Homicide — Murder & Manslaughter

Va. Code §§ 18.2-30 through 18.2-36.2 — the charging ladder

Class 5 felony to Class 1 felony
Primary statute: § 18.2-32
Last verified: 2026-08-09

1. The Homicide Ladder

Grading

Offence	Statute	Class / punishment
Aggravated murder	§ 18.2-31	Class 1 felony
First degree murder	§ 18.2-32	Class 2 felony
Second degree murder	§ 18.2-32	Not less than 5 nor more than 40 years
Felony homicide	§ 18.2-33	Second degree murder — 5 to 40 years
Voluntary manslaughter	§ 18.2-35	Class 5 felony
Involuntary manslaughter	§ 18.2-36	Class 5 felony
Aggravated involuntary manslaughter (DUI)	§ 18.2-36.1(B)	1 to 20 years, one year MANDATORY minimum

Second degree murder and felony homicide carry a bare term rather than a felony class — the range is stated in the section itself, not in § 18.2-10.

2. Aggravated Murder — the FIFTEEN predicates, § 18.2-31

§ 18.2-31(A) — the complete list

Killing in the commission of ABDUCTION (as defined in § 18.2-48) where the abduction was committed with intent to EXTORT money or pecuniary benefit, or with intent to DEFILE the victim
Killing of any person by another FOR HIRE
Killing by a PRISONER confined in a state or local correctional facility as defined in § 53.1-1, or while in the custody of an employee thereof
Killing in the commission of ROBBERY or ATTEMPTED ROBBERY
Killing in the commission of, OR SUBSEQUENT TO, rape or attempted rape, forcible sodomy or attempted forcible sodomy, or object sexual penetration Note "or subsequent to" — this limb reaches a killing after the sexual offence is complete, which the § 18.2-32 felony-murder route does not say.
Killing of a LAW-ENFORCEMENT OFFICER (§ 9.1-101), a fire marshal or deputy/assistant fire marshal with police powers, an auxiliary police officer, an auxiliary deputy sheriff, or a law-enforcement officer of another state or the United States with felony arrest power — WHEN THE KILLING IS FOR THE PURPOSE OF INTERFERING with the performance of his official duties The purpose element is an element. And see subsection (B): this subdivision alone carries a MANDATORY MINIMUM OF LIFE where the offender was 18 or older at the time of the offence.
Killing of MORE THAN ONE PERSON as part of the same act or transaction
Killing of MORE THAN ONE PERSON WITHIN A THREE-YEAR PERIOD
Killing in the commission of or attempted commission of a violation of § 18.2-248 INVOLVING A SCHEDULE I OR II controlled substance, when the killing is for the purpose of furthering that violation
Killing by another PURSUANT TO THE DIRECTION OR ORDER of one engaged in a CONTINUING CRIMINAL ENTERPRISE as defined in § 18.2-248(I)
Killing of a PREGNANT WOMAN by one who KNOWS she is pregnant and has the intent to cause the involuntary termination of her pregnancy without a live birth
Killing of a person UNDER THE AGE OF 14 BY A PERSON AGE 21 OR OLDER Both ages are elements. A 20-year-old defendant does not qualify.
Killing in the commission of or attempted commission of an ACT OF TERRORISM as defined in § 18.2-46.4
Killing of a JUSTICE, judge of the Court of Appeals, circuit or district court judge, retired judge sitting by designation or recall, or substitute judge — for the purpose of interfering with his official duties as a judge
Killing of a WITNESS in a criminal case AFTER A SUBPOENA HAS BEEN ISSUED for that witness, for the purpose of interfering with the person's duties in the case The subpoena must already have issued — timing is an element.

Punishable as a CLASS 1 FELONY. Subsection (B): for a violation of subdivision A 6 where the offender was 18 or older at the time of the offence, the punishment is NO LESS THAN A MANDATORY MINIMUM TERM OF CONFINEMENT FOR LIFE.

3. First Degree — Three Routes

§ 18.2-32: "Murder, other than aggravated murder, by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary or abduction, except as provided in § 18.2-31, is murder of the first degree, punishable as a Class 2 felony."

Enumerated means — poison, lying in wait, imprisonment, starving Alternatives to premeditation, not illustrations of it.
Willful, deliberate and premeditated killing The ordinary route. All three qualities are required and each is a case-law question.
Felony murder — in the commission of, or ATTEMPT to commit, arson, rape, forcible sodomy, object sexual penetration, robbery, burglary or abduction A CLOSED list, unlike North Carolina's, which ends in a deadly-weapon catch-all. A felony outside this list does not make first-degree felony murder — it makes § 18.2-33.

Premeditation — what it means and how it is proved

Avent v. Commonwealth 279 Va. 175, 208 (2010), Supreme Court of Virginia, 2010

binding

"To premeditate means to adopt a specific intent to kill, and that is what distinguishes first and second degree murder. The intent to kill must come into existence at some time before the killing; it need not exist for any particular length of time." (Quoting Remington v. Commonwealth, 262 Va. 333, 352 (2001).)

The definition to put in front of the jury. Premeditation is the dividing line between first and second degree — nothing else in § 18.2-32's premeditation route separates them.

Jackson v. Commonwealth 267 Va. 178, 204 (2004), Supreme Court of Virginia, 2004

binding

"When proof of premeditation is the subject of a sufficiency challenge, evidence showing that the premeditation was only slight or momentary is sufficient to sustain the conviction. This is so because 'premeditation is an intent to kill that needs to exist only for a moment.'" (Quoting Green v. Commonwealth, 266 Va. 81, 104 (2003).)

THE ANSWER TO "THERE WAS NO TIME TO PLAN." Cite on any motion to strike aimed at the brevity of reflection.

Rhodes v. Commonwealth 238 Va. 480, 486 (1989), Supreme Court of Virginia, 1989

binding

"Premeditation and formation of an intent to kill seldom can be proved by direct evidence. A combination of circumstantial factors may be sufficient."

Build the premeditation case from circumstances: obtaining the weapon, lying in wait, the nature and number of wounds, conduct before and after.

Martinez v. Commonwealth 42 Va. App. 9, 22 (2003), Court of Appeals of Virginia, 2003

binding

"Premeditation is a factual question, reserved for determination by the fact finder."

Resist any attempt to have premeditation decided as a matter of law where there is evidence from which it can be inferred.

4. MALICE — the line between murder and manslaughter

What malice is, and how it is established

Dandridge v. Commonwealth 72 Va. App. 669, 681 (2021), Court of Appeals of Virginia, 2021

binding

"[I]n Virginia, criminal homicide is divided into two categories: murder and manslaughter. 'Murder' is the unlawful killing of another with malice. 'Manslaughter . . . is the unlawful killing of another without malice.'" (Quoting Canipe v. Commonwealth, 25 Va. App. 629, 642 (1997).)

The framing sentence for any homicide argument. Everything else in this section is about which side of it the facts fall.

Burkeen v. Commonwealth 286 Va. 255, 259 (2013), Supreme Court of Virginia, 2013

binding

"Malice inheres in the doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will." (As quoted in Ramos v. Commonwealth, 71 Va. App. 150, 162 (2019).)

Note the three disjunctive routes. Ill will is only one of them — malice does NOT require hatred or a grudge, and juries often assume it does.

Watson-Scott v. Commonwealth 298 Va. 251, 256-57 (2019), Supreme Court of Virginia, 2019

binding

Malice inferred from acts and conduct "encapsulates '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.'" It also exists wherever a defendant "willfully or purposefully, rather than negligently, embark[s] upon a course of wrongful conduct likely to cause death or great bodily harm." And notably, "malice may be implied from the deliberate use of a deadly weapon." (Quoting Essex v. Commonwealth, 228 Va. 273, 280-81, 288 (1984), and Smith v. Commonwealth, 239 Va. 243, 264 (1990).)

THE WORKHORSE CITATION. The deadly-weapon inference is the ordinary route to malice in a shooting or stabbing; the reckless-indifference limb is what reaches a death caused without any intent to kill at all.

Flanders v. Commonwealth 298 Va. 345, 358 (2020), Supreme Court of Virginia, 2020

binding

Malice "exists where a defendant lacks the deliberate intent to kill, but the circumstances of the defendant's actions are 'so harmful that the law punishes the act as though malice did in fact exist.'"

The answer to "he never meant to kill anyone." Intent to kill is not an element of murder generally — only of the premeditation route to FIRST degree.

Fletcher v. Commonwealth 72 Va. App. 493, 507 (2020), Court of Appeals of Virginia, 2020

binding

"The presence of malice 'is a question of fact to be determined by [the trier of fact].'" (Quoting Long v. Commonwealth, 8 Va. App. 194, 198 (1989).)

Keep malice with the jury wherever the evidence supports the inference.

5. Second Degree and Felony Homicide

Second degree murder is residual: "All murder other than aggravated murder and murder in the first degree is murder of the second degree and is punishable by confinement in a state correctional facility for not less than five nor more than forty years."

How the two felony-murder provisions divide

Predicate ON the § 18.2-32 list → first degree, Class 2 felony
Predicate NOT on that list (and not § 18.2-31) → § 18.2-33, second degree, 5 to 40 years
Both require the killing to occur in the prosecution of the felony The scope of "in the prosecution of" is the res gestae question — see the authority below.

Felony murder — the reach of § 18.2-33, and its limit

Heacock v. Commonwealth 228 Va. 397, 403-04, 323 S.E.2d 90, 93-94 (1984), Supreme Court of Virginia, 1984

binding

"[T]he commission of any felonious act (other than those expressly excepted [in Code § 18.2-33]) during the prosecution of which a death occurs supplies the malice which raises the incidental homicide to the level of second-degree murder." The statute "encompasses all felonious acts" not expressly excluded and is NOT limited to those felonies from which death is a foreseeable consequence.

Two decisive points. The predicate felony SUPPLIES malice, so it need not be proved separately; and foreseeability of death is NOT required — which forecloses the commonest defence argument against § 18.2-33.

Haskell v. Commonwealth 218 Va. 1033, 1043-44, 243 S.E.2d 477, 483 (1978), Supreme Court of Virginia, 1978

binding

The res gestae rule restricts felony-murder to homicides "so closely related to the felony in time, place, and causal connection as to make it a part of the same criminal enterprise." (As quoted in Cotton v. Commonwealth, 35 Va. App. 511, 515, 546 S.E.2d 241, 243-44 (2001).)

The outer boundary. Plead facts on all three axes — time, place, and causal connection — not merely that a felony was underway.

King v. Commonwealth 6 Va. App. 351, 359, 368 S.E.2d 704, 708 (1988), Court of Appeals of Virginia, 1988

binding

"[A] death which results not from actions of the felons nor from acts directly calculated to further the felony or necessitated by the felony, but from circumstances COINCIDENT to the felony, is not a death for which a felony-murder conviction will obtain."

THE LIMIT THAT LOSES CASES. A death merely coincident with the felony is not enough. Identify the act that furthered or was necessitated by the felony and connect it to the death.

6. Manslaughter — Punished, Not Defined

Both offences are defined at COMMON LAW. The heat-of-passion reduction from murder to voluntary manslaughter, and the criminal negligence standard for involuntary manslaughter, are supplied entirely by the authority below.

VOLUNTARY manslaughter — heat of passion

Canipe v. Commonwealth 25 Va. App. 629, 642-43 (1997), Court of Appeals of Virginia, 1997

binding

"[T]o reduce a homicide from murder to voluntary manslaughter, the killing must have been done in the heat of passion AND upon reasonable provocation. Malice and heat of passion are mutually exclusive; malice excludes passion, and passion presupposes the absence of malice." (As quoted in Dandridge v. Commonwealth, 72 Va. App. 669, 681 (2021).)

BOTH elements are required — heat of passion AND reasonable provocation. Passion alone, however genuine, does not reduce the offence if the provocation was not reasonable.

Woods v. Commonwealth 66 Va. App. 123, 131 (2016), Court of Appeals of Virginia, 2016

binding

"Heat of passion refers to the furor brevis which renders a man deaf to the voice of reason." Voluntary manslaughter is the unlawful killing of another "committed in the course of a sudden quarrel, or mutual combat, or upon a sudden provocation." (Quoting Rhodes v. Commonwealth, 41 Va. App. 195, 200 (2003), and Wilkins v. Commonwealth, 176 Va. 580, 583 (1940).)

Note this Rhodes is the 2003 Court of Appeals case at 41 Va. App. 195 — NOT the 1989 Supreme Court premeditation case at 238 Va. 480 cited in § 3. Two different cases, same name.

Witherow v. Commonwealth 65 Va. App. 557, 567 (2015), Court of Appeals of Virginia, 2015

binding

"Heat of passion excludes malice when provocation reasonably produces fear that causes one to act on impulse without conscious reflection." (Quoting Graham v. Commonwealth, 31 Va. App. 662, 671 (2000).)

Fear, not only anger, can found the reduction. Anticipate it where self-defence is raised and fails.

INVOLUNTARY manslaughter — criminal negligence

Noakes v. Commonwealth 280 Va. 338, 345-46 (2010), Supreme Court of Virginia, 2010

binding

"Gross, wanton, and culpable" negligence is the mens rea requirement for felony involuntary manslaughter. An OBJECTIVE standard applies, and the requisite mens rea "may be found to exist when the defendant either knew or should have known the probable results of his acts."

The objective standard is the point to press: what the defendant personally appreciated is not the test.

Commonwealth v. Cady 300 Va. 325, 863 S.E.2d 858 (2021), Supreme Court of Virginia, 2021

binding

Sets out the hierarchy of criminal negligence: ordinary civil negligence < criminal recklessness (misdemeanor reckless driving) < "gross, wanton, and culpable" negligence (felony involuntary manslaughter). The differences are "primarily . . . differences in degree", measured against the conduct of a reasonable person, but "a very substantial deviation is essential to criminal guilt."

The current framing case, and the one to cite for where a given set of driving facts sits on the ladder.

Mayo v. Commonwealth 218 Va. 644, 647-48 (1977), Supreme Court of Virginia, 1977

binding

"[W]hat distinguishes a speeding violation from the misdemeanor of reckless driving, and the misdemeanor from the felony of involuntary manslaughter, is the likelihood of injury to other users of the highways." The "degree of the hazard posed" depends upon the circumstances in each case.

The measure is the hazard created, not the traffic offence committed. Build the record on the specific danger to others.

Richardson v. Commonwealth 192 Va. 55, 56-57 (1951), Supreme Court of Virginia, 1951

binding

A "mere violation" of the reckless-driving statute, by itself, "is insufficient to bring the negligent act within the common law definition of involuntary manslaughter."

⚠️ THE TRAP IN VEHICULAR CASES. Proving reckless driving plus a death does NOT prove involuntary manslaughter. The gross, wanton and culpable standard must be met on its own.

§ 18.2-36.1 — DUI involuntary manslaughter

"Any person who, as a result of driving under the influence in violation of clause (ii), (iii), or (iv) of § 18.2-266 or any local ordinance substantially similar thereto unintentionally causes the death of another person, shall be guilty of involuntary manslaughter."

Note the clause restriction: the predicate is clause (ii), (iii) or (iv) of § 18.2-266. Check which clause the DUI was charged under.

§ 18.2-36.2 — watercraft

A parallel provision for operating a WATERCRAFT while under the influence. Note that the Virginia known-gaps list titles this section "Aggressive Driving", which appears to be an error in that file rather than in the Code.

7. Defence Attacks & Responses

Defense attack	Prosecution response
No premeditation.	Check the other § 18.2-32 routes first — an enumerated means, or a listed predicate felony, removes the need to prove premeditation at all.
The predicate felony isn't on the first-degree list.	Then § 18.2-33 is the charge, not first degree. Virginia's list is CLOSED — do not reason from other states' catch-all felony-murder provisions.
The killing was accidental.	§ 18.2-33 reaches a killing "accidentally, contrary to the intention of the parties" while in the prosecution of a felonious act. Accident is not an answer where a felony was being prosecuted.
Heat of passion — this is voluntary manslaughter.	A genuine reduction, but it needs BOTH heat of passion AND REASONABLE PROVOCATION (Canipe, 25 Va. App. at 642-43). Attack the reasonableness of the provocation, and remember malice and heat of passion are mutually exclusive — evidence establishing malice defeats the reduction.
He never intended to kill anyone, so it cannot be murder.	Intent to kill is not an element of murder generally. Malice "exists where a defendant lacks the deliberate intent to kill" but acts so harmfully that the law punishes the act as though malice existed (Flanders, 298 Va. at 358), and it may be implied from the deliberate use of a deadly weapon (Watson-Scott, 298 Va. at 256). Intent to kill matters to the PREMEDITATION route to first degree, not to murder as such.
There was no time to premeditate.	Premeditation "need not exist for any particular length of time" (Avent, 279 Va. at 208) and evidence that it was "only slight or momentary is sufficient to sustain the conviction" (Jackson, 267 Va. at 204). It may be proved by a combination of circumstantial factors (Rhodes, 238 Va. at 486).
Death wasn't a foreseeable result of that felony.	Not required. § 18.2-33 "encompasses all felonious acts" not expressly excluded and is not limited to felonies from which death is a foreseeable consequence (Heacock, 228 Va. at 404). The felony supplies the malice.
He was only reckless — at most this is reckless driving.	Grade it on the hazard created, not the traffic offence: Mayo, 218 Va. at 648. But be honest about Richardson — a mere violation of the reckless-driving statute plus a death does NOT establish involuntary manslaughter, so build the gross, wanton and culpable showing independently.
The DUI manslaughter charge doesn't fit the clause charged.	A real check — § 18.2-36.1 is keyed to clauses (ii), (iii) and (iv) of § 18.2-266. Confirm the clause before relying on the section.

8. Before You Charge

Aggravated murder predicates under § 18.2-31 checked in FULL
Which § 18.2-32 route — enumerated means, premeditation, or listed felony
Predicate felony confirmed to be ON the § 18.2-32 list If not, the charge is § 18.2-33 second degree.
For § 18.2-33: the felonious act, and that the killing occurred in its prosecution
MALICE identified by the route the facts support — deadly weapon, reckless indifference, or ill will Not defined anywhere in the Code. See § 4.
For first degree by premeditation: the circumstantial factors listed, per Rhodes
For § 18.2-33: res gestae pleaded on all three axes — time, place, causal connection And check King — a death merely COINCIDENT to the felony will not do.
Lesser-included manslaughter instructions considered §§ 18.2-35 and 18.2-36 supply no elements; the common law governs.
If heat of passion is in play: BOTH the passion and the REASONABLENESS of the provocation addressed
For § 18.2-36.1: the § 18.2-266 clause charged, and whether (B) aggravation applies
If (B): the one-year mandatory minimum accounted for
Class 1 / Class 2 consequences under § 18.2-10 confirmed

9. Key Authorities & Case Annotations

Annotated authority — research layer, not printed on the PDF

Coleman v. Commonwealth 184 Va. 197, 201, 35 S.E.2d 96, 97, Va., 1945

Two propositions the whole ladder rests on: MALICE MAY BE EITHER EXPRESS OR IMPLIED BY CONDUCT, and "in every unlawful killing, IF IT BE UNACCOMPANIED BY CIRCUMSTANCES OF PALLIATION, malice is implied from the act of killing, and the homicide is PRESUMED TO BE MURDER IN THE SECOND DEGREE."

Practical value: The default grade. Second degree is where an unlawful killing starts, and the litigation is about what moves it — premeditation up, provocation or mere negligence down. Note the condition: the presumption operates only where the killing is unaccompanied by circumstances of palliation.

Moxley v. Commonwealth 195 Va. 151, 157-60, 77 S.E.2d 389, 393-94, Va., 1953

Applies the Coleman presumption, and adds two points that decide instruction fights. MALICE IS THE TOUCHSTONE distinguishing murder from manslaughter. "Passion brought on by an unlawful assault may REDUCE the homicide to manslaughter", and whether a killing was done in the heat of passion upon reasonable provocation IS GENERALLY A JURY QUESTION. Conviction REVERSED and remanded.

Practical value: Cite for the presumption, but do NOT cite Moxley for any allocation of the BURDEN of proof between the parties — the word "burden" does not appear in the opinion, and the legacy annotation that said otherwise was wrong. Moxley also shows the presumption is not a destination: it was itself a reversal.

Pugh v. Commonwealth 223 Va. 663, 668, 292 S.E.2d 339, 341, Va., 1982

The definitions themselves. "EXPRESS MALICE is evidenced when 'one person kills another with a sedate, deliberate mind, and formed design.' . . . IMPLIED MALICE exists when any PURPOSEFUL, CRUEL ACT is committed by one individual against another WITHOUT ANY, OR WITHOUT GREAT PROVOCATION."

Practical value: The working definition to put in front of a jury. The operative word in the implied limb is PURPOSEFUL — which is what rules out inadvertence, and why Essex matters.

King v. Commonwealth 217 Va. 601, 607, 231 S.E.2d 312, 316, Va., 1977

The involuntary-manslaughter standard: where negligence is "SO GROSS, WANTON, AND CULPABLE AS TO SHOW A RECKLESS DISREGARD OF HUMAN LIFE", a killing resulting from it, ALTHOUGH UNINTENTIONAL, is both a tort and a crime punishable as involuntary manslaughter. Ordinary want of care that causes death is a tort only.

Practical value: The floor of criminal homicide. Two thresholds, not one: ordinary negligence is not a crime at all, and gross negligence is a crime but is NOT murder. NAME COLLISION — this is not the King v. Commonwealth, 6 Va. App. 351 (1988), cited in the felony-homicide section of this sheet.

Essex v. Commonwealth 228 Va. 273, 280-82, 322 S.E.2d 216, 219-21, Va., 1984

A LIMIT AGAINST THE COMMONWEALTH, and a case of first impression on whether drunken driving supplies implied malice. Malice requires a wrongful act done "WILFULLY OR PURPOSEFULLY", and "this requirement of volitional action IS INCONSISTENT WITH INADVERTENCE. Thus, if a killing results from negligence, HOWEVER GROSS OR CULPABLE, and the killing is CONTRARY TO THE DEFENDANT'S INTENTION, MALICE CANNOT BE IMPLIED." The three second-degree murder convictions were VACATED and the Commonwealth permitted on retrial to prosecute "for offenses NO GREATER THAN INVOLUNTARY MANSLAUGHTER." Poff and Thomas, JJ., dissented in part.

Practical value: Read before charging murder on a vehicular death. Essex is the obstacle, not the authority — the legacy annotation presented it as governing DUI-fatality charging when in fact it vacated the murder convictions. Its separate holding on the § 18.2-269 presumption is also worth knowing: instructing on the statutory presumption from a HOSPITAL blood test not taken under § 18.2-268 was prejudicial error, and consolidation spread that error to the homicide counts. ⚠️ NOT YET READ FOR THIS SHEET — the later Court of Appeals decisions applying Essex to DUI-malice, Knight, 61 Va. App. 148 (2012) and Montano, 61 Va. App. 610 (2013). Do not argue the present state of DUI-malice from Essex alone until those are read.

Martin v. Commonwealth 184 Va. 1009, 1016-17, 37 S.E.2d 43, 46, Va., 1946

To reduce a homicide from murder to VOLUNTARY MANSLAUGHTER, the killing must have been done IN THE HEAT OF PASSION AND UPON REASONABLE PROVOCATION. Both limbs are required.

Practical value: The two-limb structure is the Commonwealth's answer to a bare provocation argument: subjective passion without objectively reasonable provocation does not reduce the grade, and provocation that did not in fact produce passion does not either.

McClung v. Commonwealth 215 Va. 654, 656-57, 212 S.E.2d 290, 292-93, Va., 1975

Heat of passion "MAY BE FOUNDED UPON RAGE, FEAR, OR A COMBINATION OF BOTH". Whether a killing was so done is generally a jury question: "ONLY when the trial court, giving the defendant the benefit of every reasonable inference from the evidence, CAN SAY THAT THE MINDS OF REASONABLE MEN COULD NOT DIFFER does the question become [one] of law."

Practical value: FEAR COUNTS. The common assumption that heat of passion means anger is wrong, and a frightened defendant can reach voluntary manslaughter. This is also the standard for resisting a motion to strike the greater offence.

Barrett v. Commonwealth 231 Va. 102, 105-06, 341 S.E.2d 190, 192-93, Va., 1986

"MALICE AND HEAT OF PASSION ARE MUTUALLY EXCLUSIVE; malice excludes passion, and passion presupposes the absence of malice." And the point that reverses convictions: "A PLEA OF SELF-DEFENSE AND A CLAIM OF PROVOKED HEAT OF PASSION DO NOT CONFLICT WITH EACH OTHER" — a jury rejecting self-defence does not thereby reject passion, and "it is IMMATERIAL that the jury might have rejected the lesser-included offense; IF THERE IS EVIDENCE TENDING TO SUPPORT the lesser offense, a trial court ERRS IN REFUSING AN INSTRUCTION THEREON."

Practical value: The reversal risk in every self-defence homicide tried to a jury. Opposing a heat-of-passion instruction on the ground that the defendant ran self-defence is the error Barrett identifies. Read the caption before citing: Barrett is a MALICIOUS WOUNDING case under § 18.2-51 that imports the homicide doctrine — the legacy annotation cited it as a § 18.2-35 voluntary-manslaughter holding.

Commonwealth v. Vaughn 263 Va. 31, 35-36, 557 S.E.2d 220, 222-23, Va., 2002

The counterweight to Barrett, and it cuts FOR the Commonwealth. Where the evidence is sufficient to support a conviction of the crime charged "and there is NO INDEPENDENT EVIDENCE warranting a conviction [of the lesser-included offense], AN INSTRUCTION ON THE LESSER-INCLUDED OFFENSE NEED NOT BE GIVEN"; MORE THAN A SCINTILLA of evidence is required. The Court of Appeals was reversed and the trial court's judgment reinstated.

Practical value: What to argue when the defence asks for every lesser offence on the ladder. Barrett and Vaughn are the two poles: any evidence supporting the lesser requires the instruction, but a bare scintilla does not.

Epperly v. Commonwealth 224 Va. 214, 227-29, 294 S.E.2d 882, 890-92, Va., 1982

First-degree murder AFFIRMED where THE VICTIM'S BODY WAS NEVER FOUND and the evidence was ENTIRELY CIRCUMSTANTIAL as to both the corpus delicti and premeditation. The corpus delicti — that the victim is dead and that death was caused by criminal violence — may be proved "either by direct evidence or BY PROOF SO STRONG AS TO PRODUCE THE FULL ASSURANCE OF MORAL CERTAINTY". The Court REJECTED the argument that proof without a body requires an eyewitness, identifiable remains, or a confession, and traced the contrary belief to a misreading of Hale.

Practical value: The controlling authority for a no-body homicide. Meet the "corpus delicti means the corpse" argument head-on — the Court calls it a layman's misconception. Epperly also upheld the admission of tracking-dog evidence, which is often what such a case turns on.

Whitley v. Commonwealth 223 Va. 66, 73-74, 286 S.E.2d 162, 166-67, Va., 1982

For a killing in the commission of robbery: "While the violence or intimidation must precede or be concomitant with the taking, IT IS IMMATERIAL THAT THE VICTIM IS DEAD WHEN THE THEFT OCCURS. For purposes of the common-law definition, A CORPSE IS A 'PERSON' if 'the taking occurs minutes after the victim is killed.'" The question is whether ROBBERY WAS THE MOTIVE for the killing, which may be shown circumstantially.

Practical value: The answer to "he only took the property after she was already dead" on a felony-murder or § 18.2-31 predicate theory. Compare Branch, 225 Va. 91 (1983), where the same sequence did NOT support robbery because the intent to steal was formed afterwards — the dividing line is motive, not sequence.