At common law, criminal homicides typically (but not universally)fell into four categories which are sometimes simply codified by an individual state:
1 first degree murder - distinctive feature is premeditation, best example, murder for hire.
2. second degree murder - intentional killing with malice; no mitigating circumstances but also no premeditation. Example, killing as part of another crime like robbery where initial plan was just to get money.
3. voluntary manslaughter - kill in the course of a bar room brawl, intent, but mitigating circumstance where there was provocation, i.e., he called your mother a whore
4. involuntary manslaughter - negligent homicide with no intent to kill, i.e., drunk driving or, in the firearm context, shooting into an area without checking background.
At best this sounds like involuntary, trying to merely hit the guy but unintentionally shooting him. But that would be grossly negligent with a firearm as the tool. The facts may even support a voluntary manslaughter, intent to kill but mitigating fact in anger over assault on wife.
Self defense from further assault seems unlikely given shot in back, based on evidence available here. It would have to be predicated on a belief that the guy unless stopped would be a threat to another, the wife, presumably located in the direction the dead guy was running.
The following is a longish extract from a W. Va. case on the history of DEFENSE OF ANOTHER. Hope it is not too long, but it may be helpful in a truly difficult fact situation such as this one.
INSERT
A. History of the Defense of Another Doctrine
The basic premise underlying the doctrine of defense of another (also called defense of others) is that a person is justified in using force to protect a third party from unlawful force by an aggressor. The defense of another doctrine closely parallels the common law doctrine of self-defense. See Adkins v. Commonwealth, 293 Ky. 329, 168 S.W.2d 1008 (1943); Commonwealth v. Martin, 369 Mass. 640, 341 N.E.2d 885 (1976).
In State v. Saunders, 175 W.Va. 16, 19, 330 S.E.2d 674, 677 (1985), we pointed out that "[t]he right to defense of another usually falls under the rubric of self-defense. One simply steps into the shoes of the victim and is able to do only as much as the victim himself would lawfully be permitted to do." The broad parameters of the defense of another doctrine were articulated by this Court over one hundred years ago in the case of State v. Greer, 22 W.Va. 800, 819 (1883), wherein we held that the right of defense of another may be exercised in defense of a family member:
What one may lawfully do in defense of himself--when threatened with death or great bodily harm, he may do in behalf of a brother; but if the brother was in fault in provoking an assault, that brother must retreat as far as he safely can, before his brother would be justified in taking the life of his assailant in his defense of the brother. But if the brother was so drunk as not to be mentally able to know his duty to retreat, or was physically unable to retreat, a brother is not bound to stand by and see him killed or suffer great bodily harm, because he does not under such circumstances retreat. It is only the faultless, who are exempt from the necessity of retreating while acting in self-defense. Those in fault must retreat, if able to do so; if from the fierceness of the attack or for other reasons they are unable to retreat, they will be excused by the law for not doing so.
Accord Saunders, 175 W.Va. at 17, 330 S.E.2d at 675; State v. Wisman, 93 W.Va. 183, 194, 116 S.E. 698, 702 (1923). In > State v. W.J.B., 166 W.Va. 602, 608, 276 S.E.2d 550, 554 (1981), a case involving both the doctrine of self-defense and defense of another, we pointed out that
"a person has the right to repel force by force in the defense of his person, his family or his habitation, and if in so doing he uses only so much force as the necessity, or apparent necessity, of the case requires, he is not guilty of any offense, though he kill his adversary in so doing."
(Quoting State v. Laura, 93 W.Va. 250, 256-57, 116 S.E. 251, 253 (1923) and citing > State v. Preece, 116 W.Va. 176, 179 S.E. 524 (1935); State v. Thornhill, 111 W.Va. 258, 161 S.E. 431 (1931); State v. Clark, 51 W.Va. 457, 41 S.E. 204 (1902); State v. Manns, 48 W.Va. 480, 37 S.E. 613 (1900)).
Our cases have succinctly articulated the development and scope of the doctrine of self-defense and the use of deadly force under it. However, we have not had occasion to thoroughly discuss the defense of another doctrine. The facts of the instant case require that we fully explore this doctrine's principles.
1. Initial limitations on the doctrine of defense of another. The application of the common law doctrine of defense of another was very limited in its earliest beginnings. The doctrine was imposed only as a defense when a homicide occurred in defense of a member of one's family. Under the common law, "the privilege of using [deadly] force ... did not include authority for intervenors to protect third persons who were strangers to the intervenor." Alexander v. State, 52 Md.App. 171, 172, 447 A.2d 880, 882 (1982). Commentators have suggested that because of the initial limitation of the doctrine to one's family, it did not actually derive from the self-defense doctrine. See Marco F. Bendinelli & James T. Edsall, Defense of Others: Origins, Requirements, Limitations and Ramifications, 5 Regent U.L.Rev. 153, 155-156 (1995). Blackstone theorized that the defense actually arose out of the right to protect one's property. Blackstone noted that, at common law, one's acquired rights of property encompassed his wife, child, parent, or servant. 3 William Blackstone, Commentaries on the Law of England, ch.1, § 8(2) (1916).
The initial limitation of the doctrine to one's family eroded with time as courts began to extend the doctrine to allow for the defense of strangers. See State v. Chiarello, 69 N.J.Super. 479, 174 A.2d 506 (App.Div.1961). The expansion of the doctrine to include strangers brought with it a theory of potential liability. This theory was called the "alter ego" rule. The alter ego rule held that a defendant using deadly force to defend a person who was not entitled to use deadly force would be held criminally liable. See Moore v. State, 25 Okla.Crim. 118, 218 P. 1102 (1923); Leeper v. State, 589 P.2d 379 (Wyo.1979). In State v. Best, 91 W.Va. 559, 575, 113 S.E. 919, 925 (1922), this Court alluded to the alter ego rule when it was said that "the right of a person to defend another does not ordinarily exceed such person's right to defend himself[.]"
2. Development of reasonable belief standard. The alter ego rule worked a considerable hardship upon defendants who unknowingly intervened to aid third parties who were not privileged to use self-defense. In such situations, the intervenor was criminally liable for any injury or death he or she caused. See People v. Young, 11 N.Y.2d 274, 229 N.Y.S.2d 1, 183 N.E.2d 319 (1962); State v. Wenger, 58 Ohio St.2d 336, 390 N.E.2d 801 (1979). Many jurisdictions began to reject the alter ego rule, to a large extent, because of the position taken by the American Law Institute's Model Penal Code, § 3.05 (1985).
The Model Penal Code adopted the "reasonable belief" rule, which provided that an intervenor who acts in defense of another is not liable if his or her actions were reasonable under the circumstances. Under this rule, a defendant may be legally justified in killing to defend another, even if the intervenor acted under a mistaken belief as to who was at fault, provided his or her belief was reasonable.
B. Basic Requirements for the Defense of Another Doctrine
In this Court's review of its past decisions, decisions of other jurisdictions and commentaries, the doctrine of defense of another may be succinctly articulated. We therefore hold that 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, including deadly 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. We will now proceed to examine the key elements of the doctrine of defense of another.
1. Burden of proof. The doctrine of defense of another is an affirmative defense. This Court, as well as the United States Supreme Court, has made clear that "a defendant can be required to prove the affirmative defenses that he asserts." State v. Daniel, 182 W.Va. 643, 652, 391 S.E.2d 90, 99 (1990) (citing Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)). As a general rule, we held in Syllabus point 5 of Daniel that "[a] defendant is required to present evidence on the affirmative defenses asserted as long as the State does not shift to the defendant the burden of disproving any element of the States case." Id. Though we have not previously articulated the standard for the defense of another, lower courts and this Court have assumed that the standard used for self-defense was applicable to defense of another cases.
In this Court's decision in State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978), we abandoned the preponderance of the evidence standard that was previously imposed by this Court upon defendants asserting self-defense. See also State v. Schrader, 172 W.Va. 1, 3, 302 S.E.2d 70, 72 (1982) ("There is no question that this is no longer the law in West Virginia."). In lowering the defendant's burden on self-defense in Kirtley, we held that "[o]nce 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." Syl. pt. 4, State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374. Under Kirtley, a defendant "merely must produce sufficient evidence to create a reasonable doubt on the issue." State v. Clark, 171 W.Va. 74, 76, 297 S.E.2d 849, 851 (1982). The standard in Kirtley is appropriate for adoption as the standard for the doctrine of defense of another. Consequently, we hold that 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.
2. Amount of Force. A defendant asserting the defense of another must show that the force used was reasonable. This requirement is also known as the "proportionality" rule. Shelby A.D. Moore, Doing Another's Bidding Under a Theory of Defense of Others: Shall We Protect the Unborn with Murder, 86 Ken.L.J. 257, 285-86 (1998).
In defending another, a defendant is not legally obliged to arbitrarily use any degree of force he or she chooses. People v. Jordan, 130 Ill.App.3d 810, 86 Ill.Dec. 86, 474 N.E.2d 1283 (1985) (excessive force used). That is "a person may use only that force which is necessary in view of the nature of the attack; any use of excessive force is not justified and a homicide which results therefrom is unlawful." People v. Clark, 130 Cal.App.3d 371, 181 Cal.Rptr. 682, 686 (1982)(citing People v. Young, 214 Cal.App.2d 641, 29 Cal.Rptr. 595 (1963)). This principle of law is taken from the doctrine of self-defense. Our Court has previously held that 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.
State v. W.J.B., 166 W. Va. 602, 608, 276 S.E.2d 550, 557(1981) (citing Rose v. Commonwealth, 422 S.W.2d 130 (Ky.1967); Stennis v. State, 234 So.2d 611 (Miss.1970); State v. Parker, 403 S.W.2d 623 (Mo.1966); State v. Pearson, 288 N.C. 34, 215 S.E.2d 598 (1975); State v. Clark, 51 W.Va. 457, 41 S.E. 204 (1902); W. LaFave & A. Scott, Criminal Law 392-93 (1972)). Therefore, the reasonable force standard is appropriate for the doctrine of defense of another.
3. Reasonable belief that intervention was lawful. The "reasonable belief" standard of intervention emphasizes what the intervenor believes about the circumstances, as opposed to what are the actual circumstances. An Alabama court has ruled that the reasonable belief standard "shifts the emphasis to [the] defendant's reliance on reasonable appearances rather than exposing him to the peril of liability for defending another where appearances were deceiving and there was no actual imminent danger." > Morris v. State, 405 So.2d 81, 83 (Ala.Crim.App.1981). > (FN20) Similarly, this Court has previously ruled that "[t]he reasonableness of [a defendant'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." Syl. pt. 3, > State v. W.J.B., 166 W.Va. 602, 276 S.E.2d 550. Moreover, the reasonable belief standard "is founded upon, and strengthened by [the] persuasive policy consideration[ ] ... [that] one should not be convicted of a crime if he selflessly attempts to protect a victim of an apparently unjustified assault [.]" > State v. Holmes, 208 N.J.Super. 480, 488, 506 A.2d 366, 370 (App.Div.1986) (internal quotations and citation omitted).
The reasonableness of an intervenor's belief is determined by both a subjective and an objective inquiry. It was noted in > David v. State, 698 P.2d 1233, 1235 (Alaska Ct.App.1985), that the "defense is composed of an objective element, i.e., a reasonable belief that force is necessary, and a subjective element, i.e., an actual belief that force is necessary." In other words, the "actor must actually believe that [another] is in danger and that belief must be a reasonable one." > State v. Elam, 328 N.W.2d 314, 317 (Iowa 1982). See > Smiley v. State, 395 So.2d 235 Fla.Dist.Ct.App.1981); > State v. Moore, 178 N.J.Super. 417, 429 A.2d 397 (1981). Insofar as the reasonable belief standard is used by this Court for self-defense, it is an appropriate standard for the doctrine of defense of another.
4. Level of danger. An intervenor is not obliged to use deadly force in defense of another, unless the third party is in imminent danger of death or serious bodily harm. This "simply means that an intervenor cannot act until the party whom the intervenor is defending is immediately threatened." Moore, Doing Another's Bidding Under a Theory of Defense of Others, 86 Ken.L.J. at 284. This criterion is no different from that which this Court uses in the context of self-defense. We have held that a person who reasonably believes he or she "is in imminent danger of death or serious bodily harm ... has the right to employ deadly force in order to defend himself." > State v. W.J.B., 166 W.Va. at 606, 276 S.E.2d at 553 (citing > State v. Kirtley, 162 W.Va. 249, 252 S.E.2d 374 (1978); State v. Green, 157 W.Va. 1031, 206
S.E.2d 923 (1974); > State v. Bowyer, 143 W.Va. 302, 101 S.E.2d 243 (1957); > State v. Preece, 116 W.Va. 176, 179 S.E. 524 (1935)). Accord > State v. Hughes, 197 W.Va. 518, 524, 476 S.E.2d 189, 195 (1996). The imminent danger standard is appropriate for the doctrine of defense of another, as it is consistent with the requirement for using deadly force in self-defense.
END OF INSERT
By the way, I agree with the comments that the State's evidence has got to prove the crime beyond a reasonable doubt, not the defense. The cop's statement here was, at best, uninformed.
