Proposed Jury Instruction for Felony Murder


NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).

FELONY MURDER

__________ INSTRUCTION NO. _____

    Under the law of the State of West Virginia, the crime of murder in the first degree is committed if the homicide occurs accidentally or otherwise during the commission of or the attempt to commit one of the enumerated felonies hereinafter set forth or where the homicide or death of a victim occurs accidentally or otherwise as a result of injuries received in the commission or the attempt to commit arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody, manufacturing or delivering of a controlled substance, where the defendant participated in such commission or attempt to commit one or more of these enumerated felonies.
    This concept, known as the felony-murder doctrine, applies where the commission of the enumerated felony or the attempt to commit the enumerated felony and the homicide or death of the victim were part of one continuous transaction, and were closely related in point of time, place and causal connection.
    Under the felony-murder doctrine, the State of West Virginia is not required to prove the elements of wilfulness, malice, premeditation, deliberation or that the Defendant had a specific intent to kill the victim. Rather, the State of West Virginia must prove beyond a reasonable doubt all of the elements of the enumerated felony committed or attempted, the defendant's participation therein, and the death of the victim resulting therefrom.

COMMENT

FELONY MURDER


1.     State v. Mayle, 178 W.Va. 26, 31-32, 357 S.E. 2d 219, 224-225 (1987); State v. Williams, 172 W.Va. 295, 311, 305 S.E. 2d 251, 267 (1983). Under the felony- murder doctrine, the State is required to prove (1) the commission of or attempt to commit one or more of the enumerated felonies; (2) the defendant's participation in such commission or attempt; (3) the death of the victim as a result of injuries received during the course of such commission or attempt.
2.     State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982), Syllabus Point 2 citing State v. Sims, 162 W.Va. 212, 248 S.E. 2d 834 (1978); State v. Grimmer, 162 W.Va. 588, 251 S.E. 2d 780 (1979); Haskell v. Comm., 218 Va. 1033, 1041, 243 S.E. 2d 477, 482 (1978).
3.     State v. Stacey, 181 W.Va. 736, 739-741, 384 S.E. 2d 347, 352-353 (1989). The jury must be fully instructed as to all of the elements of the underlying felony in any felony-murder prosecution.