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




Intent to Kill

Standard Jury Instruction ("Specific Intent to Kill"): The Court instructs the jury that to constitute a willful, deliberate and premeditated killing which is Murder Of The First Degree, it is not necessary that an intention to kill exist for any particular length of time prior to the actual killing; it is only necessary that said intention should come into existence for the first time at the time of such killing or any time previous thereto.

Proposed Jury Instruction: The defendant has been charged with murder [voluntary manslaughter], which requires the state to prove the defendant acted intentionally. You should not convict on this charge unless you find the Defendant possessed the intent to kill.

A defendant may announce and proclaim his intentions, and he may not. More often, the defendant's intentions will not be publicly announced or shared with others. Therefore, intention is largely a matter of inference. You may infer that the defendant intends to do what [he] [she] does, and that [he] [she] intends that which is the immediate and necessary consequences of [his] [her] acts.

[Intent to kill can be inferred from a person’s use of a deadly weapon, under circumstances where you believe that person had no excuse, justification or provocation for his or her conduct.]

It is not possible to look into the closed quarters of another person's mind. In asking you to determine whether the defendant acted with intent, you are asked to determine the defendant's intention by evaluating [his] [her] conduct [including any statements made by the defendant], and the circumstances surrounding the conduct which resulted in the killing.

Any interval of time between the forming of an intent to kill and the execution of that intent, which you find to be of sufficient duration for a person to be conscious of what he intended, is sufficient to support a finding that the defendant acted with intent.


1. Devising a jury instruction on intent in homicide cases is made difficult by the failure of the West Virginia Supreme Court of Appeals to fully discuss the intent requirement. The Court, all too often, commingles its discussion of intent to kill with other mens rea elements--premeditation, deliberation, malice. In State v. Jenkins, 191 W. Va. 87, 92 (1994) the Court notes that "the concept of malice is often used as a substitute for ‘specific intent to kill or an intentional killing." (citing State v. Hatfield, 169 W. Va. 191, 198 (1982). The interchangeable use of terms makes it difficult to determine whether "intent to kill" has any weight and bearing beyond the required premeditation, deliberation, and malice.

The court has observed that "the type of criminal intent required to be proved depends on the degree of murder." State v. Starkey, 161 W. Va. 517, 523 (1978). But the Court has generally failed to provide explanations of "intent" as a stand-alone element of homicide.

2. Interestingly enough, we have observed that the West Virginia cases decided in the period, 1900-1930, generally contain more detailed analysis and logic in the opinions than more recent cases, which cite to syllabus points do. It appears that common law judges of an earlier era took great pride in writing opinions that more fully analyzed the legal and doctrinal issues presented to the court.

3. The need for a substantial revision of the present "specific intent to kill" jury instruction [Specific Intent to Kill] seems obvious. We have serious questions as to whether the present jury instruction passes muster under State v. Guthrie, 194 W.Va. 657, 461 S.E.3d (Sup.Ct. App. W.Va., 1995) [on-line text] [Justice Workman concurring] as it reworks State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (Sup.Ct.App. W.Va., 1982) [text of the opinion].

4. Elements of the revised proposed instruction are drawn from Connecticut Selected Jury Instructions Criminal, § 2.47. Although Connecticut has adopted the Model Penal Code, we have located sufficient cases and case language in West Virginia to justify the reliance upon the Connecticut instruction did. E.g., in State v. Gravely, 66 W. Va. 375, 382 (1909), the Court noted the inability of anyone to look into the mind of another and see intention inscribed within that mind. In State v. Evans, 172 W. Va. 810, 813 (1983) the Court notes that a person’s intention can be determined by examining that person’s conduct and the circumstances surrounding the conduct of the person. Additionally, in Evans, the Court (citing State v. Greenlief, 168 W. Va. 561 (1981)) states: “There is a permissible inference that a person intends that which he does, or that which is the immediate and necessary consequences of his act.” These three West Virginia cases, viewed together with the Connecticut jury instruction, are reflected in the revised jury instruction.

5. We have not presented a specific jury instruction on "transferred intent" to cover those situations where the defendant intends to kill but mistakenly kills a person other than the intended victim. Present jury instructions include an instruction on "transferred intent." [Doctrine of Transferred Intent]. After review of the "transferred intent" and a review of Joshua Dressler’s Understanding Criminal Law, we find no need for a specific instruction on "transferred intent." Dressler argues that "transferred intent" is an unneeded legal fiction. If the defendant intends to kill a human being and ultimately does kill a human being, then intent to kill is present. The intent required in homicide is a general intention to kill a human being, and when the ultimate outcome is the intended one; the defendant is being punished only for the crime which he intended.

Cases Consulted: Harper v. Jefferson Standard, 119 W. Va. 721 (1938); State v. Ashcraft, 309 S.E.2d 600 (1983); State v. Boggess, 204 W. Va. 267 (1998); State v. Clifford, 52 S.E. 981 (1906); State v. Davis, 519 S.E.2d 852 (1999); State v. Evans, 310 S.E.2d 877 (1983); State v. Gravely, 66 W. Va. 375 (1978); State v. Greenlief, 285 S.E.2d 391 (1981); State v. Guthrie, 461 S.E.2d 163 (1995); State v. Hatfield, 286 S.E.2d 402 (1982); State v. Hedrick, 99 W. Va. 529 (1925); State v. Jenkins, 443 S.E.2d 244 (1994); State v. Liller, 536 S.E.2d 120 (2000); State v. McGuire, 490 S.E.2d 912 (1997); State v. Miller, 476 S.E.2d 535 (1996); State v. Miller, 513 S.E.2d 147 (1998); State v. S. Haines, 2005 WL 3092045; State v. Scott, 522 S.E.2d 626 (1999); State v. Starkey, 244 S.E.2d 219 (1978); State v. Wright, 249 S.E.2d 519 (1978).