Select Page

Criminal Law
West Virginia University School of Law
Elkins, David

§               Intro to Homicide
WVC 61-2-1
§         Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody, or a felony offense of manufacturing or delivering a controlled substance as defined in article four, chapter sixty-a of this code, is murder of the first degree. All other murder is murder of the second degree.In an indictment for murder and manslaughter, it shall not be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it shall be sufficient in every such indictment to charge that the defendant did feloniously, willfully, maliciously, deliberately and unlawfully slay, kill and murder the deceased.

§         It is not necessary to set forth the manner in which murder was caused for indictment, but to charge the defendant that did willfully, feloniously kill the deceased.

WVC 61-2-6

§         Homicide is punishable within state if the injury occurs within that state, and death out of state; or vice versa.

Eulo (NY 1984)
§         Issue: Def. shot victim in head, victim made it to hospital but was brain-dead and kept alive by a respirator. After taken off machines, victim’s lungs and heart stopped. Court ruled that criminal responsibility for homicide when a def.’s conduct causes injury leading to the victim’s total loss of brain functions is consistent with the legislature’s concept of death, and that the def.’s actions caused the victim’s death.

Barber (Cal. 1983)

§         Deceased underwent surgery and while in recovery room went into cardiac/resp. arrest. He was put on life support, doctors told family he had little chance to survive, so they decided to turn machines off and he died. 2 doctors were charged with murder and conspiracy to commit murder. 
§         Murder is “the unlawful killing of a human being…with malice aforethought.” Malice may be express or implied. It is express when there is an intent unlawfully to take any life. It is implied when the circumstances show an abandoned and malignant heart. “Unlawful” is used to distinguish a criminal homicide from those that may be justifiable. 
§         Issue: Did the doctors have a duty to continue to provide life sustaining treatment?
§         No criminal liability exists for failure to act unless there is a duty to act, and no duty exists after qualified medical pro.’s deem it futile. The wife made the decision and this was proper. 

§               1st Deg. Murder: Premeditation/Delibera

ects on the act of killing, for whatever length of time, it is sufficient deliberation.

§         Def. was found guilty of murder in 1st deg. and sentenced to life in prison.
§         Def. stabbed victim 51 times because he was known to carry a gun and was reaching in his pocket; but never produced a gun. Def. appeals that jury was instructed wrongly on premeditation; that the intent to kill must not exist for any set length of time prior to the killing. 
§         WV adopts that to constitute a “premeditated murder,” an intent to kill need exist only for an instant. 

WV Premeditate – The Court instructs the jury that to premeditate is to think of a matter before it is executed. Premeditation implies something more than deliberation, and may mean the party not only deliberated, but formed in his mind the plan of destruction.

WV Deliberation – The Court instructs the jury that to deliberate is to reflect, with a view to making a choice. If a person reflects even for a moment before he acts it is sufficient deliberation.

Midget (Ark. 1987)