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Criminal Law
West Virginia University School of Law
Elkins, James R.

Elkins Crim Law
Fall 2010
 Elements of Homicide
– The Killing of a Human Being by Another Human Being with,: Intent or Malice Aforethough
·         Intent/Malice Aforethought: originally meant careful planning & extended thought about a killing—this conception of “malice aforethought” is no longer prevalent—
o   Intent: does not require that planning for the killing be carefully planned & thought out.
§  Simply a “desire to cause grievous bodily harm” could qualify as “intent” in a homicide case.
§  “Intent to do enough bodily harm will be read as being sufficient to show the intent required of murder.” – Prof. Elkins.
o   Malice:
§  can be “express” or “implied.”
§  It is “express” when there is an “unlawful intent to take any life.”
§  It is “implied” when the circumstances show an “abandoned & malignant heart.”  
o   Death: There is some dispute about when death occurs—
§  Brain Death: brain is not functioning, but heart & lungs are still functioning through artificial life support; some jurisdictions have concluded that brain death = death (See People v. Eulo).
§  Heart & Lungs Stop Functioning: In some jurisdictions (the old definition of death), death does not occur until the heart & lungs stop functioning, even if the brain is dead—which means that someone’s brain could be dead & the person could be kept “alive” with life-support (See Barber v. Superior Court).
1st Degree Murder
Willful, Deliberate, Premeditated, Intentional, & malicious [word sometimes used as a substitute for ‘specific intent’], killing of another.
2nd Degree Murder
Unlawful intentional killing of another person with malice but without premeditation & deliberation
Depraved Heart Murder
Unintentional homicide takes place in circumstances in which the defendant was so “extremely reckless” that his conduct presented what Dressler calls a “homicidal risk. – reckless & implied malice
Voluntary Manslaughter
the felonious, unlawful & intentional taking of another person's life but without premeditation, deliberation, or malice
Involuntary Manslaughter
Negligent Homicide
Accidental, unintended causing of death, which is the proximate result of negligence so gross, wanton & culpable as to show a reckless disregard for human life
Elements of a Crime:
1.      Actus reus: Physical element
2.      Mens Rea: Mental element/Mental state
Proving Mental State:
1.      Examination by Professionals
2.      Circumstantial evidence (inferences)
3.      State may declare that certain things create presumption of mental state (Use of deadly weapon presumes intent to kill)
Standard of Review:
·   What reasoning did the Court use to reach its conclusion?
·         Did the Court’s reasoning explain how it reached its conclusions?
·         Was the Court’s reasoning grounded in legal doctrine?
·         Did the Court simply state a problem & reach a conclusion without making a determination as to how it reached its conclusion?
·         Does the Common-Law or Statute Address the Issue?
·         If not, then the Courts should establish a common-law ruling on the issue, UNLESS there is a public policy concern that would be violated if the Court addressed the issue.
·         NOTE: “The Year & a Day” Rule should be abolished by Courts in jurisdictions in which the issue has not been addressed by the legislature or the common-law (for basic jurisprudential & public policy reasons).
If there is no “willful, deliberate & premeditated” acts on the part of the defendant:
(1) “Depraved-heart murder:” where an unintentional homicide takes place in circumstances in which the defendant was so “extremely reckless” that his conduct presented what Dressler calls a “homicidal risk.”
(2) Felony-murder: If you are in the act of committing a felony (certain prescribed felonies), or act in partnership with someone else who is, then any killing which takes place during the course of the felony, whether by your hand or that of your partner, will be sufficient to constitute malice aforethought.
·         Reasonably Prudent Person –
·   Ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.
1st Degree Murder
·         Willful,
·         Deliberate,
·         Premeditated,
·         Intent
·         Malice [word sometimes used as a substitute for ‘specific intent’].
·         Killing of Another.
·         WV Proposed Jury Instructions – 1st Degree Murder
·   “Murder of the First Degree is the willful, deliberate, premeditated, intentional & malicious killing of another person.”
2nd Degree Murder
The unlawful, intentional & malicious killing of another WITHOUT premeditation or deliberation.
·      NOTE: Premeditation & Deliberation is the most common distinction between 1st & 2nd degree murder.
The West Virginia criminal code provides little help in trying to define 2nd degree murder, leaving it as a kind of murder catchall, anything that gets left out of 1st degree murder & is not manslaughter becomes 2nd degree murder.
W.Va. Code: “All other murder [that is, murder which is not of the 1st degree] is murder of the second degree.” [§61-2-1]  
Intent to do grievous bodily harm, but not to kill (2nd degree)
Unintentional Killings as 2nd Degree Murder)(Depraved Heart) (Berry)
·         An unlawful intentional killing of another person with malice but without premeditation & deliberation
·         Any killing that is not 1st degree murder or manslaughter
·         West Virginia
·         Requirement for unintentional killings to be 2nd Degree Murder
·         Extreme indifference to value of human life, & must be demonstrated by the probability that the conduct involved will cause death.
·         Awareness of the risks of the conduct or that the conduct is contrary to law.
Depraved Heart Murder / Unintentional Killing Charged as Murder
Elements of Depraved Heart Murder

edical care for a child (Williams). Most jurisdictions require gross negligence for a conviction of voluntary manslaughter. Look at a person’s duties to see if they fulfill them as a reasonable person would do.
·         Gross (Criminal) Negligence
·         Negligence that is wanton & culpable or blameworthy & is a reckless disregard for the consequences that can result in injury (bodily injury/human life). Generally inferred to determine how culpable D is.
·         Proximate Cause (Albertson, Amanda K, Lofthouse, Garcia, Oxendine, Valazquez, Kibbe)
·         Those acts which
1.       Substantially & materially contribute
2.       In a natural & continuous sequence
3.       Unbroken by an efficient, intervening cause
·         (Only way intervening act can relieve Ds liability is if act sole cause of death)
4.       Injury/Death D’s conduct caused is a foreseeable & a natural result of that conduct
5.       Harm that results from the acts need not be intended
6.       Harm may only be indirectly caused by the D
·         D’s conduct is the proximate cause is the conduct is a substantial factor in bringing about the harm  (Albertson)
·         “A proximate cause can be found in those cases where ‘natural & foreseeable consequence of [an act] is serious injury or death” (Amanda K)
·         Proximate Cause contains 2 elements
1.       Foreseeability
·         Often turns on this concept (Albertson)
·         reasonable probability actor is aware of risk & result or should be aware (Lofthouse)
2.       Substantial Factor
·         Example: Gang Shooting, leaving man drunk & stranded on unlit road.
WV Jury Instructions: The accidental causing of death of another person, proximate result of negligence so gross, wanton, & culpable, as to show a reckless disregard for human life.
Drunk Driving Cases (Negligent Homicide)
·         Most likely to be involuntary manslaughter under misdemeanor/manslaughter.
Vehicular Homicide
·         The killing of a human being by the operation of a motor vehicle in a reckless manner likely to cause the death of, or great bodily harm to, another.
·         Reckless operation of vehicle must be proximate cause of death
·         WV Jury Instructions: Negligent Homicide is committed when any person, while driving a vehicle, unintentionally kills another person as a proximate result of his/her negligence, so gross, wanton, & culpable, as to show a reckless disregard of the safety of others & which death occurs within one year of the accident.
·         Court said that proximate cause exists if death was a foreseeable consequence