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





Standard Jury Instruction: The word malice, as used in these instructions, is used in a technical sense. It may be either express or implied and it includes not only anger, hatred and revenge, but other unjustifiable motives. It may be inferred or implied by you from all of the evidence in this case if you find such inference is reasonable from facts and circumstances in this case which have been proven to your satisfaction beyond all reasonable doubt. It may be inferred from any deliberate and cruel act done by the Defendant without any reasonable provocation or excuse, however sudden. 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, fatally bent upon mischief. It is not necessary that malice must have existed for any particular length of time and it may first come into existence at the time of the act or at any previous time.

Proposed Jury Instruction: Malice is an essential element of first degree murder [second degree murder]. Malice indicates a state of mind. It is a state of mind that indicates that the defendant acted with cruel and deliberate disregard of [his] [her] social duties and that he was fatally bent on wrongdoing. The defendant acted with malice if [he] [she] acted with any evil design in general, or with such a corrupt spirit as indicating revenge, ill-will, hatred or wickedness, that it reflects a person who acts without regard to social duty and does so without just cause.

To find the existence of malice, you may examine the evidence presented to you, including the evidence of circumstances in which the killing occurred, and determine whether the defendent's acts were of a nature and were committed under circumstances that allow you to infer that the defendant acted with malice.

You may find malice, or you may it infer the existence of malice, when the defendant has shown a deliberate intention to commit a wrongful act and has done so without a lawful cause, excuse, or defense.

[You may find malice, or you may infer the existence of malice, when the defendant has intentionally used a deadly weapon to kill [his] [her] victim.] [Deadly Weapon]

The prosecution is not required to show that the defendant's malice is of a kind that is expressed in an ill-will toward any particular person, or to any particular group of persons. A finding of malice does not require hatred or ill-will toward the deceased.

[If the defendant is able to provide evidence that [he] [she] acted only as a result of sudden passion or acted upon a reasonable provocation, then you may find that the defendant did not act with malice, and if you so find, then you must acquire the defendant of any crime which requires the proof of malice.] [Provocation]

In your consideration of the presence or absence of malice, you may consider whether the defendant has raised a reasonable doubt about the presence of malice by his [her] showing of:

1) mitigating circumstances,
2) justification,
3) evidence that the defendant did not intend to kill,
4) or any other evidence that raises a doubt about the presence of malice.

In the event that you are satisfied the defendant has placed a finding of malice in doubt, and the prosecution has not shown the existence of malice beyond a reasonable doubt, you must find the defendant not guilty of first degree murder [second degree murder] [first degree murder and second degree murder] and consider the lesser included offense of [voluntary manslaughter] [involuntary manslaughter].


1. “Malice” is, as the current "Proposed" jury instruction notes, a term used in it's "technical sense"; that is to say, it is a legal term of art. With regard to homicide, the term has developed to include four mental states: (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; or (4) the intention to commit a felony during the commission or attempted commission of which a death results.

2. Early court decisions attempted to give “malice” a purported objective meaning. Those attempts at definitions have varied so widely that some courts have attempted to simply equate malice with intent to kill.

3. In West Virginia, malice is an essential element in both 1st and 2nd degree murder and is the pivotal component in distinguishing murder from manslaughter.

4. The use of the term malice in jury instructions has been examined in a number of West Virginia cases. According to the West Virginia Supreme Court, a jury instruction defining the term “malice” is erroneous if it has a reasonable potential to mislead the jury as to the correct legal principle, or does not adequately inform the jury on the law. State v. Miller, 197 W.Va. 558, 607, 476 S.E.2d 535, 554 (1996).

5. Malice is a form of criminal intent and if lacking, the killing is not murder. State v. Galford, 87 W.Va. 358; 105 S.E. 237 (1920); State v. Hatfield, 169 W. Va. 191; 286 S.E.2d 402 (1982).

6. In 1st and 2nd degree murder cases, 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. [Permissible Inferences]

Malice may be inferred or implied. State ex rel. Combes v. Bowles, 151 W.Va. 194, 151 S.E. 2d; State v. Lewis, 133 W.Va. 584, 57 S.E. 2d 513 (1949); State v. Sanders, 108 W.Va. 148, 150 S.E. 519 (1929); State v. Roush, 95 W.Va. 132, 120 S.E. 304 (1923).

An inference of malice instruction is not required but is entirely a discretionary decision of trial court. Once the trial judge decides to give inference of malice instruction, the judge must give instruction that is complete and fair to both sides and any inference that jury draws should result from reasoning process of jury and not merely from trial court calling permissive inference to jury's attention. State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

The inferred malice instruction was discussed extensively in State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996). The instruction in that case stated:

The Court instructs the jury that in a prosecution for murder, if the State proves beyond a reasonable doubt that the defendant, without lawful justification, excuse or provocation, fired a deadly weapon in the direction where a person was located then from such circumstances it may be inferred that the defendant acted with malice and the intent to kill. State v. Miller, 197 W.Va. at 606, 476 S.E.2d at 553.

7. Malice can include not only anger, hatred, and revenge, but other corrupt motives. State v. Matney, 176 W. Va. 667, 346 S.E. 2d 818 (1986).

8. Malice is not limited to the defendant's ill-will toward any one person. Malice is that "malevolence which comes from a depraved heart, regardless of social duty and fatally bent on mischief." State v. Young, 50 W.Va. 96, 98 40 S.E. 334 (1901).

9. What is meant by "evil design in general" is that the defendant acted under such circumstances as are ordinary signs of a wicked, depraved and malignant spirit and carry with them the plain indication that show a flagrant disregard for one’s social duty to his fellow man and to the law.

10. A defendant can show the absence of malice by producing evidence that he acted in a sudden passion aroused by an unanticipated and unprovoked battery inflicted by the deceased without the fault of the defendant. State v. Morris, 142 W. Va. 303; 95 S.E. 2d 401 (1956).

11. A justifiable motive, which rebuts evidence of malice, or an inference of malice, can be found when the defendant has acted in self-defense, in defense of another, or where the act committed is shown not to be evil and cruel.

12. While there are West Virginia cases which indicate that it is not essential that malice should have existed for any length of time before the killing, these cases, in particular, State v. Brant, 162 W.Va. 762; 252 S.E. 2d 901 (1979) and State v. Mullins, 193 W. Va. 315; 456 S.E. 2d 42 (1995), need to be reconsidered in light of the Court's consideration of the time element in findings of premeditation and deliberation See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (Sup.Ct.App. W.Va., 1982) [text of the opinion], revisited, revised, and substantially reformulated in, State v. Guthrie, 194 W.Va. 657, 461 S.E.3d; 1995 W.Va. LEXIS 169 (Sup.Ct. App. W.Va., 1995) [on-line text] [Justice Workman concurring].

13. A jury instruction on inferring malice from the use of a deadly weapon, should not be given in cases where a disturbance is provoked by the deceased, and the defendant then made use of a deadly weapon to kill the deceased. See State v. Bowyer, 143 W.Va. 302; 101 S.E. 2d 243 (1957).

14. The Court has made clear that evidence for proving malice cannot be definitely prescribed because of the nature of malice as a state of mind. See generally, State v. Gunter, 123 W.Va. 569; 17 S.E. 2d 46 (1941).

15. Gross provocation and heat of passion are not essential elements of voluntary manslaughter, and, therefore, they need not be proven by evidence beyond a reasonable doubt. It is intent without malice, not heat of passion, which is the distinguishing feature of voluntary manslaughter. State v. McGuire, 200 W.Va. 823, 825, 490 S.E.2d 912, 914 (1997).

Relevant Cases: State v. Miller, 197 W.Va. 558, 607, 476 S.E.2d 535, 554 (1996), State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), State ex rel. Combs v. Bowles, 151 W. Va. 194, 151 S.E. 2d 115 (1966), State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994), State v. Starkey, 161 W.Va. 17, 244 S.E. 2d 219 (1978), State v. Lewis, 133 W. Va. 584, 57 S.E. 2d 513 (1949), State v. Hamrick, 163 S.E. 868, 112 W.Va. 157 (1932), State v. Burgess, 205 W.Va. 87, 516 S.E.2d 491 (1999), State v. Galford, 87 W.Va. 358, 105 S.E. 237 (1920) State ex rel. Combes v. Bowles, 151 W.Va. 194, 151 S.E. 2d; State v. Sanders, 108 W.Va. 148, 150 S.E. 519 (1929); State v. Roush, 95 W.Va. 132, 120 S.E. 304 (1923), State v. Douglas, 28 W.Va. 297, 300 (1886); State v. Young, 50 W.Va. 96, 40 S.E. 334 (1901), See also State v. Panetta, 85 W.Va. 212, 101 S.E. 360 (1919); State v. Wilson, 95 W.Va. 525, 121 S.E. 726 (1924); and Waller v. Comm., 134 Va. 773, 114 S.E. 786 (1922).