State v. Haines
| Decision Date | 28 November 1972 |
| Docket Number | No. 13168,13168 |
| Citation | 156 W.Va. 281,192 S.E.2d 879 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Lester Rollings HAINES. |
Syllabus by the Court
1. Two or more persons may be charged in an indictment with the commission of a crime, such as armed robbery, as principals in the first degree, when one of the two persons was present, aiding and abetting the other in the commission of the crime; principals in the second degree being indictable and punishable, under our Code and practice, as principals in the first degree.
2. Where, under an indictment charging three separate individuals with armed robbery, one has been convicted of the crime charged, one of the others may be tried thereunder as a principal in the second degree, and, if convicted, punished as the principal felon.
3. 'Merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his noninterference was one of the conditions of the commission of the crime; or unless his noninterference was designed by him and operated as an encouragement to or protection of the perpetrator.' Syllabus, State v. Patterson, 109 W.Va. 588 (155 S.E. 661).
4. 'A judgment rendered on a verdict of guilt in a criminal case will be reversed, the verdict set aside and defendant granted a new trial where the evidence does not establish the guilt of the defendant beyond all reasonable doubt.' Syllabus, State v. Calandros, 140 W.Va. 720 (86 S.E.2d 242).
Henry Clay Hart, Jr., Capon Bridge, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Willard A. Sullivan, Richard E. Hardison, Asst. Attys. Gen., Charleston, for defendant in error.
This criminal case is before the Court on a writ of error and supersedeas granted to an order of the Circuit Court of Morgan County, by which order the circuit court entered judgment upon a jury verdict finding Lester Rollings Haines, the plaintiff in error herein, guilty as alleged in a joint indictment which charged Lester Rollings Haines, David Julian Haines and Donald Douglas Lafollette with a crime defined in Code, 1931, 61--2--12, as amended, which is commonly referred to as armed robbery. By its final judgment entered on the jury verdict, the trial court sentenced Lester Rollings Haines to confinement in the penitentiary of this state for a period of ten years.
The joint indictment against the plaintiff in error, hereinafter called the defendant, and the other co-indictees charges that they made a felonious assault upon Austin B. Greer by putting him in bodily fear and thereby stole from his person United States currency in the amount of $5. The principal part of the indictment for the purpose of this opinion is as follows:
'* * * that Lester Rollings Haines, David Julian Haines, and Donald Douglas Lafollette, on the 13th day of February, 1971, in said County of Morgan, in and upon one Austin B. Greer an assault did feloniously make, and him, the said Austin B. Greer did then and there feloniously put in bodily fear, and United States Currency of the value of five dollars, the property of the said Austin B. Greer, and lawfully in his control and custody, from the person of the said Austin B. Greer and against his will, then and there feloniously and violently did steal, take and carry away, against the peace and dignity of the State. * * *'
The defendant, who was tried separately from his co-indictees, contends in one of his assignments of error that, at the most, he was only an aider and abettor or a principal in the second degree, and that Donald Douglas Lafollette, his co-indictee, who was the principal in the first degree, was found guilty by a jury of only assault and battery and was sentenced to confinement in the county jail for a period of one year and that an order of nolle prosequi was entered to the indictment of David Julian Haines, the other co-indictee, who is a brother of the defendant, and who was present at the scene of the crime charged in the indictment.
Another assignment of error is that the trial court erred in permitting the defendant to be tried as an aider and abettor when he was indicted as a principal in the first degree. A third assignment of error is that the verdict of the jury is contrary to the law and evidence.
The statute under which the indictment was drawn is Code, 1931, 61--2--12, as amended, and reads, in part, as follows:
'If any person commit, or attempt to commit, robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than ten years.'
With reference to the punishment of principals in the second degree and accessories who are not deemed accessories after the fact, Section 6, Article 11, Chapter 61, of the Code, 1931, provides:
'In the case of every felony, every principal in the second degree, and every accessory before the fact, shall be punishable as if he were the principal in the first degree; * * *'
This case was tried upon the theory that the defendant was a principal in the second degree.
In the case of State v. Wamsley, 109 W.Va. 570, 156 S.E. 75, Wamsley and Marin were jointly indicted and charged with the crime of rape. The evidence disclosed that Wamsley committed the overt act upon the prosecuting witness and that Martin, his co-indictee, was present aiding and abetting in the commission of the act. The Court held in the first point of the syllabus that 'Two or more persons may be charged in an indictment with the commission of a crime, such as rape, which from its nature could in fact have been committed by but one, those who are present aiding and abetting its commission, being principals of the second degree, and indictable and punishable, under our Code and practice, as principals of the first degree.'
The companion case to the Wamsley case is State v. Martin, 112 W.Va. 88, 163 S.E. 764. The single point of the syllabus in that case holds that 'Where, under an indictment charging two separate individuals with rape, one who has been convicted of the crime charged, the other may be tried thereunder as a principal in the second degree, and, if convicted, punished as the principal felon.' In the Martin case, counsel for the defendant contended that if Martin was a principal in the second degree, then the indictment should allege that he aided and abetted Wamsley, the principal in the first degree. This Court, however, held otherwise. We hold, therefore, that the indictment in this case against the defendant, Lester Rollings Haines, is good and that he was properly placed on trial upon the charges contained therein.
The contention of the defendant that he was convicted of a greater offense than the principal in the first degree and received a sentence of ten years in the penitentiary wherein the principal in the first degree was found guilty of assault and battery and sentenced to one year in jail is not a valid one. The test is not whether the principal in the second degree received a more severe sentence than the principal in the first degree, but whether or not the principal in the first degree could have, under the law, received a penalty equal to that imposed upon the principal in the second degree. State v. Loveless, 139 W.Va. 454, 465--466, 80 S.E.2d 442, 449; Annot., 24 A.L.R. 570, 607--608. Code, 1931, 61--11--6, provides that the principal in the second degree shall be punished as if he were the principal in the first degree.
Two defendants who are indicted jointly but elect to be tried separately may have different jury verdicts as the result of different juries considering and weighing the evidence. This could necessarily result in different sentences and the principal in the second degree could receive, under the law, a more severe sentence than the principal in the first degree.
The defendant further contends that the verdict of the jury was contrary to the law and the evidence. In order to determine this we should look further into the facts as presented to the jury.
Austin Greer, the prosecuting witness, testified that he was proceeding in his automobile on a narrow, one-lane road toward Route 522 when another automobile approached from the opposite direction. The road was icy and slippery and too narrow to allow two vehicles to pass. According to his testimony, Greer was alone in his automobile. After the other automobile stopped, Greer got out of his automobile and went to the other automobile and said: ...
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