Commonwealth v. Schnopps, 417 N.E.2d 1213 (Mass. 1981). · Go Syfert
Commonwealth v. Schnopps, 417 N.E.2d 1213 (Mass. 1981). Cases Citing This Book View Copy Cite
95 citation events (42 in the last 25 years) across 8 distinct courts.
Strongest positive: Commonwealth v. Christopher S. Fratantonio (mass, 2025-03-17)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Commonwealth v. Christopher S. Fratantonio
Mass. · 2025 · confidence medium
This "very limited exception" applies only "where the statements constitute a 'peculiarly immediate and intense offense to [one's] sensitivities.'" Groome, supra at 221 , quoting Benjamin, supra. Applying these principles in the context of marital infidelity, under the law applicable at the time of the defendant's trial, a defendant could pursue this defense based on evidence of a "sudden discovery of present spousal infidelity," Commonwealth v. Andrade, 422 Mass. 236, 237-238 (1996), citing Commonwealth v. Bermudez, 370 Mass. 438, 440-442 (1976), including discovery by means of a sudden oral …
discussed Cited as authority (rule) Commonwealth v. Iacoviello
Mass. App. Ct. · 2016 · confidence medium
Such an instruction is warranted “if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Andrade, 422 Mass. 236, 237 (1996), quoting from Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Bins
Mass. · 2013 · confidence medium
Commonwealth v. Nardone, supra. See Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984) (killing must follow provocation before sufficient time elapses for defendant’s temper to cool).
discussed Cited as authority (rule) Commonwealth v. Lennon
Mass. · 2012 · confidence medium
A defendant is entitled to an instruction on voluntary manslaughter based on reasonable provocation if, viewing the evidence in the light most favorable to him, “there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Andrade, 422 Mass. 236, 237 (1996), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Smith
Mass. · 2011 · confidence medium
In support of his argument that a voluntary manslaughter instruction based on provocation was required, the defendant relies on the evidence that he discovered the victim “engaging in oral sex with another man.” See Commonwealth v. Anderson, 408 Mass. 803, 804-805 (1990); Commonwealth v. Schnopps, 383 Mass. 178, 180-181 (1981), S.C., 390 Mass. 722 (1984). “[Provocation occurs only when an action of the victim triggers a sudden loss of self-control in the defendant. . . . [T]he killing must occur before there is sufficient time for the defendant to cool off.” (Emphasis in original.
discussed Cited as authority (rule) Commonwealth v. Hinds
Mass. · 2010 · confidence medium
A jury instruction on reasonable provocation is warranted ‘if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.’ Commonwealth v. Andrade, 422 Mass. 236, 237 (1996), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
cited Cited as authority (rule) Commonwealth v. Benson
Mass. · 2009 · confidence medium
Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Mercado
Mass. · 2008 · confidence medium
A killing is manslaughter if there is “provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Burnham
Mass. · 2008 · confidence medium
The defendant contends that the evidence taken in the light most favorable to him, Commonwealth v. Schnopps, 383 Mass. 178, 179 (1981), S.C., 390 Mass. 722 (1984), required the judge to instruct the jury on involuntary manslaughter based on an unintentional killing resulting from “a battery not amounting to a felony, when the defendant knew or should have known that the battery he was committing endangered human life.” Commonwealth v. Sires, 413 Mass. 292 , 302 n.10 (1992).
discussed Cited as authority (rule) Commonwealth v. Espada
Mass. · 2008 · confidence medium
A voluntary manslaughter instruction based on reasonable provocation is warranted if “there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Andrade, 422 Mass. 236, 237 (1996), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Colon
Mass. · 2007 · confidence medium
A voluntary manslaughter instruction based on provocation is appropriate “if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Andrade, 422 Mass. 236, 237 (1996), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Acevedo
Mass. · 2006 · confidence medium
A jury instruction on reasonable provocation is warranted “if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Andrade, 422 Mass. 236, 237 (1996), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. LeClair
Mass. · 2006 · confidence medium
An instruction on voluntary manslaughter is appropriate if, viewing the evidence in the light most favorable to the defendant, ‘there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.’ Commonwealth v. Andrade, 422 Mass. 236, 237 (1996), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981)[, S.C., 390 Mass. 722 (1984)]. ‘The evidence must be sufficient to create a reasonable doubt in the minds of a r…
discussed Cited as authority (rule) Commonwealth v. Keohane (2×)
Mass. · 2005 · confidence medium
Commonwealth v. Schnopps, 383 Mass. 178, 179 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Bockman (2×) also: Cited "see, e.g."
Mass. · 2004 · confidence medium
An instruction on voluntary manslaughter is appropriate “if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Andrade, 422 Mass. 236, 237 (1996), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Brum
Mass. · 2004 · confidence medium
Even evidence that “may not be of a character to inspire belief,” Commonwealth v. Garabedian, supra, quoting Commonwealth v. Schnopps, 383 Mass. 178, 182 (1981), S.C., 390 Mass. 722 (1984), may warrant an instruction on manslaughter, because judges are required to treat such evidence as if it were true.
discussed Cited as authority (rule) Commonwealth v. Rolon
Mass. · 2003 · confidence medium
Rolon’s “violent retaliation” occurred only after a lengthy opportunity — and after repeated advice — to “cool down.” See Commonwealth v. Andrade, 422 Mass. 236, 237 (1996), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984) (killing must follow provocation “before sufficient time had elapsed for the accused’s temper to cool”); Commonwealth v. McLeod, 394 Mass. 727, 738 , cert. denied sub nom.
cited Cited as authority (rule) Lattimore v. Dubois
1st Cir. · 2002 · confidence medium
Commonwealth v. Schnopps, 383 Mass. 178 , 417 N.E.2d 1213, 1215 (1981).
examined Cited as authority (rule) Commonwealth v. Groome (3×) also: Cited "see, e.g."
Mass. · 2001 · confidence medium
An instruction on voluntary manslaughter is appropriate “if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Andrade, 422 Mass. 236, 237 (1996), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Lattimore v. Dubois (2×)
D. Mass. · 2001 · confidence medium
Viewed in the light most favorable to Lattimore, Schnopps , 383 Mass, at 179, 417 N.E.2d 1213 (“[i]n deciding whether the judge should have charged on manslaughter, we assume the version of the facts most favorable to the defendant”), I conclude that the evidence was sufficient to establish provocation adequate for a manslaughter instruction. 26 The record establishes a pattern of terror, violence, and abuse directed by Glen Smith towards his ex-wife and her neighbors that escalated in the weeks of Linda’s nascent romance with Lattimore.
discussed Cited as authority (rule) Commonwealth v. Rosado
Mass. · 2001 · confidence medium
“In deciding whether the judge should have charged on manslaughter, we assume the version of the facts most favorable to the defendant.” Commonwealth v. Maskell, 403 Mass. 111, 116 (1988), quoting Commonwealth v. Schnopps, 383 Mass. 178, 179 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Vinton
Mass. · 2000 · confidence medium
“A killing is manslaughter if there is ‘provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.’ ” Commonwealth v. LeClair, 429 Mass. 313, 316 (1999), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
cited Cited as authority (rule) Commonwealth v. Rodriguez
Mass. · 2000 · confidence medium
See Commonwealth v. Andrade, 422 Mass. 236, 237-238 (1996); Commonwealth v. Schnopps, 383 Mass. 178, 180-181 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Benjamin
Mass. · 2000 · confidence medium
See, e.g., Commonwealth v. Estremera, 383 Mass. 382, 392 (1981); Commonwealth v. Schnopps, 383 Mass. 178, 181 (1981), S.C., 390 Mass. 722 (1984); Commonwealth v. Bermudez, 370 Mass. 438, 441-442 (1976).
cited Cited as authority (rule) Commonwealth v. Gruning
Mass. App. Ct. · 1999 · confidence medium
There must also be a “causal connection between the provocation, the heat of passion, and the killing.” Ibid., quoting from Commonwealth v. Schnopps, 383 Mass. 178, 180-181 (1981).
discussed Cited as authority (rule) Commonwealth v. LeClair (2×)
Mass. · 1999 · confidence medium
A killing is manslaughter if there is “provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Thomas
Mass. · 1999 · confidence medium
“A jury instruction on voluntary manslaughter is warranted ‘if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.’ ” Seabrooks, supra at 514 , quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Masello
Mass. · 1998 · confidence medium
“A jury instruction on voluntary manslaughter is warranted ‘if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.’ ” Commonwealth v. Seabrooks, 425 Mass. 507, 514 (1997), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Seabrooks
Mass. · 1997 · confidence medium
The judge correctly declined to instruct the jurors on voluntary manslaughter. 8 A jury instruction on voluntary manslaughter is warranted “if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Caines
Mass. App. Ct. · 1996 · confidence medium
I have been pretty well conceding it.” See Commonwealth v. Schnopps, 383 Mass. 178, 179-182 (1981) (A voluntary manslaughter instruction was required where the defendant claimed that he went “berserk” and shot his wife upon her admission of adultery).
examined Cited as authority (rule) Commonwealth v. Andrade (3×)
Mass. · 1996 · confidence medium
Viewing the evidence in the light most favorable to the defendant, see Commonwealth v. Schnopps, 383 Mass. 178, 179 (1981), S.C., 390 Mass. 722 (1984), voluntary manslaughter was a possible verdict, although an unlikely one.
discussed Cited as authority (rule) Commonwealth v. Simmons
Mass. · 1995 · confidence medium
“As a result of that explosion, I would ask you to return a verdict in this particular case of guilty, guilty of manslaughter in the death of [the victim].” The voluntary manslaughter instruction could have -been based on the discussion in Commonwealth v. Schnopps, 383 Mass. 178, 180-182 (1981), S.C., 390 Mass. 722 (1984), that evidence from which a jury could find that a defendant shot his wife in the heat of passion after her sudden admission of adultery required an instruction on voluntary manslaughter.
discussed Cited as authority (rule) Commonwealth v. Pierce
Mass. · 1994 · confidence medium
“Instructions on voluntary manslaughter must be given if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Halbert, 410 Mass. 534, 538 (1991), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Halbert
Mass. · 1991 · confidence medium
“Instructions on voluntary manslaughter must be given if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) People v. Chevalier
Ill. · 1989 · signal: contra · confidence medium
App. 3d 1043, 1047 (defendant’s long-held belief that his wife had committed adultery was not a basis for a voluntary manslaughter instruction); contra Commonwealth v. Schnopps (1981), 383 Mass. 178, 181 , 417 N.E.2d 1213, 1215 (a sudden admission of adultery is equivalent to a discovery of the act itself, and is sufficient evidence of provocation).
cited Cited as authority (rule) Commonwealth v. Maskell
Mass. · 1988 · confidence medium
Commonwealth v. Schnopps, 383 Mass. 178, 181 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Parker
Mass. · 1988 · confidence medium
Instructions on voluntary manslaughter are required “if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.” Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).
discussed Cited as authority (rule) Commonwealth v. Garabedian (2×)
Mass. · 1987 · confidence medium
However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true." Commonwealth v. Schnopps, 383 Mass. 178, 182 (1981), S.C., 390 Mass. 722 (1984), quoting Commonwealth v. Campbell, 352 Mass. 387, 398 (1967).
cited Cited as authority (rule) Commonwealth v. Piedra
Mass. App. Ct. · 1985 · signal: cf. · confidence medium
Cf. Commonwealth v. Schnopps, 383 Mass. 178, 180-181 (1981) (discovery of spouse’s adultery deemed sufficient evidence of provocation).
cited Cited as authority (rule) Commonwealth v. Griffin
Mass. App. Ct. · 1985 · confidence medium
We summarize those facts, assuming “the *188 version of the facts most favorable to the defendant.” Commonwealth v. Schnopps, 383 Mass. 178, 179 (1981).
discussed Cited as authority (rule) Commonwealth v. Guerriero
Mass. App. Ct. · 1984 · confidence medium
(A second affidavit of one Maureen Mercer in support of the motion has been abandoned, see Commonwealth v. Schnopps, 383 Mass. 178 n.1 [1981].) Franks had been jointly indicted with Guerriero for the victim’s murder, but the indictment against Franks had been nol pressed by the Commonwealth prior to trial.
cited Cited as authority (rule) Commonwealth v. Bellamy
Mass. · 1984 · confidence medium
Commonwealth v. Schnopps, 383 Mass. 178, 181-182 (1981).
discussed Cited as authority (rule) Commonwealth v. Dustin
Mass. · 1984 · confidence medium
Although there were implications of adultery between the defendant’s wife and the victim Evers, this case, considering the deliberate nature of the killing, does not approach the facts of Commonwealth v. Schnopps, 383 Mass. 178,180-181 (1981), S.C., 390 Mass. 722 (1984), and the narrow rule of that case. 5.
discussed Cited as authority (rule) Commonwealth v. Robinson
Mass. App. Ct. · 1982 · confidence medium
“A verdict of voluntary manslaughter requires the trier of fact to conclude that there is a causal connection between the provocation, the heat of passion, and the killing.” Commonwealth v. Schnopps, 383 Mass. 178, 180-181 (1981).
discussed Cited as authority (rule) Commonwealth v. Brown (2×) also: Cited "see, e.g."
Mass. · 1982 · confidence medium
In Commonwealth v. Schnopps, 383 Mass. 178, 180-182 (1981), where the evidence warranted a finding that the victim suddenly admitted adultery to her spouse, he was entitled to a manslaughter instruction because “[t]he existence of sufficient provocation is not foreclosed absolutely because a defendant learns of a fact from oral statements rather than from personal observation.” Id. at 181 , quoting from Commonwealth v. Bermudez, 370 Mass. 438, 440 (1976).
discussed Cited as authority (rule) Commonwealth v. Marler
Mass. App. Ct. · 1981 · confidence medium
See Powers v. Sturtevant, 199 Mass. 265, 266 (1908), S.C., 200 Mass. 519 (1909); Commonwealth v. Campbell, 352 Mass. 387, 398 (1967); Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975); Commonwealth v. Martin, 369 Mass. 640, 644 (1976); Commonwealth v. Rodriguez, 370 Mass. 684, 687-689 (1976); Commonwealth v. Klein, 372 Mass. 823, 831, 834 (1977); Commonwealth v. Schnopps, 383 Mass. 178, 181, 182 (1981); Commonwealth v. Thurber, 383 Mass. 328, 331 (1981); Commonwealth v. Carson, 10 Mass. App. Ct. 920 , 921 & n.1 (1980); Commonwealth v. Deagle, 10 Mass. App. Ct. 748, 750-751, 751-752 (1980);…
discussed Cited "see" Commonwealth v. Ronchi (2×)
Mass. · 2023 · signal: see · confidence high
See Commonwealth v. Schnopps, 383 Mass. 178, 180-182 (1981), S.C., 390 Mass. 722 (1984). 1.
discussed Cited "see" Tassinari v. Medeiros (2×)
D.D.C. · 2018 · signal: see · confidence high
See Commonwealth v. Schnopps , 383 Mass. 178 , 181-82, 417 N.E.2d 1213 (1981).
cited Cited "see" Tassinari v. Medeiros
D. Mass. · 2018 · signal: see · confidence high
See Commonwealth v. Schnopps, 383 Mass. 178 , 181- 82 (1981).
discussed Cited "see" Commonwealth v. Howard
Mass. · 2018 · signal: see · confidence high
See Commonwealth v. Schnopps, 383 Mass. 178, 180-182 (1981) (reasonable provocation instruction warranted by victim's admission of adultery). "[S]udden combat is among those circumstances constituting reasonable provocation." Camacho, supra, quoting Commonwealth v. Walczak, 463 Mass. 808, 820 (2012) (Lenk, J., concurring).
Retrieving the full opinion text from the archive…
Commonwealth vs. George A. Schnopps
Massachusetts Supreme Judicial Court.
Mar 16, 1981.
417 N.E.2d 1213
1981 Mass. LEXIS 1150
John F. Rogers (David O. Burbank with him) for the defendant., Francis X. Spina, Assistant District Attorney (Anthony J. Ruberto, Jr., District Attorney, with him) for the Commonwealth.
Hennessey, Braucher, Kaplan, Wilkins, Liacos, Abrams.
Cited by 69 opinions  |  Published
Abrams, J.

On October 13, 1979, Marilyn R. Schnopps was fatally shot by her estranged husband George A. Schnopps. A jury convicted Schnopps of murder in the first degree, and he was sentenced to the mandatory term of life imprisonment. [1] Schnopps claims that the trial judge erred[*179] by refusing to instruct the jury on voluntary manslaughter. We agree. We reverse and order a new trial.

The voluntary manslaughter claim. Schnopps does not claim that there was insufficient evidence to warrant the jury’s verdict of murder in the first degree. He claims, however, that there is evidence which required the judge to instruct the jury on voluntary manslaughter. In deciding whether the judge should have charged on manslaughter, we assume the version of the facts most favorable to the defendant. Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975).

We summarize those facts. Schnopps testified that his wife had left him three weeks prior to the slaying. He claims that he first became aware of the problems in his fourteen-year marriage at a point about six months before the slaying. According to the defendant, on that occasion he took his wife to a club to dance, and she spent the evening dancing with a co worker. On arriving home, the defendant and his wife argued over her conduct. She told him that she no longer loved him and that she wanted a divorce. Schnopps became very upset. He admitted that he took out his shotgun during the course of this argument, but he denied that he intended to use it.

During the next few months, Schnopps argued frequently with his wife. The defendant accused her of seeing another man, but she steadfastly denied the accusations. On more than one occasion Schnopps threatened his wife with physical harm. He testified he never intended to hurt his wife but only wanted to scare her so that she would end the relationship with her co worker.

One day in September, 1979, the defendant became aware that the suspected boy friend used a “signal” in telephoning Schnopps’ wife. Schnopps used the signal, and his wife answered the phone with “Hi, Lover.” She hung up immediately when she recognized Schnopps’ voice. That afternoon she did not return home. Later that evening, she informed Schnopps by telephone that she had moved to her mother’s house and that she had the children with her. She[*180] told Schnopps she would not return to their home. Thereafter she “froze [him] out,” and would not talk to him. During this period, the defendant spoke with a lawyer about a divorce and was told that he had a good chance of getting custody of the children, due to his wife’s “desertion and adultery.”

On the day of the killing, Schnopps had asked his wife to come to their home and talk over their marital difficulties. Schnopps told his wife that he wanted his children at home, and that he wanted the family to remain intact. Schnopps cried during the conversation, and begged his wife to let the children live with him and to keep their family together. His wife replied, “No, I am going to court, you are going to give me all the furniture, you are going to have to get the Hell out of here, you won’t have nothing.” Then, pointing to her crotch, she said, “You will never touch this again, because I have got something bigger and better for it.”

On hearing those words, Schnopps claims that his mind went blank, and that he went “berserk.” He went to a cabinet and got out a pistol he had bought and loaded the day before, and he shot his wife and himself. When he “started coming to” as a result of the pain of his self-inflicted wound, he called his neighbor to come over and asked him to summon help. The victim was pronounced dead at the scene, and the defendant was arrested and taken to the hospital for treatment of his wound.

The issue raised by Schnopps’ appeal is whether in these circumstances the judge was required to instruct the jury on voluntary manslaughter. Instructions on voluntary manslaughter must be given if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool. See Commonwealth v. Stokes, 374 Mass. 583,592 n.6 (1978); Commonwealth v. Coleman, 366 Mass. 705, 715-716 (1975). A verdict of voluntary manslaughter requires the trier of fact to conclude that there is a causal connection between the provocation, the heat of pas[*181] sion, and the killing. See Commonwealth v. Soaris, 275 Mass. 291, 299 (1931); R. Perkins, Criminal Law 69 (2d ed. 1969).

Schnopps argues that “[t]he existence of sufficient provocation is not foreclosed absolutely because a defendant learns of a fact from oral statements rather than from personal observation,” Commonwealth v. Bermudez, 370 Mass. 438, 440 (1976), and that a sudden admission of adultery is equivalent to a discovery of the act itself, and is sufficient evidence of provocation, id. at 441. See Whidden v. State, 64 Fla. 165, 167 (1912); Jackson v. State, 135 Ga. 684, 685 (1911); Haley v. State, 123 Miss. 87, 104 (1920); Soderman v. State, 97 Tex. Crim. 23, 28 (1923); Hannah v. Commonwealth, 153 Va. 863, 868-872 (1929); Bryan v. Commonwealth, 131 Va. 709, 718-719 (1921); State v. Flory, 40 Wyo. 184, 204 (1929); 2 C. Torcia, Wharton’s Criminal Law § 156, at 248-249 (14th ed. 1979). Schnopps asserts that his wife’s statements constituted a “peculiarly immediate and intense offense to a spouse’s sensitivities.” Commonwealth v. Bermudez, supra at 442. He concedes that the words at issue are indicative of past as well as present adultery. Schnopps claims, however, that his wife’s admission of adultery was made for the first time on the day of the killing, and hence the evidence of provocation was sufficient to trigger jury consideration of voluntary manslaughter as a possible verdict.

The Commonwealth quarrels with the defendant’s claim, asserting that the defendant knew of his wife’s infidelity for some months, and hence the killing did not follow immediately upon the provocation. Therefore, the Commonwealth concludes, a manslaughter instruction would have been improper. The flaw in the Commonwealth’s argument is that conflicting testimony and inferences from the evidence are to be resolved by the trier of fact, not the judge.

Withdrawal of the issue of voluntary manslaughter in this case denied the jury the opportunity to pass on the defendant’s credibility in the critical aspects of his testimony. The[*182] portion of Schnopps’ testimony concerning provocation created a factual dispute between Schnopps and the Commonwealth. It was for the jury, not the judge, to resolve the factual issues raised by Schnopps’ claim of provocation. See Baker v. People, 114 Colo. 50, 56-57 (1945); Whidden v. State, 64 Fla. 165, 167-168 (1912); Jackson v. State, 135 Ga. 684, 685 (1911); Maher v. People, 10 Mich. 212, 218, 221 (1862); Haley v. State, 123 Miss. 87, 104-105 (1920); State v. Grugin, 147 Mo. 39, 50 (1898); Soderman v. State, 97 Tex. Crim. 23, 28 (1923); Bryan v. Commonwealth, 131 Va. 709, 718-719 (1921). “The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon. . . . However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true.” Commonwealth v. Campbell, 352 Mass. 387, 398 (1967), quoting from People v. Carmen, 36 Cal. 2d 768, 773 (1951).

We do not question the propriety of the verdict returned by the jury. However, based on the defendant’s testimony, voluntary manslaughter was a possible verdict. Therefore, it was error to withhold “from the consideration of the jury another verdict which, although they might not have reached it, was nevertheless open to them upon the evidence.” Commonwealth v. McCauley, 355 Mass. 554, 562 (1969).

For the reasons stated, the judgment of the Superior Court is reversed, the verdict of murder in the first degree is set aside, and the case remanded for a new trial. The appeal from the judgment on the firearms conviction is dismissed.

So ordered.

1

Schnopps was also convicted of unlawfully carrying a firearm and sentenced to a one-year term of imprisonment to be served concurrently with his life sentence. On appeal, Schnopps has not argued or briefed any error concerning the conviction on the firearms charge. We deem Schnopps’s failure to brief any issue concerning this conviction as a waiver. “An ‘appellate court need not pass upon questions or issues not argued in the brief.’” Commonwealth v. Cundriff, 382 Mass. 137, 150 n.22 (1980), quoting from Mass. R.A.P. 16 (a) (4), as amended, 367 Mass. 919 (1975). See Commonwealth v. Redding, 382 Mass. 154, 156 n.4 (1980).