State ex rel. Brown v. Thompson

• Decision Date: 15 June 1965
• Docket Number: No. 12448,12448
• Citation: 149 W.Va. 649,142 S.E.2d 711
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. James V. BROWN v. William J. THOMPSON, Judge of the Intermediate Court of Kanawha County, West Virginia, et al.

Page 711

142 S.E.2d 711

149 W.Va. 649

STATE ex rel. James V. BROWN v. William J. THOMPSON, Judge of the Intermediate Court of Kanawha County, West Virginia, et al.

No. 12448.

Supreme Court of Appeals of West Virginia.

Submitted April 27, 1965.

Decided June 15, 1965.

Syllabus by the Court

1. There is a clear distinction between the crime of accessory before the fact and the crime of aiding and abetting. An accessory before the fact must be absent at the time and place of the principal offense. An aider and abettor is a person who is present at the time and place of the commission of the principal offense.

2. An accessory before the fact is a person who being absent at the time and place of the crime, procures, counsels, commands, incites, assists or abets another person to commit the crime, and absence at the time and place of the crime is an essential element of the status of an accessory before the fact.

3. An accessory must be indicted as such whether indicted with the principal felon or separately.

4. To justify the conviction of a person as an accessory before the fact in must appear that he advised and agreed or urged or in some way aided a person to commit the offense, that he was not present when the offense was committed, and that the principal committed the offense.

5. By the common law, when a statute creates a new felony persons who are present and aid and abet a person who actually commits the offense are principals; and persons who counseled the offense but are absent at the time and persons who afterward assist the felon to elude justice are accessories before or after the fact.

6. By Article VIII, Section 21 of the Constitution of this State and Section 1, Article 1, Chapter 2, Code, 1931, the common law is in force in this State insofar as it is not repugnant to the principles of the Constitution and except in those respects in which it has not been altered by the Legislature; and at common law an aider and abettor or an accessory is subject to criminal responsibility in connection with the commission of an offense by a principal felon.

7. By the common law and the law of this State an accessory or an aider and abettor is guilty of a criminal offense if he counsels, procures or commands another person to commit a statutory offense which was also an offense at common law or a statutory offense which was not an offense at common law, or plans, cooperates, assists, aids or abets in the commission of any such offense.

8. By Section 7, Action 11, Chapter 61, code, 1931, an accessory before or after the fact is subject to criminal responsibility and may be indicted, convicted and punished for a crime in the county in which he became accessory or in the County in which the principal felon might be indicted if the accessorial acts occur in that county.

9. Any person who is capable of committing a crime may be guilty as a principal in the second degree and the fact that he is incompetent to commit an offense as a principal in the first degree does not preclude him from being a principal in the second degree.

10. A person may be guilty as an accessory before the fact although he or she is incompetent to commit the crime in person.

11. An indictment which charges a principal in the first degree with the commission of the crime created by Section 22, Article 3, Chapter 61, Code, 1931, and which also charges that certain other persons before the commission of the principal offense did feloniously counsel with, aid and abet the principal in the first degree to do and commit the principal offense satisfies the constitutional requirement that in all trials the accused shall be fully and plainly informed of the character and cause of the accusation and is a good and sufficient indictment of the persons charged with being accessories before the fact to the crime created by the statute.

Stanley E. Preiser, Arthur T. Ciccarello, Charleston, for relator.

Partick Casey, Spencer P. Simpson, Charleston, for respondents.

HAYMOND, Judge:

In this original prohibition proceeding instituted in this Court on March 23, 1965, the petitioner, James V. Brown, seeks to prohibit the defendants, Honorable William J. Thompson, Judge of the Intermediate Court of Kanawha County, West Virginia, and Honorable Charles M. Walker, Prosecuting Attorney of Kanawha County, West Virginia, from prosecuting him upon an indictment for a felony returned by the grand jury of the Intermediate Court of Kanawha County, West Virginia, at the Regular January 1965 Term of that court which indictment charged Ruth Maley, as principal, with the crime of falsifying certain written accounts kept by the State of West Virginia and preparing and submitting certain false written transmittal sheets to the Auditor of this State, with intent to falsify such written accounts, in violation of Section 22, Article 3, Chapter 61, Code, 1931, and Alex Dandy, the petitioner James V. Brown, Emil Belich, Harry Lacey and John Stanton with having counseled with, aided and abetted Ruth Maley to commit such offense in Kanawha County, West Virginia.

Upon the filing of the petition this Court issued a rule returnable April 27, 1965, at which time this proceeding was heard and submitted for decision upon the petition and its exhibits, the joint and several answer of the defendants and its exhibit, and the written briefs and the oral arguments of the attorneys in behalf of the respective parties.

The material facts are not disputed and the questions presented for decision are questions of law.

The indictment against the petitioner and others as defendants, the sufficiency of which is challenged by the petitioner in this proceeding, is based upon Section 22, Article 3, Chapter 61, Code, 1931, and, omitting the name of the appearing witness and the signature of the prosecuting attorney, is in this form:

'State of West Virginia, Kanawha County County, ss:

'IN THE INTERMEDIATE COURT OF SAID COUNTY:

'The Grand Jurors of the State of West Virginia, in and for the body of the County of Kanawha, and now attending the said Court, upon their oaths present, that within three years prior to the date of the finding of this indictment, in the County of Kanawha, State of West Virginia, RUTH MALEY, being than and there an employee, officer, clerk and agent of the State of West Virginia, did knowingly, unlawfully and feloniously make and cause to be made false entries in the written accounts kept by the State of West Virginia by preparing and submitting, and causing to be prepared and submitted, false transmittal sheets in writing accompanied by false statements and invoices in writing for Pioneer Construction Co., Inc., a corporation, to the Auditor of the State of West Virginia, which said written accounts, statements, invoices and transmittal sheets were kept by the said State of West Virginia, with intent in so doing to falsify, alter and conceal the true state of said written accounts against the peace and dignity of the State.

'And the Grand Jurors upon their oaths aforesaid do further present that ALEX DANDY, JAMES V. BROWN, EMIL BELICH, HARRY LACEY and JOHN STANTON, within three years prior to the date of the finding of this indictment in said County of Kanawha, before the felony was committed in form aforesaid, to-wit: within three years prior to the date of the finding of this indictment and in the County aforesaid, did feloniously counsel with, aid and abet the said RUTH MALEY to do and commit the said felony in said Kanawha County in the manner and form aforesaid, 'against the peace and dignity of the State.'

The petitioner contends that the foregoing indictment is fatally defective in that it fails to charge him with the commission of any offense under the laws of this State and that inasmuch is it charges him with being both an accessory before the fact and an aider and abettor in connection with the commission of the offense by Ruth Maley, as principal, the indictment fails fully and plainly to inform the petitioner of the character and cause of the accusation against him. The petitioner insists that as the indictment is void for the foregoing reasons his prosecution under it should be prevented by a writ of prohibition. On the contrary the defendants insist that the indictment sufficiently charges the petitioner with being an accessory before the fact in connection with the offense committed by Ruth Maley, as principal; that it fully and alainly informs the petitioner of the character and cause of the accusation against him and is in all respects a valid and sufficient indictment for the offense with which it charges the petitioner.

The petitioner insists that, as the statute which creates the offense with which Ruth Maley is charged in the indictment does not create the crime of an accessory or an aider and abettor in connection with the commission of that particular offense, a person who is such accessory or such aider and abettor, in the absence of such statute, does not commit any offense under the law of this State. He also asserts that there is no general statute of this State which makes it a crime for any person to be an accessory or an aider and abettor in the commission of an offense and that for that reason such accessory or such aider and abettor does not commit any offense under the law of this State. Though it is true that Section 22, Article 3, Chapter 61, Code, 1931, does not expressly make it an offense for any person to be an accessory or an aider and abettor in the Commission of the particular offense and though it is also true that there is no general statute of this State which makes it an offense for any person to be an aider and abettor in the commission of any specific offense, it does not follow that the failure of the statute creating the specific offense set forth in the indictment to impose criminal responsibility excludes such accessory or aider and abettor from such responsibility or that to act as accessory or...