Facts: Sety killed Don Cue after cue stumbled into his campsite and began to boast of killing several people. Sety went inside his camper to secure a gun, as he came out Cue was pointing a gun at him laughing. Cue began shooting across the river and sety eventually overpowered Cue and placed him under citizen’s arrest. As they headed for the dam keeper’s houe Cue attempted to flee, he was shot twice and subdued by Sety. Up to this point the State maintains no culpability by Sety. They again proceeded to the house, Cue again apparently resisted. Sety’s story is contrary to the facts thereafter. However, Cue is shot again and killed.
Issue: Whether the evidence was sufficient to support murder or voluntary manslaughter?
Holding: Yes as to Voluntary manslaughter.
Procedure: Jury trial for murder, directed verdict to voluntary manslaughter. Affirmed.
Rule: Manslaughter is the “unlawful killing of a human without malice." Malice is defined as the absence of justification, excuse or mitigation.
Court Rationale: The state conceded Sety’s use of force was fully justified and not culpable. The killing was precipitated by provocation and terror by Cue. This is mitigation without malice. The mere use of a weapon does not supply the element of malice.