Voluntary Manslaughter - "Cooling Time"

Case: Ex Parte Fraley, 109 P. 295 (1910) [p. 346-347]

Facts: Petitioner saw the deceased standing outside a drugstore, and just walked up to him, greeted him hello,
and shot him to death, stating that it was revenge for the victim's killing of the Petitioner's son 9 or 10 months
prior (victim was acquitted). After Petitioner was arrested, he applied for writ of habeas corpus, seeking to be
let out on bail pending disposition of the murder charge against him, arguing that the proof of his guilt of a
capital offense is not evident or presumption great.

Holding: The court denied bail, holding that uncontradicted testimony showed that proof of his guilt of the
capital offense was evident, and he was not entitled to bail as a matter of right.
• 9-10 months was considered more than sufficient cooling time for a reasonable man (after the fact
victim's alleged killing of petitioner's son)
• A deliberate killing committed in revenge for injury inflicted in the past, no matter how near or remote,
was murder.

Class Notes
• The longer time goes by, the less likely it is you lost control of your facilities.
o More time - more like premeditation rather than heat of passio
• CL - cool down concept
o Way to get around cool down problem if there's a long time period
• Re-define what the provoking event is, then decide if that is enough to establish whether
that event was reasonably provoking
• First, look for provocation, then if no cool down period.
• Whether or not something is sufficient to be provocative, is both subjective and objective
o Objective - it would provoke a reasonable person
o Subjective - the person themselves should also actually be provoked
• Cool down - also must be both objective and subjective

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Notes: [p. 347-350]

• Rationale for "cooling time" rules

o MPC § 210.3 Commentaries: "For the reasonable man, at least, passion subsides and reason
reasserts its sway as the provoking event grows stale … If a reasonable person would have
cooled off before the killing occurred, the passion was held to have subsided, and the
provocation was no longer effective to reduce the homicide from murder to manslaughter.
Although some courts allowed a subsequent event to revive prior provocation, others applied the
cooling-time limitation with surprising strictness. (State v. Gounagias, below)
• Gradual Provocation
o State v. Gounagias (1915) - deceased committed sodomy on the unconscious Δ and told
everyone about it. Δ was taunted and ridiculed, until he finally lost control and killed him 2
weeks after the sodomy. Court rejects Δ's theory of cumulative provocation.
• Victim sodomized Δ, then brags about it all over town, for many weeks. Δ then kills
victim. Δ argues provocation, but is denied - a reasonable person would have cooled
down. Court rejects notion of a cumulative heat of passion. Either you snap or you don’t.
if Δ were to have snapped, it should have been when he was sexually assaulted.
• Maybe if he says the taunting/bragging was the provocation. That gets around the cool
down problem.
 • At CL (and still in many states) words alone are not enough to provoke, unless words
conveyed something that did count.
• When does the provocative event occur?
o People v. Nesler (1997) - Δ's son was sexually assaulted by the Driver. During Driver's criminal
prosecution, Driver allegedly smirked at Δ and her son. Δ lost it, and killed Driver. Δ was
convicted of voluntary manslaughter. Δ was overwrought by trauma, and had consumed drugs -
she didn’t intend to kill him until she lost it.
• Indirect Provocation
o People v. Brooks (1986) - Δ killed his brother's murderer 2 hours after learning of the murder. In
the 2 hours, he went around trying to get information to make sure it was the victim who had
killed his brother. Court held involuntary manslaughter. Not only was indirect provocation
adequate, but court gave Δ leeway in terms of cooling time.
• Other provoked emotions
o Provoked Fear: People v. Tapia (1988) - manslaughter instruction for Δs (drug addicts) accused
of killing their supplier out of fear. Anger subsides over time - not so with fear. The anxiety
created may increase the fear - because looking forward to what might happen.