 Involuntary Manslaughter
Current Jury Instruction: 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. [Unlawful Killing]
Revised Jury Instruction: The defendant is guilty of involuntary manslaughter if:
1) the defendant,
2) while engaged in an unlawful act,
3) unintentionally
4) caused the death of another
5) with reckless disregard for human life and the safety of others.
[or]
The defendant is guilty of involuntary manslaughter if:
1) the defendant,
2) while engaged in a lawful act,
3) unintentionally, and
4)
unlawfully,
5) caused the death of another,
6) with reckless disregard for human life and the safety of others.
Involuntary manslaughter does not require the death to be caused by an intentional, deliberate, premeditated, or malicious act.
Reckless disregard is something more than ordinary or simple negligence. It is negligence that consciously ignores the safety of others.
The defendant’s negligence must have caused the death.
Commentary
1. The majority of states do not have a separate instruction for involuntary manslaughter. These states generally have reckless manslaughter, negligent homicide (which includes vehicular homicide), or simply manslaughter, which is more akin to West Virginia’s voluntary manslaughter.
2. West Virginia has three categories of manslaughter, all of which are lesser included offenses of murder: voluntary manslaughter, involuntary manslaughter, and negligent homicide. There is no statutory definition of involuntary manslaughter in West Virginia. Negligent homicide is defined in West Virginia Code § 17C-5-1(a). Negligent homicide is limited to cases involving death that incurs while using a vehicle. West Virginia, by case decision, allows involuntary manslaughter as an alternative to negligent homicide; the prosecutor has the discretion to choose the charge.
3. The current West Virginia instruction on involuntary manslaughter provides two alternative instructions, with similar, yet different, language:
#1 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.
#2 Before the Defendant can be convicted of Involuntary Manslaughter, the State 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 _______________, 200_,
4) did unintentionally,
5) but with reckless disregard for human life and the safety of others,
6) cause the death of ______________________________.
Following this instruction, the citations given are as follows: 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). The cases do not, however, suggest an appropriate language for a jury instruction.
There is, however, an important quote within Hose and Cobb, which the Court repeatedly has referenced: “The offense of involuntary manslaughter is committed when a person, while engaged in an unlawful act, unintentionally causes the death of another, or where a person engaged in a lawful act, unlawfully causes the death of another.” State v. Barker, 128 W. Va. 744, 38 S.E.2d 346 (1946). Even with the ambiguity of this language, it is still clearer than the current instruction. Because of this, this Barker language was included in the proposed revised instruction.
4. In State v. Vollmer, 163 W. Va. 711, 259 S.E.2d 837 (1979), the Court relied upon a Virginia case in locating the currently used language--“negligence so gross, wanton and culpable.” This language is minimally discussed in Vollmer.
5. In revising the West Virginia instruction, we find particularly notable, the jury instructions in the following jurisdictions:
California
When a person commits an unlawful killing, but does not intend to kill, and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.
The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk.
An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder.
In Florida, a jury may be instructed that the killing of a human being is excusable, and therefore lawful, under various circumstances, including: "When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent."
In Idaho, an involuntary Manslaughter occurs when:
1) The defendant's conduct was such that an ordinary person would anticipate that death might occur under the circumstances,
2) The defendant's conduct, although ordinarily lawful, was committed in an unlawful manner, or was committed with reckless disregard of consequences and of the rights of others, and
3) The defendant's conduct produced the death of [_________________]
In New Jersey:
A person is guilty of reckless manslaughter if [he][she] recklessly causes the death of another person.
A person who causes another's death does so recklessly when he/she is aware of and consciously disregards a substantial and unjustifiable risk that death will result from his/her conduct.
The risk must be of such a nature and degree that, considering the nature and purpose of defendant's conduct and the circumstances known to defendant, [his][her] disregard of that risk is a gross deviation from the standard of conduct that a reasonable person would follow in the same situation.
North Dakota
Negligent homicide occurs when the defendant:
1) Caused the death of a human being; and
2) Engaged in the conduct, which caused the death in unreasonable disregard of the substantial likelihood of the existence of relevant facts or risks, a disregard involving a gross deviation from acceptable standards of conduct.
Oklahoma
No person may be convicted of negligent homicide unless the State proves beyond a reasonable doubt each element of the crime. These elements are:
1) The death of a human;
2) Caused by the defendant's driving a vehicle upon a highway;
3) In reckless disregard of the safety of others;
4) The death occurred within a year of the infliction of the injury causing death.
5) [The defendant was 16 years of age or older].
Tennessee
The crime of criminally negligent homicide has the following essential elements:
1) the defendant's conduct resulted in the death of the alleged victim; and,
2) the defendant acted with criminal negligence.
A person acts with criminal negligence when the person ought to be aware of a substantial and unjustifiable risk that the alleged victim will be killed. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person’s standpoint.
The requirement of criminal negligence is also established if it is shown that the defendant acted intentionally, knowingly or recklessly.
Relevant Cases: State v. McGuire, 200 W. Va. 823, 490 S.E.2d 912 (1997); State v. Davis, 205 W. Va. 569, 519 S.E.2d 852 (1999); State v. Storey, 182 W. Va. 328, 387 S.E.2d 563 (1989); State v. Brown, 179 W. Va. 681, 371 S.E.2d 609 (1988); State v. Evans, 172 W. Va. 810, 310 S.E.2d 877 (1983); State v. Cobb, 166 W. Va. 65, 272 S.E.2d 467 (1980); State v. Comstock, 137 W. Va. 152, 70 S.E.2d 648 (1952); State v. Craig, 131 W. Va. 714; 51 S.E.2d 283 (1948); State v. Boggs, 129 W. Va. 603, 42 S.E.2d 1 (1946); State v. Barker, 128 W. Va. 744, 38 S.E.2d 346 (1946); State v. Lawson, 128 W. Va. 136, 36 S.E.2d 26 (1945); State v. Corley, 116 W. Va. 630, 182 S.E. 794 (1935)
1. The offense of involuntary manslaughter is committed when a person, while engaged in an unlawful act, unintentionally causes the death of another, or where a person engaged in a lawful act, unlawfully causes the death of another. State v. Hose, 187 W. Va. 429, 419 S.E.2d 690 (1992)(quoting State v. Barker, 128 W. Va. 744, 38 S.E.2d 346 (1946)
A person may be guilty of involuntary manslaughter when he performs a lawful act in an unlawful manner, resulting in the unintentional death of another. State v. Cobb, 166 W. Va. 65, 272 S.E.2d 467 (1980)(quoting State v. Lawson, 128 W. Va. 136, 36 S.E.2d 26 (1945)
The unlawful, not the negligent, character of the act, is the important and determinative factor in the perpetration of the crime. If, however, the act of a person which causes the unintentional death of another person is lawful, it must be committed in an unlawful as distinguished from a merely negligent manner to constitute the offense. State v. Craig, 131 W. Va. 714; 51 S.E.2d 283 (1948)
2. Something more than ordinary negligence is required to sustain an involuntary manslaughter conviction. State v. Hose, 187 W. Va. 429, 419 S.E.2d 690 (1992)(citing State v. Lawson, 128 W. Va. 136, 36 S.E.2d 26 (1945)
3. "An involuntary manslaughter charge arising from a death resulting from the operation of a motor vehicle requires something more than an act of ordinary negligence or the violation of a motor vehicle statute to sustain the conviction. State v. Vollmer, 163 W. Va. 711, 259 S.E.2d 837 (1979) 4.An indictment for involuntary manslaughter need not charge that the homicide was committed feloniously. State v. Smith, 119 W. Va. 347, 193 S.E.2d 573 (1937)
5. The defendant's intent is not an element of the crime of involuntary manslaughter. State v. Davis, 205 W. Va. 569, 519 S.E. 2d 852 (1999)(quoting State v. Comstock, 137 W. Va. 152, 70 S.E.2d 648 (1952)
Involuntary manslaughter does not require the death to be caused by an intentional, felonious, deliberate, premeditated, or malicious act. State v. McGuire, 200 W. Va. 823, 490 S.E.2d 912 (1997)
Involuntary manslaughter may be committed as the accidental or unintended death of another. State v. Brown, 179 W. Va. 681, 371 S.E.2d 609 (1988)
The State is required to show that the act, or the manner of the performance of the act, for which conviction of involuntary manslaughter is sought is unlawful and culpable and something more than the simple negligence, so common in everyday life, in which there is no claim that anyone has been guilty of wrong-doing. State v. Evans, 172 W. Va. 810, 310 S.E.2d 877 (1983)(quoting State v. Lawson, 128 W. Va. 136, 36 S.E.2d 26 (1945)
6. The wantonly negligent performance of a lawful act may result in involuntary manslaughter. Either the nature of the act itself, or its manner of performance may give rise to the offense. State v. Corley, 116 W. Va. 630, 182 S.E. 794 (1935)
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