West Virginia
As a general rule, West Virginia is a "stand your ground" state and a partial Castle Doctrine state. A completely innocent victim has no "duty to retreat."
When one without fault himself is attacked by another in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some great bodily harm, and there is reasonable grounds for believing the danger imminent, that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe, such danger is imminent, he may act upon such appearances and without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out, that the appearances were false, and that there was in fact neither design to do him some serious injury nor danger, that it would be done. But of all this the jury must judge from all the evidence and circumstances of the case.
Syllabus Point 7,
State v. Cain, 20 W.Va. 679 (1882) (this is the bedrock rule of deadly force in self-defense that our Supreme Court of Appeals generally cites in every case to this day).
One without fault, assaulted by another in a public road, where he has the right to be, is not bound to retreat, but may lawfully stand upon his rights and repel the assault and if necessary to protect his own life or save himself from great bodily harm, may even take the life of his assailant.
Syllabus Point 4,
State v. Donahue, 79 W.Va. 260, 90 S.E. 834 (1916).
One who has been attacked, or is threatened with a murderous attack, which he has reason to believe will be made, may arm himself for defense, and in such case no inference of malice can be drawn therefrom; and in a prosecution for homicide, where self-defense is relied upon, and there is evidence showing, or tending to show, that the defendant had been attacked by the deceased just prior to the homicide, and that threats of violence had also been made against him just prior thereto, an instruction telling the jury that no inference of malice should be drawn from the fact that the defendant was armed upon the occasion of the homicide, in case they find he had reasonable ground to believe that a murderous attack would likely be made upon him, should be given.
Syllabus Point 3,
State v. Hardin, 91 W.Va. 149, 112 S.E. 401 (1922).
In defending himself, his family or his property from the assault of an intruder, one is not limited to his immediate home or castle; his right to stand his ground in defense thereof without retreating extends to his place of business also and where it is necessary he may take the life of his assailant or intruder.
Syllabus Point 7,
State v. Laura, 93 W.Va. 250, 116 S.E. 251 (1923).
Self-defense as a justification for homicide is not necessarily based upon actual necessity; if the circumstances were such as to cause a reasonably prudent person to believe, and if the accused did believe, that the killing was necessary then, the other elements thereof being present, the defense is valid.
Syllabus Point 3,
State v. Preece, 116 W.Va. 176, 179 S.E. 524 (1935).
A man attacked in his own home by an intruder may invoke the law of self-defense without retreating.
Syllabus Point 4,
State v. Preece, 116 W.Va. 176, 179 S.E. 524 (1935).
Where, in a trial for murder, there is competent evidence tending to show that the accused believed, and had reasonable grounds to believe, that he was in danger of losing his life or suffering great bodily harm at the hands of several assailants acting together, he may defend against any or all of said assailants, and it is reversible error for the trial court to refuse to instruct the jury to that effect.
Syllabus Point 4,
State v. Foley, 128 W.Va. 166, 35 S.E.2d 854 (1945).
The occupant of a dwelling is not limited in using deadly force against an unlawful intruder to the situation where the occupant is threatened with serious bodily injury or death, but he may use deadly force if the unlawful intruder threatens imminent physical violence or the commission of a felony and the occupant reasonably believes deadly force is necessary.
Syllabus Point 2,
State v. W. J. B., 166 W.Va. 602, 276 S.E.2d 550 (1981) (West Virginia's "Castle Doctrine" case, although it did not go all the way and did not have to given the facts of the case).
The reasonableness of the occupant's belief and actions in using deadly force must be judged in the light of the circumstances in which he acted at the time and is not measured by subsequently developed facts.
Syllabus Point 3,
State v. W. J. B., 166 W.Va. 602, 276 S.E.2d 550 (1981).
The amount of force that can be used in self-defense is that normally one can return deadly force only if he reasonably believes that the assailant is about to inflict death or serious bodily harm; otherwise, where he is threatened only with non-deadly force, he may use only non-deadly force in return.
Syllabus Point 1,
State v. Baker, 177 W.Va. 769, 356 S.E.2d 862 (1987) (case involved nonlethal threat).
Once there is sufficient evidence to create a reasonable doubt that the killing resulted from the defendant acting in self-defense, the prosecution must prove beyond a reasonable doubt that the defendant did not act in self-defense.
Syllabus Point 2,
State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978).
Once the defendant meets his initial burden of producing some evidence of self-defense, the State is required to disprove the defense of self-defense beyond a reasonable doubt.
Syllabus Point 6,
State v. McKinney, 178 W.Va. 200, 358 S.E.2d 596 (1987).
To establish the doctrine of defense of another in a homicide prosecution, a defendant must show by sufficient evidence that he or she used reasonable force in a situation where the defendant had a reasonable belief of the lawfulness of his or her intervention on behalf of another person who was in imminent danger of death or serious bodily harm from which such person could save himself/herself only by using force, including deadly force, against his or her assailant, but was unable to do so.
Syllabus Point 3,
State v. Cook, 204 W.Va. 591, 515 S.E.2d 127 (1999) (defense of others).
The burden of proof placed upon a defendant asserting the doctrine of defense of another is not a high standard. To properly assert the defense of another doctrine, a defendant must introduce “sufficient” evidence of the defense in order to shift the burden to the State to prove beyond a reasonable doubt that the defendant did not act in defense of another.
Syllabus Point 4,
State v. Cook, 204 W.Va. 591, 515 S.E.2d 127 (1999).
It is erroneous in a first degree murder case to instruct the jury that if the defendant killed the deceased with the use of a deadly weapon, then intent, malice, willfulness, deliberation, and premeditation may be inferred from that fact, where there is evidence that the defendant's actions were based on some legal excuse, justification, or provocation. To the extent that the instruction in State v. Louk, 171 W.Va. 639, 643, 301 S.E.2d 596, 600 (1983), is contrary to these principles, it is disapproved.
Syllabus Point 6,
State v. Jenkins, 191 W.Va. 87, 443 S.E.2d 244 (1994).
Where a defendant has asserted a plea of self-defense, evidence showing that the decedent had previously abused or threatened the life of the defendant is relevant evidence of the defendant's state of mind at the time deadly force was used. In determining whether the circumstances formed a reasonable basis for the defendant to believe that he or she was at imminent risk of serious bodily injury or death at the hands of the decedent, the inquiry is two-fold. First, the defendant's belief must be subjectively reasonable, which is to say that the defendant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the defendant's belief must be objectively reasonable when considering all of the circumstances surrounding the defendant's use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our holding in Syllabus Point 6 of State v. McMillion, 104 W.Va. 1, 138 S.E. 732 (1927), is expressly overruled.
Syllabus Point 3,
State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009).
Where it is determined that the defendant's actions were not reasonably made in self-defense, evidence that the decedent had abused or threatened the life of the defendant is nonetheless relevant and may negate or tend to negate a necessary element of the offense(s) charged, such as malice or intent.
Syllabus Point 4,
State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009).
An occupant who is, without provocation, attacked in his or her home, dwelling or place of temporary abode, by a co-occupant who also has a lawful right to be upon the premises, may invoke the law of self-defense and in such circumstances use deadly force, without retreating, where the occupant reasonably believes, and does believe, that he or she is at imminent risk of death or serious bodily injury. In determining whether the circumstances formed a reasonable basis for the occupant to believe that he or she was at imminent risk of death or serious bodily injury at the hands of the co-occupant, the inquiry is two-fold. First, the occupant's belief must be subjectively reasonable, which is to say that the occupant actually believed, based upon all the circumstances perceived by him or her at the time deadly force was used, that such force was necessary to prevent death or serious bodily injury. Second, the occupant's belief must be objectively reasonable when considering all of the circumstances surrounding the occupant's use of deadly force, which is to say that another person, similarly situated, could have reasonably formed the same belief. Our decision in Syllabus Point 2, State v. Crawford, 66 W.Va. 114, 66 S.E. 110 (1909), is expressly overruled.
Syllabus Point 5,
State v. Harden, 223 W.Va. 796, 679 S.E.2d 628 (2009).
However, self-defense has a few basic limits:
Person in no imminent danger from minatory foe may not purposely confront him and then invoke self-defense for immediate homicide.
Syllabus Point 1, State v. Curry, 112 W.Va. 549, 165 S.E. 810 (1932).
One in no imminent danger from a minatory foe may not purposely confront him and then invoke self-defense for an immediate homicide.
Syllabus Point 3,
State v. Curry, 112 W.Va. 549, 165 S.E. 810 (1932).
[W]hen there is a quarrel between two or more persons and both or all are in fault, and a combat as a result of such quarrel takes place and death ensues as a result; in order to reduce the offense to killing in self-defense, two things must appear from the evidence and circumstances in the case: first, that before the mortal shot was fired the person firing the shot declined further combat, and retreated as far as he could with safety; second, that he necessarily killed the deceased in order to preserve his own life or to protect himself from great bodily harm . . . .
Syllabus Point 6, in part,
State v. Foley, 131 W.Va. 326, 47 S.E.2d 40 (1948).