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




Depraved Heart Murder

Standard Jury Instruction: [none]

Proposed Jury Instruction: You may find the defendant guilty of second degree murder if you find from the evidence presented to you that the defendant:

1) while engaged in a grossly reckless act;

2) unintentionally;

3) caused the death of another;

4) and in causing the death did so with extreme indifference for the value of human life and the safety of others.


1. Currently in West Virginia, there is no statutory language in § 61-2-1, defining first and second degree murder, that outlines or proscribes “depraved heart murder.” Cursory research indicates no West Virginia Supreme Court cases dealing with depraved hert murder. The question most simply put is this: Given the broad language in W. Va. Code § 61-2-1, defining first and second degree murder, is depraved heart murder a plausible crime in West Virginia? .

While the intent to kill is an essential element of first and second degree murder, a defendant can be found guilty of second degree unintentional murder based on an inferred intent where the defendant has acted with grossly reckless disregard for human life and has done so with extreme indifference for life and safety of others.

2. The crucial distinction between involuntary manslaughter and second degree murder turns on the degree of indifference and the extremity of the risk of death which may be seen in, or deferred from the defendant's acts. To find the defendant acted grossly recklessness, and with the kind of extreme indifference to constitute second degree murder, the defendant’s acts must be something akin to an individual intentionally shooting a gun into a crowd of people, State v. Douglass, 28 W. Va. 297, 300 (1886), or one who thows a dangerous object, such as a large piece of wood, concrete, or metal, off a roof into a crowded street below. See State v. Saunders, 150 S.E. 519, 520 (W. Va. 1929). Other analogous examples would include driving a car at a high rate of speed, in inclement weather, while highly intoxicated. See Davis v. State, 593 So. 2d 145 (Ala. Crim. App. 1991). Still other examples would be playing Russian Roulette, by loading a gun and intentionally firing it at another person, People v. Roe, 542 N.E.2d 610 (N.Y. 1989).

3. For a case considering the application of the "depraved heart" (unintentional killing that constitutes murder) theory, see Berry v. Superior Court, 208 Cal. App. 3d 783 (Cal. Ct. App. 1989). In Berry, the defendant was charged with the murder of a child when his pit bull fatally bit the child while chained outside. While there was no evidence that the dog had attacked a human before, the court found substantial evidence that “Willy” was bred and trained to be a fighting dog and that the defendant knew that Willy posed a known threat to people. In denying the defendant’s motion to dismiss the charge of murder, the court stated that “[d]eath by agency of an ‘abandoned and malignant heart,’ more precisely defined . . . as a subjective appreciation of a high risk of death, is murder.” A death by “gross negligence alone is manslaughter.” Therefore, the court drew the line between manslaughter and murder by the degree of indifference displayed by the actor. The court heard evidence during the preliminary hearing and allowed the case to go forward under a murder theory. At trial, the jury found the defendant guilty of involuntary manslaughter. See People v. Berry, 1 Cal. App. 4th 778 (Cal. Ct. App. 1991).

4. Other jurisdictions that recognize depraved heart murder generally recognize three elements: 1) high probability that conduct will result in the death of a human being; 2) a subjective appreciation of the risk; and 3) a base anti-social purpose or motive.

For example, the Utah Supreme Court defines“abandoned and malignant heart” as “depraved indifference,” and “an utter callousness toward the value of human life and a complete and total indifference as to whether one’s conduct will create the requisite risk of death of another.” State v. Standiford, 769 P.2d 254 (Utah 1988). In Alabama, the court gave perhaps the best lay definition when it found that that a person is guilty of depraved indifference when that person is one “bent on mischief” who “acts with a ‘don’t give a damn attitude,’ in total disregard of the public safety.” King v. State, 505 So. 2d 403 (Ala. Cr. App. 1987) (emphasis added).

5. The Model Penal Code jurisdictions define depraved heart murder in terms of “recklessness.” However, this poses the question: “What is the difference between the defendant’s state of mind to convict him of murder by acting recklessly (depraved heart murder or second degree murder) and manslaughter by acting recklessly (Involuntary Manslaughter)?” Joshua Dressler, Cases and Materials on Criminal Law 272 (2d ed. 1999).

6. The West Virginia Supreme Court of Appeals does not mention extreme reckless disregard of human life in its decided cases. There is, however, use of the terms “depraved heart” and “malignant heart” language in West Virginia cases involving involving malice. Specifically, in State v. Bongalis, 378 S.E.2d 449 (W. Va. 1989), the Court stated:

Malice is not confined to ill-will toward any one or more particular persons, but malice is every evil design in general; and by it is meant that the fact has been attended by such circumstances as are ordinarily symptoms of a wicked, depraved and malignant spirit, and carry with them the plain indications of a heart, regardless of social duty, and fatally bent upon mischief.

In State v. Young, 40 S.E. 334 (W. Va. 1901), the Court states:

If a father with such a depraved heart should shoot into a crowd of persons and kill his own son, he would be guilty of murder, although he might love his son dearly and there is no unfriendly feeling between them.” Malice need not be directed against the deceased, but it is that malevolence which comes from a depraved heart “regardless of social duty and fatally bent on mischief.”

The Court in Young found the defendant had a “wicked, depraved and malignant heart, and regardless of the law and his duty to his fellow man . . . he recklessly fired his gun in the crowd, not caring who might suffer from it. A more wicked and malicious act could hardly be conceived." Id. at 334-35.

Young has not been overruled; it has been cited positively only in State v. Saunders, 150 S.E. 519 (W. Va. 1929). Based on a review of West Virginia cases, this malice language supports the proposition that “grossly reckless” behavior of sufficient magnitude may, in West Virginia, constitute depraved heart murder. The Court in Saunders went so far as to quote Michie on Homicide, to the effect that, “[w]here the act of killing shows an abandoned and malignant heart, the defendant is guilty of murder in the first degree.” Id. at 520. A syllabus point in Saunders reinforces this position. “If a person maliciously and without provocation fires a gun charged with a deadly load into a crowd regardless of consequences and kill an innocent bystander, he is guilty of murder, and it is for the jury to say from the facts and circumstances whether such killing was willful [sic], deliberate and premeditated.” Id. (citing State v. Young, 40 S.E. 334).

7. For a defendant to be prosecuted for second degree murder on the theory that he acted in such an extremely reckless fashion that he consciously disregarded the safety of others, and that the resulting death (or deaths) may have not been intended is to substantially alter the second degree murder instruction. [2nd Degree Jury Instruction]

8. The second element, “while engaged in a grossly reckless act,” is key in distinguishing murder from manslaughter. We assume that in "depraved heart" murder cases, the defendant will commonly request an involuntary manslaughter jury instruction. [Involuntary Manslaughter Jury Instruction]