Adequate Provocation and “Cooling Time”

February 22, 2006

The same principles which govern, as to the extent to which the passions must be excited and reason disturbed, apply with equal force to the time during which its continuance may be recognized as a ground for mitigating the homicide to the degree of manslaughter, or, in other words, to the question of cooling time.  This, like the provocation itself, must depend upon the nature of man and the laws of the human mind, as well as upon the nature and circumstances of the provocation, the extent to which the passions have been aroused, and the fact, whether the injury inflicted by the provocation is more or less permanent or irreparable.  The passion excited by a blow received in a sudden quarrel, though perhaps equally violent for the moment, would be likely much sooner to subside than if aroused by a rape committed upon a sister or a daughter, or the discovery of an adulterous intercourse with a wife; and no two cases of the latter kind would be likely to be identical in all their circumstances of provocation.  No precise time, therefore, in hours or minutes, can be laid down by the court, as a rule of law, with which the passions must be held to have subsided and reason to have resumed its control, without setting at defiance the laws of man’s nature, and ignoring the very principle on which provocation and passion are allowed to be shown, at all, in mitigation of the offense.  The question is one of reasonable time, depending upon all the circumstances of the particular case; and where the law has not defined, and can not without gross injustice define the precise tim which shall be deemed reasonable, as it has with respect to notice of the dishonor of commercial paper.  In such case, where the law has defined what shall be reasonable time, the question of such reasonable time, the facts being found by the jury, is one of law for the court; but in all other cases it is a question of fact for the jury; and the court can not take it from the jury by assuming to decide it as a question of law, without confounding the respective provinces of the court and jury.  In Rex. v. Howard and Rex. v. Lynch, this question of reasonable cooling time was expressly held to be a question of fact for the jury.  I am aware there are many cases in which it has been held a question of law; but I can see no principle on which such a rule can rest.  The court should, I think, define to the jury the principles upon which the question is to be decided, and leave them to determine whether the time was reasonable under all the circumstances of the particular case.  I do not mean to say that the time may not be so great as to enable the court to determine that it is sufficient for the passion to have cooled, or so to instruct the jury, without error; but the case should be very clear.  And in cases of applications for a new trial, depending upon the discretion of the court, the question may very properly be considered by the court.

Maher v. People, 10 Mich. 212, 7 (1862).

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