Put differently, a voluntary manslaughter conviction requires proof sufficient to sustain a conviction for second-degree murder, along with evidence of provocation as a mitigating factor . The absence of this mitigating factor is not a defense to voluntary manslaughter. Instead, the absence of this factor turns voluntary manslaughter into second-degree murder. Thus, the failure to include a charge of voluntary manslaughter in an information charging first or second-degree murder will never prejudice a defendant's defense. Defendant also argues that there was insufficient evidence to sustain his conviction of voluntary manslaughter.
Defendant contends that there was no evidence of adequate provocation.
This is a very curious argument. Logically, if there was insufficient evidence of adequate provocation, defendant is guilty of second-degree murder. In any event, we need not address this question, because there was sufficient evidence to support a finding of adequate provocation in this case. Provocation, or the absence of provocation, is not an element of the prosecutor's case. Thus, provocation need not be proven beyond a reasonable doubt.