holding that maliciousness, the mens rea element of Virginia's aggravated-assault statute, may "be implied from conduct likely to cause death or great bodily harm, willfully or purposefully undertaken"
How later courts described this case
- holding that maliciousness, the mens rea element of Virginia's aggravated-assault statute, may "be implied from conduct likely to cause death or great bodily harm, willfully or purposefully undertaken"
- stating that where a blood alcohol test was not conducted in accordance with former Code § 18.2-268, the test results could be used as probative evidence of intoxication without a statutory presumption of intoxication
- holding that where a blood alcohol test was not conducted within the statutory framework, the test results could be used as probative evidence of intoxication without a statutory presumption of intoxication
- holding that malice exists when the defendant “wil[l]fully or purposefully, rather than negligently, embarked upon a course of wrongful conduct likely to cause death or great bodily harm”
Written by the judges who cited it.
The opinion
POFF, J.,
concurring in part and dissenting in part.
I support the majority’s conclusion that the testimony and records concerning the blood test were admissible in evidence in all the cases. I concur in the holding that the presumption instruction constituted prejudicial error in all the cases. And I agree that there must be a new trial of all counts charged in the indictment. I disagree, however, with the majority’s view of the law of criminal homicide.
Negligence resulting in an accidental death may be a tort or a crime, or both. The character of such negligence is the determinative factor. Ordinary negligence, i.e., the want of ordinary care as practiced by a reasonably prudent person, is actionable as a tort. Negligence so gross as to manifest depravity of mind and a callous disregard for human safety is criminal negligence, and if death results, constitutes criminal homicide. Unlike violations of some statutory rules of the road, the offense of driving under the influence of intoxicants constitutes criminal negligence. See King v. Commonwealth, 217 Va. 601, 606 , 231 S.E.2d 312, 316 (1977), citing Beck v. Commonwealth, 216 Va. 1 , 216 S.E.2d 8 (1975); Albert v. Commonwealth, 181 Va. 894, 902 , 27 S.E.2d 177, 180 (1943).
In Virginia, criminal homicide is divided into two major categories, murder and manslaughter. Malice is the element which distinguishes the two. Moxley v. Commonwealth, 195 Va. 151, 157 , *288 77 S.E.2d 389, 393 (1953). Malice may be either express or implied by conduct, Coleman v. Commonwealth, 184 Va. 197, 201 , 35 S.E.2d 96, 97 (1945), and “whether a defendant acted with malice is generally a question to be decided by the trier of fact,” Pugh v. Commonwealth, 223 Va. 663, 667 , 292 S.E.2d 339, 341 (1982).
The level of culpability of criminal negligence determines the grade of the offense. Between the class of deliberate deeds committed with premeditated intent to kill, which is the essence of murder of the first degree, and the type of negligence inherent in the definition of involuntary manslaughter there is a species of reckless behavior so willful and wanton, so heedless of foreseeable consequences, and so indifferent to the value of human life that it supplies the element of malice which distinguishes murder of the second degree from manslaughter. More than a century and a half ago, this court observed that a killing caused by “criminal carelessness” could constitute “murder in the second degree”. Whiteford v. Commonwealth, 27 Va. (6 Rand.) 721, 724-25 (1828).
While, as the majority notes, we have never, until now, had occasion to review a second-degree murder conviction based upon malice inferred from the negligent operation of a motor vehicle, we have commented upon the question in rather unmistakable language.
When men, while drunk or sober, drive automobiles along highways and through crowded streets recklessly, the killing of human beings is a natural and probable result to be anticipated. When a homicide follows as a consequence of such conduct, a criminal intent is imputed to the offender and he may be punished for his crime. The precise grade of such a homicide, whether murder or manslaughter, depends upon the facts of the particular case.
Goodman v. Commonwealth, 153 Va. 943, 952 , 151 S.E. 168, 171 (1930).
I acknowledge that the language in Goodman is dicta. But it is in harmony with the common law in most jurisdictions. The great weight of authority holds that a motorist’s negligence may be so gross and culpable as to imply a malicious intent to kill and that, in determining whether the homicide is manslaughter or murder, *289 intoxication is an aggravating factor. See Annot., 21 A.L.R.3d 116 (1968).
The vehicular homicide statutes adopted by some states abandon the definitional differences the common law makes between manslaughter and murder and define homicide resulting from the criminal negligence of the driver of a motor vehicle as a unique offense, graded according to the nature and extent of the driver’s negligence. See Traffic Laws Annotated § 11-903. See also Model Penal Code § 210.4, at 88. Virginia has no such statute, and as defined by the majority opinion, vehicular homicide is hereafter relegated to the lowest grade of criminal homicide. The degree of culpability is immaterial.
Reaffirming what we said in Whiteford and Goodman and adopting what appears to be the judicial consensus, I would hold that where the evidence is sufficient to show that the driver of a motor vehicle, whether drunk or sober, is guilty of criminal negligence which is the sole proximate cause of a homicide, such evidence raises a question of fact whether the offense is manslaughter or murder of the second degree. Unless the finding made by the trier of fact is plainly wrong or without evidence to support it, the finding should be upheld by this Court.
I am of opinion that the evidence of record in this case is fully sufficient to justify the jury’s finding that the defendant’s negligence was the sole proximate cause of three deaths and that such negligence was so willful and wanton, so heedless of foreseeable consequences, and so indifferent to the value of human life as to imply the element of malice charged in the homicide counts of the indictment.
THOMAS, J. joins in concurring and dissenting opinion.