Volume 44 Issue 3 Article 5 April 1938 Degrees of Murder and Manslaughter C. L. C. West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr Part of the Criminal Law Commons Recommended Citation C. L. C., Degrees of Murder and Manslaughter, 44 W. Va. L. Rev. (1938). Available at: https://researchrepository.wvu.edu/wvlr/vol44/iss3/5 This Student Note is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact [email protected]. C.: Degrees of Murder and Manslaughter West Virginia Law Quarterly and The Bar Published by the Faculty of the College of Law of West Virginia University, and issued in December, February, April and June of each academic year. 01nolal publication of The West Virginia Bar Association. Subscriptibn price to Individuals, not members of The West Virginia Bar As- soclation, $2.00 per year. To those who are members of the Association the prico Is $L00 per ylar and Is Included in their annual dues. Single copies, 50 cents. BOARD OF EDITORS Faculty of College of Law, ex offi'cio EDITOR IN CHARGE CL E L. COLSON BUSINESS MANAGER LouisE FARRELL HARTLEY ASSOCIATE STUDENT EDITORS FRANCES WEBER LOPINSKY, President ANDREW LANE BLAIR, Secretary EPH HmRy BROH JAMES GRANVILLE; MCCLURE COURTENAY LOGAN CARROLL C. A. PEAIRs, JR. VINCENT VERLANDO CHANEY JAMES POE ROBINSON ALBERT FRAwxiNK GOOD HOMER ALLEN WALKUP, JR. JAMES HENRY HEINZE HIRAM G. WILLIAMSON WILLIAM GuY WmsoN DEGREES OF MURDER AND MANSLAUGHTER In order to define the degrees of murder under the West Vir- ginia statute, it is necessary that the common law definition of murder be kept in mind. Murder at common law consists of two essential elements: First, the killing of a human being by another, without legal justification or excuse, or provocation reducing it to manslaughter; second, with malice aforethought.' The West Vir- ginia Code provides: "Murder by poison, lying in wait, imprisonment, starving, or any wilful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, rape, robbery or burglary, is murder of the first degree. All other murder is murder of the second degree." 2 1 State v. Gravely, 66 W. Va. 375, 66 S. E. 502 (1909), dissenting opinion of Judge Poffenbarger; State v. Abbott, 64 W. Va. 411, 62 S. E. 693 (1908); State v. Abbott, 8 W. Va. 741 (1875). Some authorities add another element, i.e., that the offender must be sane, but it is arguable that the element of malice presupposes sanity by implication. "Malice implies a mind under the sway of reason", State v. Galford, 87 W. Va. 358, 105 S. E. 237 (1920). 2W. VA. REV. CODE (Michie, 1937) c.61, art. 2, § 1. Disseminated by The Research Repository @ WVU, 1938 1 West Virginia Law Review, Vol. 44, Iss. 3 [1938], Art. 5 WEST VIRGINIA LAW QUARTERLY This statute, which was identical in language in the Code of 1868 and subsequent codes, does not affect the elements of com- mon law murder, at least in the respect that homicide which was murder at common law, still is murder under the statute. The statute merely divides murder into two classes, 3 murder of the first degree, and murder of the second degree. Malice, or malice prepense, or malice aforethought,4 is essential to both degrees of murder.5 The legal malice required is difficult to define. It appears in an attitude of reckless disregard of human life, in the commission of unlawful acts naturally tending to destroy life, done careless of the consequences.8 It is not confined 3 State v. Gravely, 66 W. Va. 375, 66 S. B. 502 (1909), dissenting opinion of Judge Poffenbarger; State v. Dodds, 54 W. Va. 289, 46 S. B. 228 (1903); State v. Abbott, 8 W. Va. 741 (1875). 4 See State v. Hamrick, 74 W. Va. 145, 81 S. E. 703 (1914) approving an instruction treating "malice" and "cmalice aforethought" as synonymous. 5 D is driving. His automobile strikes and kills X who is drunk and staggers into the road. D intentionally fails to stop. Second degree murder, rev'd; there is no evidence from which to imply malice. State v. Tharp, 116 W. Va. 256, 180 S.E. 97 (1935). D attempted to stop a fight in his place of business, is knocked down and threatened. Heshoots his assailant. Second degree, rev'd; error to instruct jury could find second degree murder when the evidence does not support a finding of malice. State v. Cassim, 112 W. Va. 92, 163 S. B. 769 (1932). X, intoxicated, attacks members of D's family, flourishes pistol and threat- ens to shoot. D shoots X. Second degree, rev'd. There is no evidence to sup- port a finding of malice. State v. Thornhill, 111 W. Va. 258, 161 S. E. 431 (1931). Without prior altercation, X1 hits D on head with a poker and ejects D from the house. D, angered, shoots and kills X. Second degree, rev'd; the evidence does not support a finding of malice. State v. Frye, 98 W. Va. 504, 127 S. B. 332 (1925). X assaults members of D's family and threatens D. D stabs X with a paring knife. Second degree, rev'd. The evidence is insufficient to show malice. State v. Hurst, 93 W. Va. 222, 116 S. E. 248 (1923). X enters D's place of business and becomes abusive. D declines combat. X threatens D and follows him into adjoining room. D shoots X. Voluntary manslaughter, rev'd. Improper to instruct jury it could find malice. Rev 'd also for other reasons. State v. Laura, 93 W. Va. 250, 116 S. E. 251 (1923). X strikes D, a policeman, in the face. D, who was not at fault, then im- mediately shoots X. Second degree, rev'd; evidence does not support a finding of malice. State v. Galford, 87 W. Va. 358, 105 S. E. 237 (1920). And see State v. Long, 88 W. Va. 669, 108 S. E. 279 (1921); State v. Arrington, 88 W. Va. 152, 106 S. E. 445 (1921) ; State v. Weisengoff, 85 W. Va. 271, 101 S. E. 450 (1919); State v. Panetta, 85 W. Va. 212, 101 S. E. 360 (1919) ; State v. Snider, 81 W. Va. 522, 94 S. E. 981 (1918) ; State v. Michael, 74 W. Va. 613, 82 S. E. 611 (1914) ; State v. Abbott, 8 W. Va. 741 (1875). 6 D fires a gun into a crowd intentionally and recklessly and kills a bystander. First degree, aff'd. State v. Saunders, 108 W. Va. 148, 150 S. E. 519 (1929). D beats X unconscious to rob him and leaves X lying in highway where he is run over by an automobile and killed. Second degree aff'd. State v. Caldwell, 108 W. Va. 330, 150 S. E. 754 (1929).. D's car is halted by officers. D fires at them, killing X, and drives on. Sec- https://researchrepository.wvu.edu/wvlr/vol44/iss3/5 2 C.: Degrees of Murder and Manslaughter STUDENT NOTES to ill will toward the deceased, but is intended to denote "an action flowing from a corrupt motive, a thing done mado animo, where the fact has been attended with such circumstances as carry in them the plain implications of a heart regardless of social duty and fatally bent on mischief." '7 This language, found, with minor variations, in nearly every attempt to define malice is not very specific. Possibly there is no satisfactory definition of malice as an abstraction. It is a term used to denote certain states of mind, and to define malice in the abstract is like an attempt to define a definition. One of the states of mind it describes is that in which an unlawful act, naturally tending to produce death or great bodily harm to another, is committed recdessly and wilfully, and death ensues from it." The statute itself would seem to recognize as one of these states of mind that specific intent which is an element of the crime of arson, or of rape, robbery, or burglary. Malice may be either express or implied. But the usefulness of the distinction is open to question under the present law. Ex- press malice also is implied, but it is an implication which may be drawn from deliberate conduct, or purposeful acts, denoting a formed design,10 that is, an implication of fact, arising from ex- ternal manifestations which support a probability that a certain intent existed. Implied malice is the result of an implication of ond. degree, aff'd. State v. MeMillon, 104 W. Va. 1, 138 S. E. 732 (1927). X, a known officer, mounts D's slowly moving car to stop and arrest D. D increases the speed and collides with a bridge, killing X. If the collision is intentional while the car is moving at a high speed, the homicide is murder; if accidental, involuntary manslaughter. Dictum in State v. Weisengoff, 85 W. Va. 271, 101 S. E. 450 (1919). And see State v. DeBoard, 194 S. E. 349 (W. Va. 1937); State v. Bowles, 117 W. Va. 217, 185 S. E. 205 (1936), verdicts of second degree murder aff'd. 7State v. Douglass, 28 W. Va. 297, 299 (1886) quoting 1 EAST, PLEAS OF Tmn CRowN (1803) 214-215. And see dissenting opinion of Judge Poffen- barger in State v.