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

Criminal Law- Elkins- Fall 2009
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)
· 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 sufficient to show the intent required of murder.”- Elkins
· to kill can be inferred from the Δ’s use of a deadly weapon
· Permissible Inference- There is a permissible inference of fact that a person intends that which he or she does or which is the immediate and necessary consequence of his or her act.
· Intent needed for 1st & 2nd degree murder, and voluntary manslaughter.
· Intent/Malice Aforethought: originally meant careful planning and extended thought about a killing—this conception of “malice aforethought” is no longer prevalent
· Element in First and Second Degree Murder
· Indicates a state of mind. Indicates that the ∆ acted with the cruel and deliberate disregard of social duties. ∆ acted with a corrupt spirit to indicate revenge, ill-will, hatred, or wickedness. A depraved heart.
· Express or Implied
o Express- “unlawful intent to take any life”
o Implied- when circumstances show an “abandoned and malignant heart.”
· Can infer the existence of malice, when the ∆ has intentionally used a deadly weapon to kill his victim.
· Factors to consider when showing malice: 1) mitigating circumstances; 2) justification; 3) evidence that the ∆ did not intend to kill; 4) Or any other evidence that raises a doubt about the presence of malice.

· 4 Mental States of Malice:
1) intention to kill a human being
2) the intention to inflict grievous bodily injury on another
3) an extreme and reckless disregard for the value of human life
4) the intention to commit a felony during the commission or attempted commission of which a death results.
· The jury may be instructed that in its required finding of proof of malice that it may draw permissible inferences from the facts and circumstances of the case.
i. Permissible Inference- Jury may infer that the ∆ intends to do what he does, and that he intends that which is the immediate and necessary consequences of his acts.

The Determination of Death
· Used to be the traditional “vital signs”—breathing and a heartbeat (Barber v. Superior Court).
· Now it is determined that death has occurred when the entire brain’s function has irreversibly ceased.
· Δ’s not relieved of criminal liability for homicide when the victim can still breathe and heart still beats IF the brain has irreversibly ceased to function. EX: People v. EULO



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

First Degree Murder
1. Willful
2. Deliberate,
3. Premeditated,
4. Intent
5. Malice [word sometimes used as a substitute for ‘specific intent’].
6. 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.”
· Premeditation- ∆ intended to kill and made a conscious decision to do so. The law does not fix an exact period of time that must pass between the formation of the intent to kill and the acts that result in the killing. Must be long enough to allow reflection and conscious choice by the ∆.
· Deliberation- If the person reflects on the act of killing, for whatever length of time, it is sufficient to constitute deliberation.
· WV- Penalty: Confinement in the penitentiary for life
· State v. Schrader- Δ stabbed victim 51 times with hunting knife. Jury instructions equated premeditation and deliberation with intention.
· State v. Guthrie overturns Schrader b/c premeditated and deliberation should not be equated with intention. Time to deliberate and premeditate varies with each person. Must be enough time for the accused to be fully conscious of what he intended.
o Jury verdict should be set aside only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt (Guthrie).
· WV Code- Refusal or failure to supply necessities, or by delivery, administration or ingestion of a controlled substance result in death of a child—guilty of first degree murder.
· WV Statute of enumerated first degree murders: 1) murder by poison, lying in wait, imprisonment, starving; 2) by any willful, deliberate and premeditated killing; 3) in the commission of or attempt to commit, arson, rape, robbery, or burglary.
Premeditation & Deliberation
Circumstances to be considered whether a killing was with premeditation and deliberation:
1) Want of provocation on the part of the deceased
2) The conduct and statements of the defendant before and after the killing
3) Threats and declarations of the defendant before and during the course of

ered though). Pitbulls are considered a dangerous breed unless proved otherwise.
*Berry moved for dismissalàinsufficient evidence of malice.
*I would find Berry guilty of 2nd degree murder. It was not a willfull murder with premeditation and deliberation; however, there was implied malice because when a person “does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. Phrased in a different wayàMalice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.

Voluntary Manslaughter- The intentional killing of another without malice
· Elements: Intentional, unlawful, and felonious killing.

WV Proposed Jury Instructions: “the felonious, unlawful & intentional taking of another person’s life but without premeditation, deliberation or malice.”

Provocation: involves a set of circumstances in which the Ds actions were not deliberate & premeditated.
– Provocation is essentially a recognition by the law that in some circumstances, a defendant should be less culpable “when the victim has played a significant part in arousing the defendant’s emotions & passions, arousing them in a way that would make it difficult for a reasonable person to exercise ordinary deliberations & decision-making.” – Prof. Elkins
*Provocation would be such that it would cause a reasonable person to lose control of himself and act out of the heat of passion
Rules of Provocation
1. Must have been adequate provocation
– Words alone are not adequate provocation Ex: Girouard v. State
2. The killing must have been in the heat of passionàCause to act from passion rather than reason
– Would a reasonably person act this way?
3. It must have been a sudden heat of passion—that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool. [not sufficient time to cool down/no cooling off period] 4. There must have been a causal connection between the provocation, the passion, and the fatal act.

· Defense must prove provocation and heat of passion
o Provocation not a defense to murder, but is evidence of the absence of malice.
o Words + conduct indicating a present intention and ability to cause the Δ bodily harm= can constitute adequate provocation
o Defense is unavailable to a ∆ who kills victim after he has a “reasonable opportunity for the passion to cool.”