At the conclusion of the evidence, Jones made a motion to strike the indictments, arguing that there was no evidence of malice. The trial judge overruled the motion. The jury found Jones guilty of voluntary manslaughter and use of a firearm in the commission of murder. The Constitution prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt. To support a conviction of use of a firearm in the commission of murder, the Commonwealth must prove all of the elements of murder.
Murder is the unlawful killing of another with malice.
17 Va. App. Proof of malice excludes the presence of passion, and proof of passion presupposes the absence of malice. Applying these principles to the record before us, we find that the evidence, viewed in the light most favorable to the Commonwealth, is insufficient to support a finding of malice. Although Jones used a firearm to kill Allen, the circumstances were such that the trier of fact could not have inferred beyond a reasonable doubt that Jones acted with malice. The evidence proved that the killing occurred while Allen and other men were kicking and stomping Jones.