West Virginia Homicide Jury Instructions Project
Professor James R. Elkins & Students at the West Virginia
University College of Law [Spring]
Standard Jury Instruction: The Court instructs the jury that although voluntary intoxication or drunkenness will never provide a legal excuse for the commission of a crime, the fact that a person may have been (grossly) intoxicated at the time of the commission of a crime, may negate the existence of the intent of [_________________], which is an element of the offense of [_________________________]. The evidence that the defendant acted [or failed to act] while in a state of gross intoxication may be considered in determining whether or not the defendant acted [or failed to act] with the intent of [__________________].
If the evidence in this case leaves you with a reasonable doubt that the accused was capable of forming this specific intent to commit the crime charged because of gross intoxication, then you should acquit the Defendant of the offense of __________________________________ and deliberate on the lesser included offense of ________________________________.
In determining whether or not the defendant was grossly intoxicated you may consider:
The use of [alcohol][drugs][intoxicants] does not excuse the commission of a criminal act if the use of [alcohol][drugs][intoxicants] merely:
1. The first sentence of the instruction is to convey to the jury the underlying theme and purpose of voluntary intoxication as a partial defense. Intoxication, as the Court repeatedly notes, cannot be used to fully excuse a crime. See e.g., State v. Vance, 285 S.E.2d 437 (W. Va. 1981); State v. Bailey, 220 S.E.2d 432 (W. Va. 1975).
2. The type of crimes (and mental states), in which a defendant may raise voluntary intoxication as a partial defense has not been fully determined. Obviously, a defendant charged with murder can use the defense. State v. Keeton, 272 S.E.2d 817 (W. Va. 1980). We have burglary and forgery cases in which the defense was used. See State v. Phillips, 93 S.E. 828 (W. Va. 1917) (burglary); State v. Fugate, 138 S.E. 318 (W. Va. 1927) (forgery). However, we do not here express an opinion as to whether voluntary intoxication can be used as a partial defense in all specific intent crimes. The Court has, in various cases, used restrictive language. E.g., in State v. Keeton, the Court noted that “as a general rule, we have held that the level of intoxication must be ‘such as to render the accused incapable of forming an intent to kill, or of acting with malice, premeditation or deliberation.’” State v. Keeton, 272 S.E.2d 817, 820-821 (W. Va. 1980) (citing State v. Davis, 43 S.E. 99 (W. Va. 1902) (emphasis added)). From this “general rule,” stated over 100 years ago and cited in 1980 without further elaboration, a defendant can argue that his voluntary intoxication prevented his being able to premeditate and deliberate, he may further argue that he was so intoxicated that he did not act with malice, or form an intent to kill and be found guilty of only involuntary manslaughter. This was the result in State v. Brant, 252 S.E.2d 901 (W. Va. 1979); the Court comforts itself by stating that Brant “consisted of a peculiar set of facts that will probably never be repeated; therefore, the opinion is of little general precedential value.” Keeton, 272 S.E.2d at 821. It is unclear how the Court, in Brant, was trying to limit the use of voluntary intoxication as a defense. The Court quoted a syllabus point that explicitly says a defendant can negate all of the elements of murder, i.e. intent to kill, malice, premeditation, and deliberation, and then, goes on in the next paragraph say that a defendant cannot argue all of them at the same time. If the Court has it in mind to limit the use of voluntary intoxication to negate the specific elements of premeditation and deliberation only, thus allowing voluntary intoxication to be used only to mitigate first degree murder to second degree murder, it has not to date done so. And, to do so would require the Court to explain the rationale and logic of the restrictive use of voluntary intoxication.
3. The issues raised here, about the use of voluntary intoxication in homicide cases, extend to the use of diminished capacity in still other circumstances. It would, seemingly, be inequitable to allow evidence of diminished capacity due to voluntary intoxication in homicide cases, yet deny such evidence where an organic brain injury or other brain injury or disease is involved. This point was observed by Justice Miller in State v. Simmons, 309 S.E.2d 89, 98 n.18 (W. Va. 1983):
1. The level of intoxication required, "gross intoxication," is discussed in: State v. Keeton, 166 W.Va. 77, 83, 272 S.E. 2d 817, 820-821 (1980); State v. Brant, 162 W.Va. 762, 765-766, 252 S.E. 2d 901, 903-904 (1979); State v. Phillips, 80 W.Va. 748, 752-753, 93 S.E. 828 (1917); State v. Davis, 52 W.Va. 224, 227-228, 43 S.E. 99 (1902); State v. Robinson, 20 W.Va. 713 (1882).
2. The West Virginia Supreme Court of Appeals noted in State v. Brant, 162 W.Va. 762, 766, 252 S.E.2d 901, 903 (1979) that:
Voluntary intoxication can be used to negate the elements of premeditation and deliberation in the crime of first degree murder. State v. Keeton, 272 S.E.2d 817 (W. Va. 1980).
4.The use of voluntary intoxication as an attempt to negate a specific intent element of a crime is not limited to homicide cases. But because voluntary intoxication is not a complete defense, it should only apply where there are lesser included offenses. State v. Brant, 252 S.E.2d 901, 903-04 (W. Va. 1979).
5. Other Relevant West Virgina cases include: State v. Bush, 191 W.Va. 8, 442 S.E.2d 437 (1994); State v. McCarty, 184 W.Va. 524, 401 S.E.2d 457 (1990); State v. Miller, 184 W.Va. 492, 401 S.E.2d 237 (1990); State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955); State v. Hertzog, 46 S.E. 792 (1904).