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Current Jury Instruction (Voluntary Manslaughter): Voluntary Manslaughter is the felonious, unlawful and intentional taking of another person's life but without premeditation, deliberation or malice. [Unlawful Killing] Current Jury Instruction (Provocation): The Court instructs the jury that reasonable provocation means those certain acts committed against the defendant which would cause a reasonable man to kill. Inherent in this concept is the further requirement that the provocation be such that it would cause a reasonable person to lose control of himself and act out of the heat of passion, and that he did in fact do so. [Provocation]
A defendant acts with adequate provocation when the acts committed against the defendant by the victim would cause a reasonable person to kill. For the provocation to be adequate, you must find that the victim’s acts were of a kind and were sufficient to:
A defendant acts out of the heat of passion when there is:
Commentary 1. W.Va. Code §61-2-4 on voluntary manslaughter provides as follows: "Voluntary manslaughter shall be punished by a definite term of imprisonment in the penitentiary which is not less than three nor more than fifteen years. A person imprisoned pursuant to the provisions of this section is not eligible for parole prior to having served a minimum of three years of his or her sentence or the minimum period required by the provisions of §62-12-13, whichever is greater." 2. There is no statutory definition of voluntary manslaughter in West Virginia. The essential elements of voluntary manslaughter can be found only in the common law cases. 3. One of the most important elements in the jury instruction is the element of "intent" to kill. The intent element of volunary manslaughter has been discussed in numerous Court opinions. In State v. Duvall, 160 S.E.2d 155 (W. Va. 1968), the defendant’s voluntary manslaughter conviction was reversed because “the definition set forth in the instruction omitted the essential element of voluntary manslaughter of the intent to kill by the defendant and the instruction, for that reason, was erroneous and prejudicial to the defendant.” The same problem arose in State v. Foley, 47 S.E.2d 40 (W. Va. 1948), when there was an objection to the charge that in the definition of voluntary manslaughter the words “intentional” or some equivalent word or expression was omitted. The Court noted that it was “clear that the crime of voluntary manslaughter necessarily involves the element of intent to kill.” See also, State v. Wright, 249 S.E. 2d 519 (W. Va. 1978). 4. The law, in allowing the mitigation of murder to manslaughter when there is a finding of provocation on the part of the victim, is doing nothing more than recognizing that while no one deserves to be killed, some deserve less punishment, and seem to be less culpable when then kill than do others. The law recognizes the need for lesser punishment for killing when the victim has played some significant part in arousing the defendant’s emotions and passions that he, or she, could be expected to exercise, and did not exercise the deliberative decision-making expected of a reasonable person. The failure to exercise good deliberative judgment by the defendant is directly related to the acts of the victim. 4. The oddity in voluntary manslaughter is that while it turns on the presence of gross provocation and the defendant's acting in a heat of passion, provocation and heat of passing are not elements of the offense, which the prosecution is required to prove. See State v. McGuire, 490 S.E.2d 912 (1997). In the proposed revised jury instruction, voluntary manslaughter is described as it is defined by the court. The provocation feature of voluntary manslaughter is included in the instruction, even though provocation need not be proven as an element of the crime by the prosecution. Nevertheless, we have included provocation in the jury instruction because the defendant must produce evidence of provocation or order to secure a voluntary manslaughter instruction. 5. In requiring that the killing be “unlawful," the jury is being instructed that the killing can be neither justified nor excused. For example, if the word “unlawful” were not included in the jury instruction, a police officer who shot a criminal in the line-of-duty could potentially meet the first three requirements listed above. 6. Adequate provocation is evidence by something that would cause a reasonable person to act without self-control and lose the presence of mind to act in a deliberate fashion. The usual expression for this loss of self-control is to act in a heat of passion. See generally, Black’s Law Dictionary (8th ed. 2004). 7. Manslaughter often grows out of personal quarrels and physical altercations, but it is not confined to these cases. Any unlawful and intentional killing, when the passion of the defendant is suddenly aroused upon provocation, may be voluntary manslaughter. 8. Provocation is not a defense to murder, but is evidence of the absence of malice, which means, by definition, that the defendant can be convicted of no greater crime than voluntary manslaughter. Provocation may define voluntary manslaugther, but is not an element of the crime. Consequently, this instruction is to be given to the jury only in those cases in which the defendant has presented evidence showing that provocation was present. In State v. Ashcraft, 309 S.E.2d 600 (W. Va. 1983) the court upheld a trial court's refusal to give a jury instruction on voluntary manslaughter because on the clear the evidence indicated that the victim was shot between the eyes at close range while wounded and lying on the ground after he had been disarmed; therefore, provocation was clearly absent. Proponents of the revised proposed jury instruction will want to take note of the anomolous statements in State v. McGuire, 490 S.E.2d 912 (W. Va. 1997) to the effec that while either passion or provocation explains why a killing is not murder, neither is a necessary element of voluntary manslaughter. 9. The term provocation, as it is used to reduce murder to voluntary manslaughter, consists of certain types of acts committed against the defendant that would cause a reasonable man to kill. State v. Starkey, 244 S.E.2d 219 (W. Va. 1978). 11. The response to the provocation by the victim must have occurred while the defendant was affected by the passion or emotion. If there is a "cooling-off" period, a time sufficient for the defendant to regain control, then the provocation at the time of the killing will be deemed inadequate. A conviction of murder (either first or second degree) should be set aside if there was not sufficient time for the defendant to “cool down” and regain control before responding to the provocation. State v. Galford, 105 S.E. 237 (W. Va. 1920). Where the evidence discloses that no time intervened between the provocation and the act of killing, within which passion could have subsided and reason regained its dominion, then a conviction of murder in the second degree should be set aside. State v. Clifford, 52 S.E. 981 (W. Va. 1906). 12. A fight or physical altercation often begins with the exchange of words and taunts, sometimes called "fighting words." Words alone are not enough to establish adequate provocation to kill. It is well established that no provocation arising from mere words, however, violent or insulting, should reduce a homicide to voluntary manslaughter. State v. Murphy, 109 S.E. 771 (W. Va. 1921). In contrast to words alone, words accompanied by a blow or blows may be deemed adequate provocation. State v. Gravely, 66 S.E. 503 (W. Va. 1909). Relevant Cases: 1. One who intends to kill another, but does so only after a gross provocation, and acts in a heat of passion is guilty of no more than voluntary manslaughter. See State v. Clifford, 52 S.E. 981 (1906). 2. Voluntary manslaughter requires an intent to kill. See State v. Hamrick, 236 S.E.2d 247 (W. Va. 1977). If a jury instruction for voluntary manslaughter fails to include the intent to kill element, then it is erroneous and prejudicial to the defendant. State v. Duvall, 160 S.E.2d 155 (W. Va. 1968). The Court has, for example, found the evidence insufficient to uphold a conviction of voluntary manslaughter where the defendant struck the victim with his hand, causing the victim to fall to the ground, whereupon the victim fell backwards and hit her head on a hard object and died. State v. Barker, 38 S.E.2d 346 (W. Va. 1946). The Court has also found there was insufficient evidence on intent to kill where the evidence showed that the defendant picked up his infant son, “began to shake him real hard and squeeze him to make him stop crying,” and after the defendant’s wife yelled at him to stop, the defendant “put him down in a chair real hard” and two days later the child died from a subdural hematoma. State v. Wright, 249 S.E.2d 519 (W. Va. 1978). 3. In voluntary manslaughter cases,the intent to kill can be inferred from the defendant's use of a deadly weapon. State v. Foley, 47 S.E 2d 40 (W. Va. 1948).
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West Virginia Homicide Jury Instructions Project