Created by FindLaw's team of legal writers and editors | Last reviewed June 20, 2016
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Like many other states, the Mountain State divides the crime of homicide into two degrees, or levels. The crime of first-degree murder covers premeditated homicides or the most violent and repugnant killings, while the crime of manslaughter covers accidental killings. In between is second-degree murder.
In West Virginia, second degree murder is classified as all murders that do not fall under first-degree murder. Although not specifically indicated in West Virginia's murder statutes, second-degree murder is generally understood to mean murder with a mitigating circumstance which reduces the crime from first-degree to second-degree murder.
First-degree murder consists of willful, deliberate, and premeditated killings including those caused by poison, starvation, or imprisonment. A first-degree murder is reduced to second-degree murder when there is a mitigating circumstance or excuse. A common excuse is that the person was acting under great provocation while in the heat of passion. A commonly used example of this excuse is when a man goes home from work to find his wife in bed with another man. In that instant, while enraged, the man pulls out a gun and kills them both.
Although the crime of second-degree murder is less serious than first-degree murder, the crime still has stiff penalties, including potential imprisonment for up to 40 years. The following is a quick summary of West Virginia's second-degree murder law.
The following table outlines West Virginia's second-degree murder laws.
| Code Sections | W. VA. CODE §§ 61-2-1 and 61-2-3 |
| What’s Prohibited? | First-degree murder is a willful, deliberate, and premeditated killing of another person. Second-degree murder consists of all other murders which do not fall under first-degree murder. Although it is not specifically indicated in West Virginia's murder statutes, the crime of first-degree murder is generally reduced to second-degree murder when a mitigating circumstance exists such that the person was acting under heat of passion. |
| Penalties | Second-degree murder is a felony punishable by up to 40 years in prison. |
| Defenses | It is a defense to murder if the person was acting with lawful authority or could not establish sufficient intent for the killing. For example, a person who is mentally retarded or involuntarily intoxicated by drugs or alcohol may not have the requisite intent for murder. |
Murder is a serious crime with severe penalties. If you or someone you know has been charged with murder, you may want to contact an experienced West Virginia criminal defense attorney for assistance. You may also want to read Findlaw's sections on Second Degree Murder Overview, Second Degree Murder Defenses, and Second Degree Murder Penalties and Sentencing for more articles and information on this topic.
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