Proposed Jury
Instructions for Intent
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).
CLIFFORD INSTRUCTION
"SPECIFIC INTENT TO KILL"
__________ INSTRUCTION NO. _____
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.
COMMENT
CLIFFORD INSTRUCTION
"SPECIFIC INTENT TO KILL"
1. State v. Hatfield, 169 W.Va. 191, 200, 286
S.E. 2d 402, 408 (1982). Citing State v. Clifford, 59 W.Va. 1, 16 52
S.E. 981, 987 (1906). This "Clifford Instruction" is sanctioned as
a correct statement of the law.
DOCTRINE OF TRANSFERRED INTENT
__________ INSTRUCTION NO. _____
The Court instructs the jury that where the State of
West Virginia introduces evidence that shows beyond a reasonable doubt that
the defendant intended to kill or injure someone under circumstances which you
do not believe afforded the defendant excuse, justification or provocation for
his or her conduct, but in the course of attempting to commit that crime, accidentally
injures or kills another person, the jury may find that the defendant's criminal
intent will be transferred to the injured or killed unintentional victim.
COMMENT
DOCTRINE OF TRANSFERRED INTENT
1. State v. Julius, 185 W.Va. 422, 431-432,
408 S.E. 2d 1, 10-11 (1991) citing State v. Meadows, 18 W.Va. 658 (1881)
Syllabus Point 8; State v. Daniel, 182 W.Va. 643, 391 S.E. 2d 90 (1990);
State v. Hall, 174 W.Va. 599, 328 S.E. 2d 206 (1985); State v. Currey,
133 W.Va. 676, 57 S.E. 2d 718 (1950).
INFERRED MALICE AND INTENT
__________ INSTRUCTION NO. _____
Malice and intent to kill can be inferred by the jury
from the Defendant's use of a deadly weapon, under circumstances which you do
not believe afforded the Defendant excuse, justification or provocation for
his or her conduct.
COMMENT
INFERRED MALICE AND INTENT
1. State v. Jenkins, 443 S.E. 2d 244 (W.Va.
1994). This instruction meets the test of State v. Jenkins, Supra.
However, adding "premeditation" and "deliberation" to "malice
and intent" in the opening line may not be acceptable.
2. State v. Miller, 476 S.E. 2d 535, 555-557
(W.Va. 1966) Justice Cleckley further clarifies his holding in State v. Jenkins
that this "inference of malice" instruction is sound when limited
to inferring malice and intent to kill from the use of a deadly weapon in the
absence of excuse, justification or provocation. State v. Miller, Supra.,
p. 555, citing State v. Starkey, 161 W.Va. 517, 244 S.E. 2d 219 (1978),
citing note 9.
3. However, Justice Cleckley again reiterates in State
v. Miller that the use of such an instruction to infer "premeditation
and deliberation" from the use of a deadly weapon is not permitted.
INFERRED INTENT TO COMMIT LARCENY
__________ INSTRUCTION NO. _____
The Court instructs the jury that intent to commit a
larceny therein is an essential element of the crime of (breaking and entering)
(burglary) (entering without breaking) which may be inferred by the jury from
the facts and circumstances of the case.
COMMENT
INFERRED INTENT TO COMMIT LARCENY
1. State v. Ocheltree, 170 W.Va. 68, 289 S.E.
2d 742 (1982), Syllabus No. 3.
INFERRED MALICE AND INTENT TO MAIM,
DISFIGURE, DISABLE OR KILL
__________ INSTRUCTION NO. _____
The Court instructs the jury that there is a permissible
inference of fact that a person intends that which he or she does or which is
the immediate and necessary consequence of his or her act.
The Court further instructs the jury that malice and
intent (to maim, disfigure, disable or kill) may be inferred by the jury from
the defendant's use of a deadly weapon under circumstances which you do not
believe afforded the defendant excuse, justification or provocation for his
conduct.
COMMENT
INFERRED MALICE AND INTENT TO MAIM,
DISFIGURE, DISABLE OR KILL
1. State v. Evans, 172 W.Va. 810, 813, 310
S.E. 2d 877, 880 (1983). Paragraph one of this instruction was sanctioned in
this case citing syllabus point 3 of State v. Greenlief, 168 W.Va. 561,
285 S.E. 2d 391 (1981).
2. State v. Starkey, 161 W.Va. 517, 528, 244
S.E. 2d 219, 226 (1978). The second paragraph of this instruction is approved
(see footnote 9) by the Court as to "Malice and intent", but without
specific reference to the specific intent to maim, intent to disfigure or intent
to disable. However clearly the "intent" addressed in this instruction
was "intent to kill", and it only follows that such an instruction
is permissible in a malicious assault case where the additional elements of
"intent to maim, disfigure or disable are at play.
3. State v. Jenkins, 443 S.E. 2d 244 (W.Va.
1994). This instruction meets the test of State v. Starkey, Supra.
INFERRED INTENT TO COMMIT LARCENY
__________ INSTRUCTION NO. _____
The Court instructs the jury that intent to commit a
larceny therein is an essential element of the crime of (breaking and entering)
(burglary) (entering without breaking) which may be inferred by the jury from
the facts and circumstances of the case.
COMMENT
INFERRED INTENT TO COMMIT LARCENY
1. State v. Ocheltree, 170 W.Va. 68, 289 S.E.
2d 742 (1982), Syllabus No. 3.