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Bailey v. Commonwealth - 5 Va. App. 331, 362 S.E.2d 750 (1987)


Involuntary manslaughter is the killing of one accidentally, contrary to the intention of the parties, in the prosecution of some unlawful, but not felonious, act, or in the improper performance of a lawful act. When the commonwealth predicates the charge upon the violation of a statute, it must show that such violation was the proximate cause of the homicide. The improper performance of the lawful act, to constitute involuntary manslaughter, must amount to an unlawful commission of such lawful act, not merely a negligent performance. The negligence must be criminal negligence. The accidental killing must be the proximate result of a lawful act performed in a manner so gross, wanton, and culpable as to show a reckless disregard of human life.


Defendant appealed the judgment of the Circuit Court, which convicted him of involuntary manslaughter. An eyewitness testified that defendant, while horse playing with his friends, pulled out a gun and put it back in his pocket. The victim fell and began laughing. Defendant pulled the gun out with his palm up and indicated toward the victim. The gun went off and struck the victim in the back. Defendant appealed his conviction for involuntary manslaughter.


May a killing that is accidental, but occurred due to the reckless handling of a firearm, constitutes involuntary manslaughter?




The court affirmed. The court held that the conviction was supported by evidence that defendant's handling of the gun was an unlawful act with criminal negligence or a lawful act in a manner so gross, wanton, and culpable as to show a reckless disregard for human life. The court found that the act of intentionally holding a loaded gun in the direction of a victim, who was on the ground and no more than 5 to 10 feet away, constituted reckless handling of the firearm in violation of Va. Code Ann. § 18.2-56.1(A). The court held that, where the intentional violation of the statute involved an inherently dangerous act that was the proximate cause of the homicide, the accidental killing was a foreseeable result of the conduct and constituted involuntary manslaughter.
The court affirmed defendant's involuntary manslaughter conviction.

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