Proposed Jury Instruction for Malice  

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).

MALICE

__________ INSTRUCTION NO. _____

    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.

COMMENT

MALICE

1.     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). Malice may be either express or implied or inferred. See also State v. Sanders, 108 W.Va. 148, 150 S.E. 519 (1929); State v. Roush, 95 W.Va. 132, 120 S.E. 304 (1923).
2.     State v. Young, 50 W.Va. 96, 40 S.E. 334 (1901). Malice is not confined to ill-will toward any one person but may be directed generally. Malice is that "malevolence which comes from a depraved heart, regardless of social duty and fatally bent on mischief". State v. Young, Supra. page 98 quoting State v. Douglas, 28 W.Va. 297, 300 (1886).
3.     State v. Starkey, 161 W.Va. 517, 523-524, 244 S.E. 2d 219, 223-224 (1978) citing State v. Douglas, Supra. 299, "...malice is not only confined to a particular ill will to the deceased, but is intended to denote...an action flowing from a wicked and corrupt motive..." 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); Waller v. Comm., 134 Va. 773, 114 S.E. 786 (1922).