply what both the defense attorney and affected by this incident, and at 132 RECENT CRIMINAL CASES three o'clock that afternoon shot offender by virtue of a prior con- the deceased. The trial judge viction in a United States District charged the jury that they should court in New York for uttering a find the defendant guilty of mur- counterfeit federal reserve bank der, there being sufficient cooling note. The state court held that time. The Supreme Court re- the burglary was his second crime versed, saying a manslaughter because his first offense, uttering a charge should have been given. counterfeit bill, was punishable un- Wharton in his treatise on crim- der a state statute also. People v. inal law (12 ed., Sec. 609) succinct- Fury, 18 N. E. (2d) 650, (N. Y., ly states the more desirable view. 1939). "Whether there has been cool- The habitual offender statute ing time is eminently a question of under which the defendant was fact, varying with the particular sentenced, states that, "A person, case and the condition of the party. who, after having been once or There are some provocations twice convicted within this state, which, with persons of even tem- of a felony, of an attempt to com- perament, lose their power in a few mit a felony, or, under the laws of moments; while there are others any other state, government, or which rankle in the breast for days country, of a crime which, if com- and even weeks, producing tempo- mitted within this state, would be rary insanity. Men's tempera- a felony, commits any felony, ments, also, vary greatly as to the within this state, is punishable up- duration of hot blood; and it must on conviction of such second or be remembered that we must de- third offense, as follows.. ." (ital- termine the question of malice in ics supplied). N. Y. CoNsoL. LAws each case, not by the standard of (Baldwin, 1938), PENAL LAW, sec. an ideal "reasonable man," but by 881. that of the party- to whom the This statute is representative of malice is imputed. Hence, whether. the ambiguity which exists in the there has been cooling time, so as habitual offender statute of many to impute to the defendant malice, states. (CoLo. STAT. ANN. (Michie, is to be decided not by an absolute 1935) c. 550, see. 551, MINN. STAT. rule, but by the conditions of each (Mason, 1927) see. 9931-1, ORE. case." CODE ANN. (1930) sec. 13-2801, Surely, the view as expressed by UTAH REV. STAT. ANN. (1933) sec. Wharton and applied in State v. 103-1-18) "Within this state," may Gruggin (supra) is much more in- be taken to mean, within the state telligent and better serves the ends boundaries, as opposed to, within of justice than does the view ap- the jurisdiction of the state courts. plied in the majority of the cases.