Proposed Jury
Instructions for Unlawful Killing
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).
Murder of the
First Degree
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in this case is Murder
of the First Degree. One of two verdicts may be returned by you under this Count
of the Indictment. They are: (1) guilty; and (2) not guilty.
Murder of the First Degree is the willful, deliberate, premeditated,
intentional and malicious killing of another person.
The burden is on the State to prove the guilt of the Defendant beyond a
reasonable doubt and the Defendant, ______________________________ is not
required to prove himself innocent. He is presumed by the law to be innocent of
this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________ can be convicted of
Murder of the First Degree, the State of West Virginia must overcome the
presumption that the Defendant, ______________________________ is innocent and
prove to the satisfaction of the jury beyond a reasonable doubt that:
The Defendant, ______________________________,
in _______________ County, West Virginia,
on or about the _____ day of _______________, 2____,
did willfully, intentionally, deliberately and premeditatedly with
malice and intent,
kill ______________________________.
If after impartially considering, weighing and comparing all the evidence,
(both that of the State and that of the Defendant) the jury and each member of
the jury is convinced beyond a reasonable doubt of the truth of the charge as to
each of these elements of Murder of the First Degree, you may find
______________________________ guilty of Murder of the First Degree as charged
in Count _____ of the indictment. If the jury and each member of the jury has a
reasonable doubt of the truth of the charge as to any one or more of these
elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First Degree, the Court
must sentence him to confinement in the penitentiary for life, and he shall not
be eligible for parole unless you, in your discretion, further find and add to
your verdict, a recommendation for mercy.
Such a recommendation of mercy would mean that the Defendant could be
eligible for parole consideration after having served a minimum of _____ years,
but but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
W.Va. Code §61-2-1.
State v. Walker, 188 W.Va. 661, 425 S.E. 2d 616 (1992); State v.
Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Dietz;
182 W.Va. 544, 390 S.E. 2d 15 (1990); State v. Harper, 179 W.Va.
24, 365 S.E. 2d 69 (1987); State v. Hatfield, 169 W.Va. 191, 286
S.E. 2d 402 (1982). These cases discuss the elements of Murder Of The
First Degree.
State v. Bongalia, 180 W.Va. 584, 378 S.E. 2d 449 (1989); State
v. Evans, 172 W.Va. 810, 310 S.E. 2d 877 (1983); State v. Hatfield,
Supra.; State v. Kirtley, 162 W.Va. 249, 252 S.E. 2d 587
(1979); State v. Messinger, 163 W.Va. 447, 256 S.E. 2d 587 (1979); State
v. Sanders, 161 W.Va. 399, 242 S.E. 2d 554 (1978); State v. Bragg,
140 W.Va. 585, 87 S.E. 2d 689 (1955). The element of malice is discussed.
State v. Schroeder, 172 W.Va. 1, 302 S.E. 2d 70 (1982); State v.
Keeton, 166 W.Va. 77, 272 S.E. 2d 817 (1980); State v. Bragg, Supra.;
State v. Dodds, 54 W.Va. 289, 46 S.E. 228 (1903). The elements of
premeditation and deliberation are discussed.
State v. Hatfield, Supra.; State v. Young, 166 W.Va.
309, 273 S.E. 2d 592 (1980); State v. Keeton, Supra. The
intent to kill is discussed.
State v. Jenkins, 443 S.E. 2d 244 (W.Va. 1994)
MURDER OF THE FIRST DEGREE
(including lesser offenses)
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of five verdicts may be returned
by you under the Indictment. They are: (1) Guilty of Murder of the First Degree;
(2) Guilty of Murder of the Second Degree; (3) Guilty of Voluntary Manslaughter
and (4) Guilty of Involuntary Manslaughter and (5) Not Guilty.
Murder of the First Degree is the willful, deliberate,
premeditated, intentional and malicious killing of another person.
Murder of the Second Degree is the unlawful intentional
killing of another person with malice but without deliberation or premeditation.
Voluntary Manslaughter is the felonious, intentional
and unlawful taking of another person's life but without premeditation, deliberation
or malice.
Involuntary Manslaughter is the accidental causing of
death of another person, although unintended, which death is the proximate result
of negligence so gross, wanton and culpable as to show a reckless disregard
for human life.
The burden is on the State of West Virginia to prove
the guilt of the Defendant __________________________ beyond a reasonable doubt
and the Defendant is not required to prove himself innocent. He is presumed
by the law to be innocent of this charge and this presumption remains with him
throughout the entire trial.
Before the Defendant,______________________________
can be convicted of Murder of the First Degree, the State of West Virginia must
overcome the presumption that the Defendant, ______________________________
is innocent and prove to the satisfaction of the jury beyond a reasonable doubt
that:
1. The Defendant, _________________________
2. in __________________ County, West Virginia,
3. on or about the _____ day of _______________, 2____,
4. did willfully, intentionally, deliberately and premeditatedly
with malice and intent,
5. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count ______ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty of Murder of the First Degree (and
deliberate on the lesser included offense of Murder of the Second Degree as
hereinafter instructed).
If, however, you find the Defendant guilty of Murder
of the First Degree, the Court must sentence him to confinement in the penitentiary
for life, and he shall not be eligible for parole unless you, in your discretion,
further find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________could be
eligible for parole consideration after having served a minimum of _____ years,
but that mere eligibility for parole in no way guarantees immediate parole after
_____ years and that parole is given to inmates only after a thorough consideration
of their records by the parole board.
Before the Defendant ______________________________
can be convicted of Murder of the Second Degree, the State of West Virginia
must overcome the presumption that he is innocent and prove to the satisfaction
of the jury beyond a reasonable doubt that:
1. the Defendant, ______________________________
2. in _______________ County, West Virginia,
3. on or about the _____ day of ______________, 2____
4. did unlawfully, intentionally and maliciously but
without deliberation or
premeditation
5. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the Second Degree, you
may find ______________________________ guilty of Murder of the Second Degree
as charged. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Murder of
the Second Degree, you shall find the Defendant ______________________________
not guilty of Murder of the Second Degree (and deliberate on the lesser included
offense of Voluntary Manslaughter as hereinafter instructed).
Before the Defendant ______________________________
can be convicted of Voluntary Manslaughter, the State of West Virginia must
overcome the presumption that he is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. the Defendant, ______________________________
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2____
4. did feloniously, unlawfully and intentionally
5. without premeditation, deliberation or malice,
6. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Voluntary Manslaughter, you may
find the Defendant ______________________________ guilty of Voluntary Manslaughter
as charged. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Voluntary
Manslaughter, you shall find the Defendant ______________________________ not
guilty of Voluntary Manslaughter (and deliberate of the lesser included offense
of Involuntary Manslaughter as hereinafter instructed).
Before the Defendant ______________________________
can be convicted of Involuntary Manslaughter, the State of West Virginia must
overcome the presumption that he is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. the Defendant, ______________________________
2. in _______________ County, West Virginia,
3. on or about the _____ day of ______________, 2____,
4. did unintentionally,
5. cause the death of ______________________________
6. Which death was the proximate result of the negligence of the Defendant so
gross, wanton and culpable as to show a reckless disregard for human life.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Involuntary Manslaughter, you
may find ______________________________ guilty of Involuntary Manslaughter as
charged. If the jury and each member of the jury has a reasonable doubt of the
truth of the charge as to any one or more of these elements of Involuntary Manslaughter,
you shall find the Defendant ______________________________ not guilty.
COMMENT
MURDER OF THE FIRST DEGREE
(including lesser offenses)
1. W.Va. Code §61-2-1.
2. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990);
State v. Dietz; 182 W.Va. 544, 390 S.E. 2d 15 (1990); State v. Harper,
179 W.Va. 24, 365 S.E. 2d 69 (1987); State v. Hatfield, 169 W.Va. 191,
286 S.E. 2d 402 (1982). These cases discuss the elements of Murder Of The First
Degree.
3. State v. Bongalia, 180 W.Va. 584, 378 S.E.
2d 449 (1989); State v. Evans, 172 W.Va. 810, 310 S.E. 2d 877 (1983);
State v. Hatfield, Supra.; State v. Kirtley, 162 W.Va.
249, 252 S.E. 2d 587 (1979); State v. Messinger, 163 W.Va. 447, 256 S.E.
2d 587 (1979); State v. Sanders, 161 W.Va. 399, 242 S.E. 2d 554 (1978);
State v. Bragg, 140 W.Va. 585, 87 S.E. 2d 689 (1955). The element of
malice is discussed.
4. State v. Schroeder, 172 W.Va. 1, 302 S.E.
2d 70 (1982); State v. Keeton, 166 W.Va. 77, 272 S.E. 2d 817 (1980);
State v. Bragg, Supra.; State v. Dodds, 54 W.Va. 289, 46
S.E. 228 (1903). The elements of premeditation and deliberation are discussed.
5. State v. Hatfield, Supra.; State
v. Young, 166 W.Va. 309, 273 S.E. 2d 592 (1980); State v. Keeton,
Supra. The intent to kill is discussed.
6. State v. McGuire, 490 S.E. 2d 912 (W.Va.
1997) the elements of voluntary manslaughter are discussed.
7. State v. Jenkins, 443 S.E. 2d 244 (W.Va.
1994)
MURDER OF THE FIRST DEGREE
FELONY MURDER
AGGRAVATED ROBBERY
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Aggravated Robbery is committed when one person takes
or attempts to take from the person of another or in his presence against his
will any property, money or other thing of value belonging to, or in the care,
custody, control, management or possession of such other person by partial strangulation
or suffocation or by striking or beating or by other violence to the person,
or by the threat or presenting of firearms or by other deadly weapon or instrumentality
with the intent to deprive the victim permanently of the property.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant ______________________________,
2. in __________________ County, West Virginia,
3. on or about the _____ day of ________________, 199__,
4. with the intent at the time to commit the offense
of Aggravated Robbery,
5. did take
6. (from the person of ______________________________),
(from the presence of ______________________________),
7. against his/her will,
8. all or any part or portion of (describe property
or money __________________________________________________________________________)
of some value,
9. (belonging to ______________________________), (in
the care of ______________________________),
(in the custody of ______________________________),
(in the control of ______________________________),
(in the management of ______________________________),
(in the possession of ______________________________),
10. (by presenting a firearm, to-wit: _____________________),
(by strangulation), (by suffocation), (by striking), (by beating), (by the threat
of ___________________________________________), (by (describe violence
___________________________________________),
11. putting ______________________________ in fear by
(describe the act ___________________________________________________________________________________________________)
12. And that the Defendant ______________________________
13. (in the commission of Aggravated Robbery),
(in the attempt to commit such Aggravated Robbery),
14. did
15. in ______________ County, West Virginia,
16. on or about the _____ day of _______________, 199__,
17. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. That recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
AGGRAVATED ROBBERY
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-2-12.
3. State v. Walker, 188 W.Va. 661, 425 S.E. 2d
616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991); State
v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
BURGLARY
DAYTIME ENTERING WITHOUT BREAKING
_____________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine, Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Burglary is committed when any person breaks and enters,
or enters without breaking either in the daytime or nighttime a dwelling house
or outhouse adjoining thereto, or occupied therewith of another person with
the intent to commit a crime therein.
"Dwelling house" shall include but not be
limited to a mobile home, house trailer, modular home, factory-built home or
self-propelled motor home, used as a dwelling regularly or only from time to
time, or any other nonmobile vehicle primarily designed for human habitation
and occupancy and used as a dwelling regularly or only from time to time.
"___________________________________" is committed
when any person (elements and definition of offense intended to be committed
inside the dwelling house )
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2_____
4. with the intent to commit the offense of Burglary,
5. did enter without breaking, in the daytime,
6. the dwelling house (or other type residential structure)
7. belonging to ______________________________,
8. with the intent to commit the crime of ______________________________
therein,
9. and that the Defendant ______________________________
in the commission of Burglary,
10. did
11. in _______________ County, West Virginia,
12. on or about the _____ day of _______________, 2_____,
13. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
BURGLARY
DAYTIME ENTERING WITHOUT BREAKING
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-3-11.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
BURGLARY
DAYTIME BREAKING AND ENTERING
_____________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine, Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Burglary is committed when any person breaks and enters,
or enters without breaking either in the daytime or nighttime a dwelling house
or outhouse adjoining thereto, or occupied therewith of another person with
the intent to commit a crime therein.
"Dwelling house" shall include but not be
limited to a mobile home, house trailer, modular home, factory-built home or
self-propelled motor home, used as a dwelling regularly or only from time to
time, or any other nonmobile vehicle primarily designed for human habitation
and occupancy and used as a dwelling regularly or only from time to time.
"________________________________________"
is committed when any person (elements and definition of offense intended
to be committed inside the dwelling house)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony murder doctrine,,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2_____
4. with the intent to commit the offense of Burglary,
5. did break and enter, in the daytime,
6. the dwelling house (or other type residential structure),
7. belonging to ______________________________,
8. with the intent to commit the crime of _______________
therein
9. and that the Defendant ______________________________
in the commission of Burglary,
10. did
11. in _______________ County, West Virginia,
12. on or about the _____ day of _______________, 2_____
13. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
BURGLARY
DAYTIME BREAKING AND ENTERING
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-3-11.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
BURGLARY
NIGHTTIME BREAKING AND ENTERING
_____________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine, Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Burglary is committed when any person breaks and enters,
or enters without breaking either in the daytime or nighttime a dwelling house
or outhouse adjoining thereto, or occupied therewith of another person with
the intent to commit a crime therein.
"Dwelling house" shall include but not be
limited to a mobile home, house trailer, modular home, factory-built home or
self-propelled motor home, used as a dwelling regularly or only from time to
time, or any other nonmobile vehicle primarily designed for human habitation
and occupancy and used as a dwelling regularly or only from time to time.
"______________________________________" is
committed when any person (elements and definition of offense intended
to be committed inside the dwelling house) _____________________________________________________________________
_____________________________________________________________________ __________________.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2_____
4. with the intent to commit the offense of Burglary,
5. did break and enter, in the nighttime,
6. the dwelling house (or other type residential structure)
7. belonging to ______________________________,
8. with the intent to commit the crime of _______________
therein
9. and that the Defendant ______________________________
in the commission of Burglary,
10. did,
11. in _______________ County, West Virginia,
12. on or about the _____ day of _______________, 2_____
13. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
BURGLARY
NIGHTTIME BREAKING AND ENTERING
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-3-11.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
BURGLARY
NIGHTTIME ENTERING WITHOUT BREAKING
_____________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine, Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Burglary is committed when any person breaks and enters,
or enters without breaking either in the daytime or nighttime a dwelling house
or outhouse adjoining thereto, or occupied therewith of another person with
the intent to commit a crime therein.
"Dwelling house" shall include but not be
limited to a mobile home, house trailer, modular home, factory-built home or
self-propelled motor home, used as a dwelling regularly or only from time to
time, or any other nonmobile vehicle primarily designed for human habitation
and occupancy and used as a dwelling regularly or only from time to time.
"_________________________________________"
is committed when any person (elements and definition of offense intended
to be committed inside the dwelling house)
_________________________________________________________________
_________________________________________________________________
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2_____
4. with the intent to commit the offense of Burglary,
5. did enter without breaking in the nighttime,
6. the dwelling house (or other type residential structure)
7. belonging to ______________________________,
8. with the intent to commit the crime of ____________________
therein,
9. and that the Defendant ______________________________
in the commission of Burglary,
10. did
11. in _________________ County, West Virginia
12. on or about the ____ day of _______________,
2_____
13. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
BURGLARY
NIGHTTIME ENTERING WITHOUT BREAKING
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-3-11.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
BREAKING AND ENTERING NON-DWELLING
_____________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine, Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
"Breaking and Entering" is committed when
any person breaks and enters any office, shop, storehouse, warehouse, banking
house or any house or building other than a dwelling house or outhouse adjoining
thereto or occupied therewith, or any railroad or traction car, propelled by
steam, electricity or otherwise, or any steamboat or other boat or vessel, with
intent to commit a felony or any larceny therein.
"Larceny" is committed when any person steals,
takes and carries away personal property of another person without his consent
with the intent to permanently deprive the owner of his property.
"_____________________________________" is
committed when any person (elements and definition of offense intended
to be committed inside the non-dwelling building) _________________________________________________________________
_________________________________________________________________
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2____,
4. with the intent to commit the offense of Breaking
and Entering,
5. did break and enter,
6. (type of structure_________________________________________)
belonging to ______________________________________,
7. with the intent to commit ___________________________________
therein. a. in that the Defendant
b. did therein
c. _______________________________________________________
d. _______________________________________________________
8. and that the Defendant ______________________________
in the commission of
Breaking and Entering
9. did,
10. in _______________ County, West Virginia,
11. on or about the _____ day of _______________, 2____
12. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
BREAKING AND ENTERING NON-DWELLING
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-3-12.
3. State v. Walker, 188 W.Va. 661, 425 S.E. 2d
616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991); State
v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
KIDNAPPING
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Kidnapping is committed when any person by force, threat,
duress, fraud or enticement, takes, confines, conceals, decoys, inveigles, entices
away, transports into or out of West Virginia or within West Virginia, or otherwise
kidnaps another person for the purpose or with the intent of taking, receiving,
demanding or extorting from such person, any ransom, money or other thing, or
any concession or advantage of any sort, or for the purpose or with the intent
of shielding or protecting himself or others from bodily harm, or of evading
capture or arrest after he or they have committed a crime.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 199__,
4. with the intent at the time to commit the offense
of Kidnapping,
5. did by (force), (threat), (duress), (fraud) or (enticement)
6. (take) (confine) (conceal) (decoy) (inveigle) (entice
away) (transport into West Virginia) (transport out of West Virginia) or (otherwise
kidnap),
7. (person)______________________________,
8. for the purpose of or with the intent of taking,
receiving, demanding or extorting from (person) ______________________________________
or (another person or persons)_________________________________________________,
9. any (ransom) (money) (other thing) (concession)
or (advantage) (or for the purpose of shielding or protecting himself or (other
person) from bodily harm or capture or arrest after he (they) have committed
a crime),
10. and that the Defendant ______________________________,
11. (in the attempt to commit such kidnapping) or (in
the commission of such kidnapping),
12. did
13. in _______________ County, West Virginia,
14. on or about the _____ day of _______________, 199__,
15. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. That recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board..
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
KIDNAPPING
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-2-14a.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
ARSON
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine, Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
First Degree Arson is committed when any person wilfully
and maliciously sets fire to, burns, causes to be burned, aids, counsels or
procures the burning of any dwelling house, kitchen, shop, barn, stable or other
outhouse belonging to another person.
Second Degree Arson is committed when any person wilfully
and maliciously sets fire to, burns, causes to be burned, aids, counsels or
procures the burning of any building of a type not mentioned in the definition
of First Degree Arson whether the property of the perpetrator or another person.
Third Degree Arson is committed when any person wilfully
and maliciously sets fire to, burns, causes to be burned, aids, counsel or procures
the burning of any personal property of a value of not less than fifty dollars
belonging to another person.
The burden is on the State
to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He
is presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2_____
4. with the intent to commit,
5. did wilfully and maliciously,
6. set fire to (burn, cause to be burned, aid in the
burning, procure the burning),
7. (describe structure or vehicle)_________________________________________,
8. belonging to ______________________________,
9. and that ______________________________ in the commission
of such arson (or the attempt to commit such arson),
10. did in _______________ County, West Virginia,
11. on or about the _____ day of _______________, 2_____
12. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
ARSON
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-3-1 through 3.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT FIRST DEGREE
where serious bodily injury
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Sexual Assault in the First Degree is committed when
any person engages in sexual intercourse or sexual intrusion with another person
without the consent of the other person and the perpetrator inflicts serious
bodily injury upon anyone, or where the perpetrator employs a deadly weapon
in the commission of the act; and Sexual Assault in the First Degree is also
committed when any person fourteen years old or more engages in sexual intercourse
or sexual intrusion with another person who is eleven years old or less.
"Sexual intercourse" means any act between
persons not married to each other involving penetration, however slight, of
the female sex organ by the male sex organ or involving contact between the
sex organs of one person and the mouth or anus of another person.
"Sexual intrusion" means any act between persons
not married to each other involving penetration, however slight, of the female
sex organ or of the anus of any person by an object for the purpose of degrading
or humiliating the person so penetrated or for gratifying the sexual desire
of either party.
"Serious Bodily Injury" means bodily injury
which creates a substantial risk of death, which causes serious or prolonged
disfigurement, prolonged impairment of health, or prolonged loss or impairment
of function of any bodily organ.
"Lack of Consent" results from: (1) Forcible
Compulsion, or (2) incapacity to consent, and a person is deemed incapable to
consent when such person is: [1] less than sixteen years old or [2] mentally
defective, or [3] mentally incapacitated, or [4] physically helpless.
"Forcible Compulsion" means: (a) physical
force that overcomes such earnest resistance as might reasonably be expected
under the circumstances, or (b) threat or intimidation, express or implied,
placing a person in fear of immediate death or bodily injury to himself or another
person or in fear that he or another person will be kidnapped, or (c) fear by
a child under sixteen years of age caused by intimidation, expressed or implied
by another person four years older than the victim. For purposes of this definition,
"resistance" include physical resistance or any clear communication
of the victim's lack of consent.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in ________________ County, West Virginia,
3. on or about the _______ day of ___________________,
2_____
4. with the intent at the time to commit the offense
of Sexual Assault in the First Degree,
5. did engage in (sexual intercourse) (sexual intrusion),
6. with another person, ______________________________,
7. without the consent of ______________________________,
8. and in doing so he did inflict serious bodily injury
upon ______________________________________,
9. and that the Defendant ______________________________
in the commission of Sexual Assault in the First Degree,
10. did
11. in _______________ County, West Virginia,
12. on or about the _____ day of _______________, 2_____
13. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT FIRST DEGREE
where serious bodily injury
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-8B-3.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT FIRST DEGREE
victim 11 yrs. or less
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnaping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Sexual Assault in the First Degree is committed when
any person engages in sexual intercourse or sexual intrusion with another person
without the consent of the other person and the perpetrator inflicts serious
bodily injury upon anyone, or where the perpetrator employs a deadly weapon
in the commission of the act; and Sexual Assault in the First Degree is also
committed when any person fourteen years old or more engages in sexual intercourse
or sexual intrusion with another person who is eleven years old or less.
"Sexual intercourse" means any act between
persons not married to each other involving penetration, however slight, of
the female sex organ by the male sex organ or involving contact between the
sex organs of one person and the mouth or anus of another person.
"Sexual intrusion" means any act between persons
not married to each other involving penetration, however slight, of the female
sex organ or of the anus of any person by an object for the purpose of degrading
or humiliating the person so penetrated or for gratifying the sexual desire
of either party.
"Deadly Weapon" means any instrument, device
or thing capable of inflicting death or serious bodily injury, and designed
or specially adapted for use as a weapon, or possessed, carried or used as a
weapon.
"Lack of Consent" results from: (1) Forcible
Compulsion, or (2) incapacity to consent, and a person is deemed incapable to
consent when such person is: [1] less than sixteen years old or [2] mentally
defective, or [3] mentally incapacitated, or [4] physically helpless.
"Forcible Compulsion" means: (a) physical
force that overcomes such earnest resistance as might reasonably be expected
under the circumstances, or (b) threat or intimidation, express or implied,
placing a person in fear of immediate death or bodily injury to himself or another
person or in fear that he or another person will be kidnapped, or (c) fear by
a child under sixteen years of age caused by intimidation, expressed or implied
by another person four years older than the victim. For purposes of this definition,
"resistance" include physical resistance or any clear communication
of the victim's lack of consent.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2____,
4. with the intent at the time to commit the offense
of Sexual Assault in the First Degree,
5. did engage in (sexual intercourse) (sexual intrusion),
6. with another person, ______________________________,
she being eleven years old or less,
7. And the Defendant ______________________________
being fourteen years old or more,
8. and that the Defendant ______________________________
in the commission of Sexual Assault in the First Degree,
9. did
10. in _______________ County, West Virginia,
11. on or about the _____ day of _______________, 2____,
12. kill ______________________________,
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board..
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT FIRST DEGREE
victim 11 yrs. or less
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-8B-3.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT THIRD DEGREE
victim less than 16 yrs
_____________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine, Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Sexual Assault in the Third Degree is committed when
any person engages in sexual intercourse or sexual intrusion with another person
who is mentally defective or mentally incapacitated; or where a person engages
in sexual intercourse or sexual intrusion with another person who is less than
sixteen years old and who is at least four years younger than the defendant.
"Mentally defective" means that a person suffers
from a mental disease or defect which renders such person incapable of appraising
the nature of his conduct.
"Mentally incapacitated" means that a person
is rendered temporarily incapable of appraising or controlling his or her conduct
as a result of the influence of a controlled or intoxicating substance administered
to such person without his or her consent or as a result of any other act committed
upon such person without his or her consent.
"Sexual intercourse" means any act between
persons not married to each other involving penetration, however slight, of
the female sex organ by the male sex organ or involving contact between the
sex organs of one person and the mouth or anus of another person.
"Sexual intrusion" means any act between persons
not married to each other involving penetration, however slight, of the female
sex organ or of the anus of any person by an object for the purpose of degrading
or humiliating the person so penetrated or for gratifying the sexual desire
of either party.
"Lack of Consent" results from: (1) Forcible
Compulsion, or (2) incapacity to consent, and a person is deemed incapable to
consent when such person is: [1] less than sixteen years old or [2] mentally
defective, or [3] mentally incapacitated, or [4] physically helpless.
"Forcible Compulsion" means: (a) physical
force that overcomes such earnest resistance as might reasonably be expected
under the circumstances, or (b) threat or intimidation, express or implied,
placing a person in fear of immediate death or bodily injury to himself or another
person or in fear that he or another person will be kidnapped, or (c) fear by
a child under sixteen years of age caused by intimidation, expressed or implied
by another person four years older than the victim. For purposes of this definition,
"resistance" include physical resistance or any clear communication
of the victim's lack of consent.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2_____
4. with the intent at the time to commit the offense
of Sexual Assault in the Third Degree,
5. did engage in (sexual intercourse) (sexual intrusion),
6. with another person, ______________________________,
7. she being less than sixteen years old and incapable
of consent,
8. and he being at least four years older than ______________________________,
9. and that the Defendant ______________________________
in the commission of Sexual Assault in the Third Degree,
10. did
11. in _______________ County, West Virginia,
12. on or about the _____ day of _______________, 2_____
13. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT THIRD DEGREE
victim less than 16 yrs
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-8B-5.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT FIRST DEGREE
deadly weapon employed
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Sexual Assault in the First Degree is committed when
any person engages in sexual intercourse or sexual intrusion with another person
without the consent of the other person and the perpetrator inflicts serious
bodily injury upon anyone, or where the perpetrator employs a deadly weapon
in the commission of the act; and Sexual Assault in the First Degree is also
committed when any person fourteen years old or more engages in sexual intercourse
or sexual intrusion with another person who is eleven years old or less.
"Sexual intercourse" means any act between
persons not married to each other involving penetration, however slight, of
the female sex organ by the male sex organ or involving contact between the
sex organs of one person and the mouth or anus of another person.
"Sexual intrusion" means any act between persons
not married to each other involving penetration, however slight, of the female
sex organ or of the anus of any person by an object for the purpose of degrading
or humiliating the person so penetrated or for gratifying the sexual desire
of either party.
"Deadly Weapon" means any instrument, device
or thing capable of inflicting death or serious bodily injury, and designed
or specially adapted for use as a weapon, or possessed, carried or used as a
weapon.
"Lack of Consent" results from: (1) Forcible
Compulsion, or (2) incapacity to consent, and a person is deemed incapable to
consent when such person is: [1] less than sixteen years old or [2] mentally
defective, or [3] mentally incapacitated, or [4] physically helpless.
"Forcible Compulsion" means: (a) physical
force that overcomes such earnest resistance as might reasonably be expected
under the circumstances, or (b) threat or intimidation, express or implied,
placing a person in fear of immediate death or bodily injury to himself or another
person or in fear that he or another person will be kidnapped, or (c) fear by
a child under sixteen years of age caused by intimidation, expressed or implied
by another person four years older than the victim. For purposes of this definition,
"resistance" include physical resistance or any clear communication
of the victim's lack of consent.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in _________________ County, West Virginia,
3. on or about the _____ day of _______________, 2_____
4. with the intent at the time to commit the offense
of Sexual Assault in the First Degree,
5. did engage in (sexual intercourse) (sexual intrusion),
6. with another person, ______________________________,
7. without the consent of ______________________________,
8. and in doing so he did employ a deadly weapon, to-wit:
__________________________________,,
9. and that the Defendant ______________________________
in the commission of Sexual Assault in the First Degree,
10. did
11. in _________________ County, West Virginia,
12. on or about the _____ day of _______________, 2_____
13. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board..
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT FIRST DEGREE
deadly weapon employed
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-8B-3.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT SECOND DEGREE
physically helpless
_____________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Sexual Assault in the Second Degree is committed when
any person engages in sexual intercourse or sexual intrusion with another person
without the consent of the other person and the lack of consent results from
forcible compulsion, or where such person engages in sexual intercourse or sexual
intrusion with another person who is physically helpless.
"Physically helpless" means that a person
is unconscious or for any reason is physically unable to communicate unwillingness
to the act.
"Sexual intercourse" means any act between
persons not married to each other involving penetration, however slight, of
the female sex organ by the male sex organ or involving contact between the
sex organs of one person and the mouth or anus of another person.
"Sexual intrusion" means any act between persons
not married to each other involving penetration, however slight, of the female
sex organ or of the anus of any person by an object for the purpose of degrading
or humiliating the person so penetrated or for gratifying the sexual desire
of either party.
"Deadly Weapon" means any instrument, device
or thing capable of inflicting death or serious bodily injury, and designed
or specially adapted for use as a weapon, or possessed, carried or used as a
weapon.
"Lack of Consent" results from: (1) Forcible
Compulsion, or (2) incapacity to consent, and a person is deemed incapable to
consent when such person is: [1] less than sixteen years old or [2] mentally
defective, or [3] mentally incapacitated, or [4] physically helpless.
"Forcible Compulsion" means: (a) physical
force that overcomes such earnest resistance as might reasonably be expected
under the circumstances, or (b) threat or intimidation, express or implied,
placing a person in fear of immediate death or bodily injury to himself or another
person or in fear that he or another person will be kidnapped, or (c) fear by
a child under sixteen years of age caused by intimidation, expressed or implied
by another person four years older than the victim. For purposes of this definition,
"resistance" include physical resistance or any clear communication
of the victim's lack of consent.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree, the State of West Virginia must
overcome the presumption that the Defendant, ______________________________
is innocent and prove to the satisfaction of the jury beyond a reasonable doubt
that:
1. The Defendant, ______________________________
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2_____
4. with the intent at the time to commit the offense
of Sexual Assault in the Second Degree,
5. did engage in (sexual intercourse) (sexual intrusion),
6. with another person, ______________________________,
7. without the consent of ______________________________,
8. she being physically helpless,
9. and that the Defendant ______________________________
in the commission of Sexual Assault in the Second Degree,
10. did
11. in _______________ County, West Virginia,
12. on or about the _____ day of _______________, 2_____
13. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count ____ of the indictment. If the jury and each member of the
jury has a reasonable doubt of the truth of the charge as to any one or more
of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years., but that mere eligibility for parole in no way guarantees immediate
parole after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board..
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT SECOND DEGREE
physically helpless
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-8B-4.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT THIRD DEGREE
mentally incapacitated
_____________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine, Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Sexual Assault in the Third Degree is committed when
any person engages in sexual intercourse or sexual intrusion with another person
who is mentally defective or mentally incapacitated; or where a person engages
in sexual intercourse or sexual intrusion with another person who is less than
sixteen years old and who is at least four years younger than the defendant.
"Mentally defective" means that a person suffers
from a mental disease or defect which renders such person incapable of appraising
the nature of his conduct.
"Mentally incapacitated" means that a person
is rendered temporarily incapable of appraising or controlling his or her conduct
as a result of the influence of a controlled or intoxicating substance administered
to such person without his or her consent or as a result of any other act committed
upon such person without his or her consent.
"Sexual intercourse" means any act between
persons not married to each other involving penetration, however slight, of
the female sex organ by the male sex organ or involving contact between the
sex organs of one person and the mouth or anus of another person.
"Sexual intrusion" means any act between persons
not married to each other involving penetration, however slight, of the female
sex organ or of the anus of any person by an object for the purpose of degrading
or humiliating the person so penetrated or for gratifying the sexual desire
of either party.
"Lack of Consent" results from: (1) Forcible
Compulsion, or (2) incapacity to consent, and a person is deemed incapable to
consent when such person is: [1] less than sixteen years old or [2] mentally
defective, or [3] mentally incapacitated, or [4] physically helpless.
"Forcible Compulsion" means: (a) physical
force that overcomes such earnest resistance as might reasonably be expected
under the circumstances, or (b) threat or intimidation, express or implied,
placing a person in fear of immediate death or bodily injury to himself or another
person or in fear that he or another person will be kidnapped, or (c) fear by
a child under sixteen years of age caused by intimidation, expressed or implied
by another person four years older than the victim. For purposes of this definition,
"resistance" include physical resistance or any clear communication
of the victim's lack of consent.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2_____
4. with the intent at the time to commit the offense
of Sexual Assault in the Third Degree,
5. did engage in (sexual intercourse) (sexual intrusion),
6. with another person, ______________________________,
7. without the consent of ______________________________,
8. she being mentally incapacitated,
9. and that the Defendant ______________________________
in the commission of Sexual Assault in the Third Degree
10. did
11. in _______________ County, West Virginia,
12. on or about the _____ day of _______________, 2_____
13. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT THIRD DEGREE
mentally incapacitated
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-8B-5.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT THIRD DEGREE
mentally defective
_____________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine, Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Sexual Assault in the Third Degree is committed when
any person engages in sexual intercourse or sexual intrusion with another person
who is mentally defective or mentally incapacitated; or where a person engages
in sexual intercourse or sexual intrusion with another person who is less than
sixteen years old and who is at least four years younger than the defendant.
"Mentally defective" means that a person suffers
from a mental disease or defect which renders such person incapable of appraising
the nature of his conduct.
"Mentally incapacitated" means that a person
is rendered temporarily incapable of appraising or controlling his or her conduct
as a result of the influence of a controlled or intoxicating substance administered
to such person without his or her consent or as a result of any other act committed
upon such person without his or her consent.
"Sexual intercourse" means any act between
persons not married to each other involving penetration, however slight, of
the female sex organ by the male sex organ or involving contact between the
sex organs of one person and the mouth or anus of another person.
"Sexual intrusion" means any act between persons
not married to each other involving penetration, however slight, of the female
sex organ or of the anus of any person by an object for the purpose of degrading
or humiliating the person so penetrated or for gratifying the sexual desire
of either party.
"Lack of Consent: results from: (1) Forcible Compulsion,
or (2) incapacity to consent, and a person is deemed incapable to consent when
such person is: [1] less than sixteen years old or [2] mentally defective, or
[3] mentally incapacitated, or [4] physically helpless.
"Forcible Compulsion" means: (a) physical
force that overcomes such earnest resistance as might reasonably be expected
under the circumstances, or (b) threat or intimidation, express or implied,
placing a person in fear of immediate death or bodily injury to himself or another
person or in fear that he or another person will be kidnapped, or (c) fear by
a child under sixteen years of age caused by intimidation, expressed or implied
by another person four years older than the victim. For purposes of this definition,
"resistance" include physical resistance or any clear communication
of the victim's lack of consent.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 199__,
4. with the intent at the time to commit the offense
of Sexual Assault in the Third Degree,
5. did engage in (sexual intercourse) (sexual intrusion),
6. with another person, ______________________________,
7. without the consent of ______________________________,
8. she being a mentally defective person,
9. and that the Defendant ______________________________
in the commission of Sexual Assault in the Third Degree,
10. did
11. in _______________ County, West Virginia,
12. on or about the _____ day of _______________, 199__,
13. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT THIRD DEGREE
mentally defective
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-8B-5.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT SECOND DEGREE
forcible compulsion
___________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnapping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Sexual Assault in the Second Degree is committed when
any person engages in sexual intercourse or sexual intrusion with another person
without the consent of the other person and the lack of consent results from
forcible compulsion, or where such person engages in sexual intercourse or sexual
intrusion with another person who is physically helpless.
"Physically helpless" means that a person
is unconscious or for any reason is physically unable to communicate unwillingness
to the act.
"Sexual intercourse" means any act between
persons not married to each other involving penetration, however slight, of
the female sex organ by the male sex organ or involving contact between the
sex organs of one person and the mouth or anus of another person.
"Sexual intrusion" means any act between persons
not married to each other involving penetration, however slight, of the female
sex organ or of the anus of any person by an object for the purpose of degrading
or humiliating the person so penetrated or for gratifying the sexual desire
of either party.
"Lack of Consent" results from: (1) Forcible
Compulsion, or (2) incapacity to consent, and a person is deemed incapable to
consent when such person is: [1] less than sixteen years old or [2] mentally
defective, or [3] mentally incapacitated, or [4] physically helpless.
"Forcible Compulsion" means: (a) physical
force that overcomes such earnest resistance as might reasonably be expected
under the circumstances, or (b) threat or intimidation, express or implied,
placing a person in fear of immediate death or bodily injury to himself or another
person or in fear that he or another person will be kidnapped, or (c) fear by
a child under sixteen years of age caused by intimidation, expressed or implied
by another person four years older than the victim. For purposes of this definition,
"resistance" include physical resistance or any clear communication
of the victim's lack of consent.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of
Murder of the First Degree under the Felony-Murder Doctrine, the State of West
Virginia must overcome the presumption that the Defendant, ______________________________
is innocent and prove to the satisfaction of the jury beyond a reasonable doubt
that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2_____
4. with the intent at the time to commit the offense
of Sexual Assault in the Second Degree,
5. did engage in (sexual intercourse) (sexual intrusion),
6. with another person, ______________________________,
7. without the consent of ______________________________,
8. which lack of consent results from forcible compulsion,
9. and that the Defendant ______________________________
in the commission of Sexual Assault in the Second Degree,
10. did
11. in _________________ County, West Virginia ,
12. on or about the _____ day of _______________, 2_____
13. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of
Murder of the First Degree as charged in Count _____ of the indictment. If
the jury and each member of the jury has a reasonable doubt of the truth of
the charge as to any one or more of these elements of Murder of the First Degree,
you shall find the Defendant ______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. That recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
SEXUAL ASSAULT SECOND DEGREE
forcible compulsion
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-8B-4.
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
escape from custody of the Commissioner
_____________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnaping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine, Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Escape From Custody of the Commissioner of Corrections
is committed when any person, regardless of where such person is confined, or
where the escape occurs, escapes while in the custody of the Commissioner of
Corrections.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Murder of the First Degree under the Felony-Murder Doctrine,
the State of West Virginia must overcome the presumption that the Defendant,
______________________________
is innocent and prove to the satisfaction of the jury beyond a reasonable
doubt that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2_____
4. with the intent to escape from custody of the Commissioner
of Corrections,
5. did escape from the custody of the Commissioner of
Corrections,
6. and that ______________________________ in the commission
of the escape from the custody of the Commissioner of Corrections,
7. did in _______________ County, West Virginia,
8. on or about the _____ day of _______________, 2____,
9. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Murder of the First Degree, you shall find the Defendant
______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the
Defendant ______________________________ could be eligible for parole consideration
after having served a minimum of _____ years, but that mere eligibility for
parole in no way guarantees immediate parole after _____ years and that parole
is given to inmates only after a thorough consideration of their records by
the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
escape from custody of the Commissioner
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-5-12a.
3. State v. Walker, 188 W.Va. 661, 425 S.E. 2d
616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991); State
v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
manufacturing controlled substance
_____________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnaping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine, Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Felonious manufacturing of a controlled substance is
committed when any person unlawfully, knowingly and feloniously manufactures
a schedule _____ controlled substance.
The Court instructs the jury that __________________
or derivatives of _________________ are Schedule _____ controlled substances.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of
Murder of the First Degree under the Felony-murder doctrine, the State of West
Virginia must overcome the presumption that the Defendant, ______________________________
is innocent and prove to the satisfaction of the jury beyond a reasonable doubt
that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2____,
4. with the intent at the time to commit the offense
of felonious manufacturing of a Schedule _____ controlled substance,
5. did knowingly manufacture,
6. a Schedule _____ controlled substance, to-wit: _______________
7. and that the Defendant ______________________________,
8. in the commission of such felonious manufacturing
of a Schedule _____ controlled substance (in the attempt to commit such felonious
manufacturing of a Schedule _____ controlled substance)
9. did
10. in _______________ County, West Virginia,
11. on or about the _____ day of _______________, 2____,
12. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and
each member of the jury has a reasonable doubt of the truth of the charge as
to any one or more of these elements of Murder of the First Degree, you shall
find the Defendant ______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
manufacturing controlled substance
1. W.Va. Code §61-2-1.
2. W.Va. Code §60A-4-401(a).
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE FIRST DEGREE
FELONY MURDER
delivery controlled substance
_____________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the First Degree. One of two verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty; and (2) not
guilty.
Murder of the First Degree is committed when any person
in the commission of or attempt to commit arson, kidnaping, sexual assault,
robbery, burglary, breaking and entering, escape from lawful custody or a felony
offense of manufacturing or delivering of a controlled substance kills another
person. Under the felony-murder doctrine, Murder of the First Degree does not
require proof of the elements of willfulness, deliberation, premeditation, malice
or specific intent to kill. It is deemed sufficient if the homicide occurs during
the commission of or the attempt to commit one of the enumerated felonies.
Felonious delivery of a Schedule _____ controlled substance
is committed when any person unlawfully, knowingly and feloniously delivers
a Schedule _____ controlled substance.
The Court instructs the jury that ____________________
or derivatives of ______________ are Schedule _____ controlled substances.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of
Murder of the First Degree under the Felony-Murder Doctrine,, the State of
West Virginia must overcome the presumption that the Defendant, ______________________________
is innocent and prove to the satisfaction of the jury beyond a reasonable doubt
that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2_____
4. with the intent at the time to commit the offense
of felonious delivery of a Schedule _____ controlled substance,
5. did knowingly deliver to ______________________________,
6. a Schedule _____ controlled substance, to-wit: _______________
7. and that the Defendant ______________________________,
8. in the commission of such felonious delivery of
a Schedule _____ controlled substance (in the attempt to commit such felonious
delivery of a Schedule _____ controlled substance)
9. did
10. in _______________ County, West Virginia,
11. on or about the _____ day of _______________, 2_____,
12. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the First Degree, you
may find ______________________________ guilty of Murder of the First Degree
as charged in Count _____ of the indictment. If the jury and
each member of the jury has a reasonable doubt of the truth of the charge as
to any one or more of these elements of Murder of the First Degree, you shall
find the Defendant ______________________________ not guilty.
If you find the Defendant guilty of Murder of the First
Degree, the Court must sentence him to confinement in the penitentiary for life,
and he shall not be eligible for parole unless you, in your discretion, further
find and add to your verdict, a recommendation for mercy. Such a recommendation
of mercy would mean that the Defendant ______________________________ could
be eligible for parole consideration after having served a minimum of _____
years, but that mere eligibility for parole in no way guarantees immediate parole
after _____ years and that parole is given to inmates only after a thorough
consideration of their records by the parole board.
COMMENT
MURDER OF THE FIRST DEGREE
FELONY MURDER
delivery controlled substance
1. W.Va. Code §61-2-1.
2. W.Va. Code §60A-4-401(a).
3. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Julius, 185 W.Va. 422, 408 S.E. 2d 1 (1991);
State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Mayle,
178 W.Va. 26, 357 S.E. 2d 219 (1987); State v. Young, 173 W.Va. 1, 311
S.E. 2d 118 (1983); State V. Williams, 172 W.Va. 295, 305 S.E. 2d 251
(1983); State v. Wayne, 169 W.Va. 785, 289 S.E. 2d 480 (1982); State
ex rel. Hall v. Strickler, 168 W.Va. 496, 285 S.E. 2d 143 (1981); State
v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Grimmer,
162 W.Va. 588, 251 S.E. 2d 780 (1979); State v. Sims, 162 W.Va. 212,
248 S.E. 2d 834 (1978). The felony-murder doctrine is discussed in these cases.
4. 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.
5. See separate Felony-Murder Instruction, page 1285.
MURDER OF THE SECOND DEGREE
(including lesser offenses)
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in this case is Murder
of the Second Degree. One of four verdicts may be returned by you under this
Count of the Indictment. They are: (1) guilty of Murder of the Second Degree;
and (2) Guilty of Voluntary Manslaughter; (3) Guilty of Involuntary Manslaughter
and (4) Not guilty.
Murder of the Second Degree is the unlawful, intentional killing of another
person with malice but without deliberation or premeditation.
Voluntary Manslaughter is the felonious, unlawful and intentional taking of
another person's life but without premeditation, deliberation or malice.
Involuntary Manslaughter is the accidental causing of death of another person,
although unintended, which death is the proximate result of negligence so gross,
wanton and culpable as to show a reckless disregard for human life.
The burden is on the State to prove the guilt of the Defendant beyond a reasonable
doubt and the Defendant, ______________________________ is not required to prove
himself innocent. He is presumed by the law to be innocent of this charge and
this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________ can be convicted of murder
of the second degree, the State of West Virginia must overcome the presumption
that the Defendant, ______________________________ is innocent and prove to
the satisfaction of the jury beyond a reasonable doubt that:
The Defendant, ______________________________,
in _______________ County, West Virginia,
on or about the _____ day of _______________, 2____,
did unlawfully, intentionally and maliciously but without deliberation
or premeditation,
kill ______________________________.
If after impartially considering, weighing and comparing all the evidence,
(both that of the State and that of the Defendant) the jury and each member
of the jury is convinced beyond a reasonable doubt of the truth of the charge
as to each of these elements of Murder of the Second Degree, you may find ______________________________
guilty of Murder of the Second Degree as charged in Count _____ of the indictment.
If the jury and each member of the jury has a reasonable doubt of the truth
of the charge as to any one or more of these elements of Murder of the Second
Degree, you shall find the Defendant ______________________________ not guilty
of Murder of the Second Degree (and deliberate on the lesser included offense
of Voluntary Manslaughter as hereinafter instructed).
Before the Defendant ______________________________ can be convicted of Voluntary
Manslaughter, the State of West Virginia must overcome the presumption that
he is innocent and prove to the satisfaction of the jury beyond a reasonable
doubt that:
1. the Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of ______________, 2____,
4. did feloniously, unlawfully and intentionally,
5. without premeditation, deliberation or malice,
6. kill ______________________________.
If after impartially considering, weighing and comparing all the evidence,
(both that of the State and that of the Defendant) the jury and each member
of the jury is convinced beyond a reasonable doubt of the truth of the charge
as to each of these elements of Voluntary Manslaughter, you may find the Defendant
_____________________________ guilty of Voluntary Manslaughter as charged. If
the jury and each member of the jury has a reasonable doubt of the truth of
the charge as to any one or more of these elements of Voluntary Manslaughter,
you shall find the Defendant ______________________________ not guilty of Voluntary
Manslaughter (and deliberate of the lesser included offense of Involuntary Manslaughter
as hereinafter instructed).
Before the Defendant ______________________________ can be convicted of Involuntary
Manslaughter, the State of West Virginia must overcome the presumption that
he is innocent and prove to the satisfaction of the jury beyond a reasonable
doubt that:
1. the Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2____,
4. did unintentionally,
5. cause the death of ______________________________
6. Which death was the proximate result of the negligence of the Defendant
so gross, and culpable as to show a reckless disregard for human life.
If after impartially considering, weighing and comparing all the evidence,
(both that of the State and that of the Defendant) the jury and each member
of the jury is convinced beyond a reasonable doubt of the truth of the charge
as to each of these elements of Involuntary Manslaughter, you may find ______________________________
guilty of Involuntary Manslaughter as charged. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Involuntary Manslaughter, you shall find the Defendant
______________________________ not guilty.
COMMENT
MURDER OF THE SECOND DEGREE
(including lesser offenses)
W.Va. Code §61-2-1.
State v. Walker, 188 W.Va. 661, 425 S.E. 2d 616 (1992); State v.
Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990); State v. Dietz; 182
W.Va. 544, 390 S.E. 2d 15 (1990); State v. Harper, 179 W.Va. 24, 365
S.E. 2d 69 (1987); State v. Hatfield, 169 W.Va. 191, 286 S.E. 2d 402
(1982). These cases discuss the elements of Murder Of The First Degree.
State v. Bongalia, 180 W.Va. 584, 378 S.E. 2d 449 (1989); State
v. Evans, 172 W.Va. 810, 310 S.E. 2d 877 (1983); State v. Hatfield,
Supra.; State v. Kirtley, 162 W.Va. 249, 252 S.E. 2d 587 (1979);
State v. Messinger, 163 W.Va. 447, 256 S.E. 2d 587 (1979); State v.
Sanders, 161 W.Va. 399, 242 S.E. 2d 554 (1978); State v. Bragg, 140
W.Va. 585, 87 S.E. 2d 689 (1955). The element of malice is discussed.
In State v. Jenkins, 443 S.E. 2d 244 (W.Va. 1994) Justice Miller citing
State v. Hatfield, Supra. which in turn cited State v. Starkey,
161 W.Va. 517, 523, 244 S.E. 2d 219, 223 (1978) indicates that while "malice
is often used as a substitute for specific intent to kill, ...it is clear however
that the intent to kill or malice is a required element of both first
and second degree murder."
State v. McGuire, 490 S.E. 2d 912 (W.Va. 1997) The elements of voluntary
manslaughter are discussed.
MURDER OF THE SECOND DEGREE
(including lesser offenses)
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Murder of the Second Degree. One of four verdicts may be returned
by you under this Count of the Indictment. They are: (1) guilty of Murder of
the Second Degree; and (2) Guilty of Voluntary Manslaughter; (3) Guilty of Involuntary
Manslaughter and (4) Not guilty.
Murder of the Second Degree is the unlawful, intentional
killing of another person with malice but without deliberation or premeditation.
Voluntary Manslaughter is the felonious, unlawful and
intentional taking of another person's life but without premeditation, deliberation
or malice.
Involuntary Manslaughter is the accidental causing of
death of another person, although unintended, which death is the proximate result
of negligence so gross, wanton and culpable as to show a reckless disregard
for human life.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of murder of the second degree, the State of West Virginia
must overcome the presumption that the Defendant, ______________________________
is innocent and prove to the satisfaction of the jury beyond a reasonable doubt
that:
1. The Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2____,
4. did unlawfully, intentionally and maliciously but
without deliberation or premeditation,
5. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Murder of the Second Degree, you
may find ______________________________ guilty of Murder of the Second Degree
as charged in Count _____ of the indictment. If the jury and each member of the
jury has a reasonable doubt of the truth of the charge as to any one or more of
these elements of Murder of the Second Degree, you shall find the Defendant ______________________________
not guilty of Murder of the Second Degree (and deliberate on the lesser included
offense of Voluntary Manslaughter as hereinafter instructed).
Before the Defendant ______________________________ can
be convicted of Voluntary Manslaughter, the State of West Virginia must overcome
the presumption that he is innocent and prove to the satisfaction of the jury
beyond a reasonable doubt that:
1. the Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of ______________, 2____,
4. did feloniously, unlawfully and intentionally,
5. without premeditation, deliberation or malice,
6. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Voluntary Manslaughter, you may
find the Defendant _____________________________ guilty of Voluntary Manslaughter
as charged. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Voluntary Manslaughter,
you shall find the Defendant ______________________________ not guilty of Voluntary
Manslaughter (and deliberate of the lesser included offense of Involuntary Manslaughter
as hereinafter instructed).
Before the Defendant ______________________________ can
be convicted of Involuntary Manslaughter, the State of West Virginia must overcome
the presumption that he is innocent and prove to the satisfaction of the jury
beyond a reasonable doubt that:
1. the Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2____,
4. did unintentionally,
5. cause the death of ______________________________
6. Which death was the proximate result of the negligence of the Defendant so
gross, and culpable as to show a reckless disregard for human life.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the
truth of the charge as to each of these elements of Involuntary Manslaughter,
you may find ______________________________ guilty of Involuntary Manslaughter
as charged. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Involuntary
Manslaughter, you shall find the Defendant ______________________________ not
guilty.
COMMENT
MURDER OF THE SECOND DEGREE
(including lesser offenses)
1. W.Va. Code §61-2-1.
2. State v. Walker, 188 W.Va. 661, 425 S.E.
2d 616 (1992); State v. Giles, 183 W.Va. 237, 395 S.E. 2d 481 (1990);
State v. Dietz; 182 W.Va. 544, 390 S.E. 2d 15 (1990); State v. Harper,
179 W.Va. 24, 365 S.E. 2d 69 (1987); State v. Hatfield, 169 W.Va. 191,
286 S.E. 2d 402 (1982). These cases discuss the elements of Murder Of The First
Degree.
3. State v. Bongalia, 180 W.Va. 584, 378 S.E.
2d 449 (1989); State v. Evans, 172 W.Va. 810, 310 S.E. 2d 877 (1983);
State v. Hatfield, Supra.; State v. Kirtley, 162 W.Va.
249, 252 S.E. 2d 587 (1979); State v. Messinger, 163 W.Va. 447, 256 S.E.
2d 587 (1979); State v. Sanders, 161 W.Va. 399, 242 S.E. 2d 554 (1978);
State v. Bragg, 140 W.Va. 585, 87 S.E. 2d 689 (1955). The element of
malice is discussed.
4. In State v. Jenkins, 443 S.E. 2d 244 (W.Va.
1994) Justice Miller citing State v. Hatfield, Supra. which in
turn cited State v. Starkey, 161 W.Va. 517, 523, 244 S.E. 2d 219, 223
(1978) indicates that while "malice is often used as a substitute for specific
intent to kill, ...it is clear however that the intent to kill or malice
is a required element of both first and second degree murder."
5. State v. McGuire, 490 S.E. 2d 912 (W.Va.
1997) The elements of voluntary manslaughter are discussed.
VOLUNTARY MANSLAUGHTER
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Voluntary Manslaughter. One of two verdicts may be returned
by you under the Indictment. They are: (1) Guilty of Voluntary Manslaughter
and (2) Not Guilty.
Voluntary Manslaughter is the felonious, unlawful and
intentional taking of another person's life but without premeditation, deliberation
or malice.
The burden is on the State of West Virginia to prove
the guilt of the Defendant ______________________________ beyond a reasonable
doubt and the Defendant is not required to prove himself innocent. He is presumed
by the law to be innocent of this charge and this presumption remains with him
throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Voluntary Manslaughter, the State of West Virginia must
overcome the presumption that the Defendant, ______________________________
is innocent and prove to the satisfaction of the jury beyond a reasonable doubt
that:
1. the Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2____,
4. did feloniously, unlawfully and intentionally,
5. without premeditation, deliberation or malice,
6. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that
of the State and that of the Defendant) the jury and each member of the jury
is convinced beyond a reasonable doubt of the truth of the charge as to each
of these elements of Voluntary Manslaughter, you may find the Defendant _____________________________
guilty of Voluntary Manslaughter as charged. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Voluntary Manslaughter, you shall find the Defendant
______________________________ not guilty.
COMMENT
VOLUNTARY MANSLAUGHTER
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-2-4.
3. State v. Beegle, 188 W.Va. 681, 425 S.E.
2d 823 (1992); State v. Schafer, 170 W.Va. 649, 295 S.E. 2d 814 (1982);
State v. Kirtley, 162 W.Va. 249, 252 S.E. 2d 374 (1978); State v.
Wright, 162 W.Va. 332, 249 S.E. 2d 519 (1978); State v. Hamrick,
160 W.Va. 673, 236 S.E. 2d 247 (1977); State v. Blizzard, 152 W.Va. 810,
166 S.E. 2d 560 (1969); State v. Duvall, 152 W.Va. 162, 160 S.E. 2d 155
(1968); State ex rel. Combs v. Boles, 151 W.Va. 194, 151 S.E. 2d 115
(1966).
4. State v. Hatfield, 169 W.Va. 191, 199, 286
S.E. 2d 402, 408 (1982) Footnote No. 3 citing State v. Starkey, 161 W.Va.
517, 526-527, 244 S.E. 2d 219, 225 (1978) has an excellent discussion of voluntary
manslaughter, provocation and heat of passion.
5. State v. McGuire, 490 S.E. 2d 912 (W.Va.
1997) The elements of voluntary manslaughter are discussed.
VOLUNTARY MANSLAUGHTER
(including lesser offense)
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in this case is Voluntary
Manslaughter. One of three verdicts may be returned by you under the Indictment.
They are: (1) Guilty of Voluntary Manslaughter; (2) Guilty of Involuntary Manslaughter;
and (3) Not Guilty.
Voluntary Manslaughter is the felonious, unlawful and intentional taking of
another person's life but without premeditation, deliberation or malice.
Involuntary Manslaughter involves the accidental causing of death of another
person, although unintended, which death is the proximate result of negligence
so gross, wanton and culpable as to show a reckless disregard for human life.
The burden is on the State of West Virginia to prove the guilt of the Defendant
______________________________ beyond a reasonable doubt and the Defendant is
not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________ can be convicted of Voluntary
Manslaughter, the State of West Virginia must overcome the presumption that
the Defendant, ______________________________ is innocent and prove to the satisfaction
of the jury beyond a reasonable doubt that:
1. the Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2____,
4. did feloniously, unlawfully and intentionally,
5. without premeditation, deliberation or malice,
6. kill ______________________________.
If after impartially considering, weighing and comparing all the evidence,
(both that of the State and that of the Defendant) the jury and each member
of the jury is convinced beyond a reasonable doubt of the truth of the charge
as to each of these elements of Voluntary Manslaughter, you may find the Defendant
______________________________ guilty of Voluntary Manslaughter as charged.
If the jury and each member of the jury has a reasonable doubt of the truth
of the charge as to any one or more of these elements of Voluntary Manslaughter,
you shall find the Defendant ______________________________ not guilty of Voluntary
Manslaughter (and deliberate on the lesser included offense of Involuntary Manslaughter
as hereinafter instructed).
Before the Defendant ______________________________ can be convicted of Involuntary
Manslaughter, the State of West Virginia must overcome the presumption that
he is innocent and prove to the satisfaction of the jury beyond a reasonable
doubt that:
1. the Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2____,
4. did unintentionally,
5. cause the death of ______________________________
6. Which death was the proximate result of the negligence of the Defendant so
gross, wanton and culpable as to show a reckless disregard for human life.
If after impartially considering, weighing and comparing all the evidence,
(both that of the State and that of the Defendant) the jury and each member
of the jury is convinced beyond a reasonable doubt of the truth of the charge
as to each of these elements of Involuntary Manslaughter, you may find ______________________________
guilty of Involuntary Manslaughter as charged. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Involuntary Manslaughter, you shall find the Defendant
____________________________ not guilty.
.
COMMENT
VOLUNTARY MANSLAUGHTER
(including lesser offense)
W.Va. Code §61-2-1.
W.Va. Code §61-2-4.
State v. Beegle, 188 W.Va. 681, 425 S.E. 2d 823 (1992); State v. Schafer,
170 W.Va. 649, 295 S.E. 2d 814 (1982); State v. Kirtley, 162 W.Va. 249,
252 S.E. 2d 374 (1978); State v. Wright, 162 W.Va. 332, 249 S.E. 2d 519
(1978); State v. Hamrick, 160 W.Va. 673, 236 S.E. 2d 247 (1977); State
v. Blizzard, 152 W.Va. 810, 166 S.E. 2d 560 (1969); State v. Duvall,
152 W.Va. 162, 160 S.E. 2d 155 (1968); State ex rel. Combs v. Boles,
151 W.Va. 194, 151 S.E. 2d 115 (1966).
State v. Hatfield, 169 W.Va. 191, 199, 286 S.E. 2d 402, 408 (1982) Footnote
No. 3 citing State v. Starkey, 161 W.Va. 517, 526-527, 244 S.E. 2d 219,
225 (1978) has an excellent discussion of voluntary manslaughter, provocation
and heat of passion.
State v. McGuire 490 S.E. 2d 912 (W.Va. 1997) The elements of voluntary
manslaughter are discussed.
VOLUNTARY MANSLAUGHTER
(including lesser offense)
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Voluntary Manslaughter. One of three verdicts may be returned
by you under the Indictment. They are: (1) Guilty of Voluntary Manslaughter;
(2) Guilty of Involuntary Manslaughter; and (3) Not Guilty.
Voluntary Manslaughter is the felonious, unlawful and
intentional taking of another person's life but without premeditation, deliberation
or malice.
Involuntary Manslaughter involves the accidental causing
of death of another person, although unintended, which death is the proximate
result of negligence so gross, wanton and culpable as to show a reckless disregard
for human life.
The burden is on the State of West Virginia to prove
the guilt of the Defendant ______________________________ beyond a reasonable
doubt and the Defendant is not required to prove himself innocent. He is presumed
by the law to be innocent of this charge and this presumption remains with him
throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Voluntary Manslaughter, the State of West Virginia must
overcome the presumption that the Defendant, ______________________________
is innocent and prove to the satisfaction of the jury beyond a reasonable doubt
that:
1. the Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2____,
4. did feloniously, unlawfully and intentionally,
5. without premeditation, deliberation or malice,
6. kill ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Voluntary Manslaughter, you may
find the Defendant ______________________________ guilty of Voluntary Manslaughter
as charged. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Voluntary
Manslaughter, you shall find the Defendant ______________________________ not
guilty of Voluntary Manslaughter(and deliberate on the lesser included offense
of Involuntary Manslaughter as hereinafter instructed).
Before the Defendant ______________________________
can be convicted of Involuntary Manslaughter, the State of West Virginia must
overcome the presumption that he is innocent and prove to the satisfaction of
the jury beyond a reasonable doubt that:
1. the Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 2____,
4. did unintentionally,
5. cause the death of ______________________________
6. Which death was the proximate result of the negligence of the Defendant so
gross,
wanton and culpable as to show a reckless disregard for human life.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Involuntary Manslaughter, you
may find ______________________________ guilty of Involuntary Manslaughter as
charged. If the jury and each member of the jury has a reasonable doubt of the
truth of the charge as to any one or more of these elements of Involuntary Manslaughter,
you shall find the Defendant ____________________________ not guilty.
.
COMMENT
VOLUNTARY MANSLAUGHTER
(including lesser offense)
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-2-4.
3. State v. Beegle, 188 W.Va. 681, 425 S.E.
2d 823 (1992); State v. Schafer, 170 W.Va. 649, 295 S.E. 2d 814 (1982);
State v. Kirtley, 162 W.Va. 249, 252 S.E. 2d 374 (1978); State v.
Wright, 162 W.Va. 332, 249 S.E. 2d 519 (1978); State v. Hamrick,
160 W.Va. 673, 236 S.E. 2d 247 (1977); State v. Blizzard, 152 W.Va. 810,
166 S.E. 2d 560 (1969); State v. Duvall, 152 W.Va. 162, 160 S.E. 2d 155
(1968); State ex rel. Combs v. Boles, 151 W.Va. 194, 151 S.E. 2d 115
(1966).
4. State v. Hatfield, 169 W.Va. 191, 199, 286
S.E. 2d 402, 408 (1982) Footnote No. 3 citing State v. Starkey, 161 W.Va.
517, 526-527, 244 S.E. 2d 219, 225 (1978) has an excellent discussion of voluntary
manslaughter, provocation and heat of passion.
5. State v. McGuire 490 S.E. 2d 912 (W.Va. 1997)
The elements of voluntary manslaughter are discussed.
INVOLUNTARY MANSLAUGHTER
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in this case is Involuntary
Manslaughter. One of two verdicts may be returned by you under the Indictment.
They are: (1) Guilty of Involuntary Manslaughter and (2) Not Guilty.
Involuntary Manslaughter is the accidental causing of death of another person,
although unintended, which death is the proximate result of negligence so gross,
wanton and culpable as to show a reckless disregard for human life.
The burden is on the State of West Virginia to prove the guilt of the Defendant
______________________________ beyond a reasonable doubt and the Defendant is
not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________ can be convicted of Involuntary
Manslaughter, the State of West Virginia must overcome the presumption that
the Defendant, ______________________________ is innocent and prove to the satisfaction
of the jury beyond a reasonable doubt that:
1. the Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 199__,
4. did unintentionally,
5. but with reckless disregard for human life and the safety of others,
6. cause the death of ______________________________.
If after impartially considering, weighing and comparing all the evidence,
(both that of the State and that of the Defendant) the jury and each member
of the jury is convinced beyond a reasonable doubt of the truth of the charge
as to each of these elements of Involuntary Manslaughter, you may find ______________________________
guilty of Involuntary Manslaughter as charged. If the jury and each member of
the jury has a reasonable doubt of the truth of the charge as to any one or
more of these elements of Involuntary Manslaughter, you shall find the Defendant
______________________________ not guilty.
COMMENT
INVOLUNTARY MANSLAUGHTER
W.Va. Code §61-2-1.
W.Va. Code §61-2-5.
State v. Hose, 187 W.Va. 429, 419 S.E. 2d 690 (1992); State v. Cobb,
166 W.Va. 65, 272 S.E. 2d 467 (1980); State v. Vollmer, 163 W.Va. 711,
259 S.E. 2d 837 (1979); State v. Smith, 119 W.Va. 347, 193 S.E. 2d 573
(1937).
INVOLUNTARY MANSLAUGHTER
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Involuntary Manslaughter. One of two verdicts may be returned
by you under the Indictment. They are: (1) Guilty of Involuntary Manslaughter
and (2) Not Guilty.
Involuntary Manslaughter is the accidental causing of
death of another person, although unintended, which death is the proximate result
of negligence so gross, wanton and culpable as to show a reckless disregard
for human life.
The burden is on the State of West Virginia to prove
the guilt of the Defendant ______________________________ beyond a reasonable
doubt and the Defendant is not required to prove himself innocent. He is presumed
by the law to be innocent of this charge and this presumption remains with him
throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Involuntary Manslaughter, the State of West Virginia must
overcome the presumption that the Defendant, ______________________________
is innocent and prove to the satisfaction of the jury beyond a reasonable doubt
that:
1. the Defendant, ______________________________,
2. in _______________ County, West Virginia,
3. on or about the _____ day of _______________, 199__,
4. did unintentionally,
5. but with reckless disregard for human life and the
safety of others,
6. cause the death of ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Involuntary Manslaughter, you
may find ______________________________ guilty of Involuntary Manslaughter as
charged. If the jury and each member of the jury has a reasonable doubt of the
truth of the charge as to any one or more of these elements of Involuntary Manslaughter,
you shall find the Defendant ______________________________ not guilty.
COMMENT
INVOLUNTARY MANSLAUGHTER
1. W.Va. Code §61-2-1.
2. W.Va. Code §61-2-5.
3. State v. Hose, 187 W.Va. 429, 419 S.E. 2d
690 (1992); State v. Cobb, 166 W.Va. 65, 272 S.E. 2d 467 (1980); State
v. Vollmer, 163 W.Va. 711, 259 S.E. 2d 837 (1979); State v. Smith,
119 W.Va. 347, 193 S.E. 2d 573 (1937).
NEGLIGENT HOMICIDE
__________ INSTRUCTION NO. __________
The offense charged in Count _____ of the Indictment
in this case is Negligent Homicide. One of two verdicts may be returned by you
under this Count of the Indictment. They are: (1) guilty; and (2) not guilty.
Negligent Homicide is committed when any person while
driving a vehicle unintentionally kills another person as a proximate result
of (his) (her) negligence so gross, wanton and culpable as to show a reckless
disregard of the safety of others and which death occurs within one year of
the accident.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant, ______________________________
is not required to prove himself innocent. He is presumed by the law to be innocent
of this charge and this presumption remains with him throughout the entire trial.
Before the Defendant, ______________________________
can be convicted of Negligent Homicide, the State of West Virginia must overcome
the presumption that the Defendant, ______________________________ is innocent
and prove to the satisfaction of the jury beyond a reasonable doubt that:
1. The Defendant, ______________________________,
2. in _________________ County, West Virginia,
3. on or about the _____ day of _______________, 2_____
4. While driving a vehicle,
5. Unintentionally killed ______________________________,
6. as a proximate result of negligence so gross,
wanton and culpable as to show a reckless disregard of the safety of others,
and
7. Which death occurred within one year of the accident.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Negligent Homicide, you may find
______________________________ guilty of Negligent Homicide as charged in Count
_____ of the indictment. If the jury and each member of the jury has a reasonable
doubt of the truth of the charge as to any one or more of these elements of
Negligent Homicide, you shall find the Defendant ______________________________
not guilty.
COMMENT
NEGLIGENT HOMICIDE
1. W.Va. Code, §17C-5-1;
2. State v. Vollmer 163 W.Va. 136, 259 S.E.
2d 837 (1979)
3. State v. Bartlett 177 W.Va. 663, 355 S.E.
2d 913 (1987)
4. State v. Linkous 194 W.Va. 287, 460 S.E.
2d 288 (1995)
5. State v. Richeson 179 W.Va. 533, 370 S.E.
2d 728 (1988).