West Virginia Homicide Jury Instructions Project Professor James R. Elkins & Students at the West Virginia University College of Law [Spring][2006]

2nd Degree Murder

Standard Jury Instruction: Murder of the Second Degree is the unlawful, intentional killing of another person with malice but without deliberation or premeditation. [Unlawful Killing]

Proposed Jury Instruction: The defendant is charged with second degree murder. To prove the defendant guilty of this crime, the State must prove that:

1) the defendant committed an act that caused the death of another human being,

2) when the defendant acted to cause the death [he][she] did so with malice aforethought,

3) the defendant killed intentionally without excuse or justification that the law might avail [him][her],

4) the defendant did not premeditate or deliberate the killing,

5) the defendant did not act under a sudden quarrel or in the heat of passion caused by adequate provocation [expanded adequate provocation instruction]

Commentary & Relevant Cases

1. The West Virginia statutory provision on murder, §61-2-1, does not define 2nd degree murder except to say that any murder that is not 1st degree murder is 2nd degree murder. The elements of 2nd degree murder are not established by statute.

2. Basically, and most simply put, second degree murder is the unlawful intentional killing of another with malice. See State v. Bowles, 117 W.Va. 217; 185 S.E. 205 (1936).

3. The intent required to prove second degree murder can be shown by evidence from which the jury is ask to find, that is infer, intent based on the natural and probable consequences of the defendant’s actions. E.g., when the defendant shoots and kills [his] [her] victim with a gun, a juror may infer from the use of a deadly weapon that the defendant intended to kill the victim. A natural and probable consequence is one that a reasonable person would know is likely to follow from the acts in question. See State v. Morrison, 49 W.Va. 210; 38 S.E. 481 (1901); State v. Mullins, 193 W. Va. 315; 456 S.E. 2d 42 (1995). [See Revised Jury Instruction: Permissible Inferences]

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