State v. Jones, No. 13718

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation161 W.Va. 55,239 S.E.2d 763
PartiesSTATE of West Virginia v. Edwin D. JONES and Myrna Jones.
Docket NumberNo. 13718
Decision Date20 December 1977

Page 763

239 S.E.2d 763
161 W.Va. 55
STATE of West Virginia
v.
Edwin D. JONES and Myrna Jones.
No. 13718.
Supreme Court of Appeals of West Virginia.
Dec. 20, 1977.

Page 764

Syllabus by the Court

1. The first degree arson statute, W.Va.Code, 61-3-1, does not [161 W.Va. 56] abolish the common law distinctions between principals in the first or second degree and accessories before the fact.

2. Although W.Va.Code, 61-3-1, provides for equal punishment of principals and accessories before the fact, a person may be convicted as an accessory before the fact only if properly indicted as such.

3. An indictment charging that named persons did wilfully, maliciously, feloniously and unlawfully set fire to, aided, counseled and procured to be burned and burned and caused to be burned a dwelling house, sufficiently charges such persons as principals, but is fatally defective as to the offense of accessory before the fact, as it fails to set forth the name of the principal or state that such principal was unknown. Failure of the indictment to state the name of the principal or to state that such principal was unknown is not cured by the statute of jeofailes. W.Va.Code, 62-2-11.

4. The giving of an instruction, at the instance of the State, which in effect, tells the jury that a defendant may be found guilty as an accessory before the fact to arson, upon a showing, beyond a reasonable doubt, that the defendant wilfully and maliciously planned, counseled, procured, encouraged or caused the burning, is error as such instruction fails to instruct the jury that they would be required to find, beyond a reasonable doubt, that the defendant planned, counseled, and encouraged the one who was in fact the actual perpetrator.

Page 765

5. A witness may be cross-examined regarding bias, prejudice or expected favor or any other fact which might affect his credibility.

Cleo S. Jones, Charleston, for plaintiffs in error.

Chauncey H. Browning, Jr., Atty. Gen., Marianne Kapinos, Asst. Atty. Gen., Charleston, for defendant in error.

[161 W.Va. 57] MILLER, Justice:

Defendants Edwin and Myrna Jones appeal their first degree arson conviction rendered in the Circuit Court of Kanawha County. They claim that at best the State's evidence shows that they were accessories before the fact, yet the indictment did not charge such offense. 1

The crime of first degree arson is set out in W.Va.Code, 61-3-1. 2 The defendants contend that in this section the crime of first degree arson encompasses not only the acts of actually setting or aiding the setting of a fire, which would make one liable as a principal in the first or second degree, but also the act of procuring a burning, which would make one liable as an accessory before the fact.

Consequently, the defendants argue that W.Va.Code, 61-3-1, creates separate and distinct crimes because proof of the elements warranting conviction as a principal is different from the proof required to convict one as an accessory before the fact.

It is further argued that an indictment charging one as a principal will not support a conviction as an accessory before the fact. It is also urged that while the indictment sufficiently charges the defendants as principals, it fails as an indictment charging them as accessories before the fact, since it does not name the principal.

[161 W.Va. 58] As an alternate attack on the indictment, the defendants urge that it does not plainly inform them of the offense of which they were charged and, as a result, violates Article III, Section 14 of the West Virginia Constitution.

Finally, we note that the defendants first raised these points pursuant to a motion for new trial. We must, therefore, if we find the indictment defective, further consider whether the defect was cured by our statute of jeofailes, W.Va.Code, 62-2-11. 3

Judge Haymond in State ex rel. Brown v. Thompson, 149 W.Va. 649, 654-657, 142 S.E.2d 711, 715-717 (1965), cert. denied, 382 U.S. 940, 86 S.Ct. 392, 15 L.Ed.2d 350, made a thorough and perceptive analysis of the law concerning the degrees of participation in a criminal act. See also III W. Holdsworth, A History of The English Law 307-310 (5th ed. 1942). We need only to distill the essential guidelines from Thompson to begin our analysis of the problems raised in this case. First, one who is the absolute perpetrator of the crime is a principal in the first degree. Second, a person who is present, aiding and abetting the crime is a principal in the second degree.

Page 766

Third, an accessory before the fact is one who is absent at the time and place the crime is committed, but who has procured, counseled, encouraged or otherwise assisted the person who commits the crime. It is the absence of the accessory before the fact at the time and place of the commission of the crime that marks the essential difference of this crime.

Fourth, and a point not discussed in Thompson, an accessory after the fact is one who, knowing that a crime has been committed by another, receives, relieves or assists such other to escape arrest or punishment. [161 W.Va. 59] Wren v. Commonwealth, 67 Va. (26 Grat.) 952 (1875); Buck v. Commonwealth, 116 Va. 1031, 83 S.E. 390 (1914); 21 Am.Jur.2d Criminal Law § 126.

These are essentially the common law categories of criminal participation. In our State, as in other states, the Legislature has made certain statutory modifications. Under W.Va.Code, 61-11-6, certain persons related to the principal felon or accessory before the fact cannot be held as an accessory after the fact. 4

Furthermore, this section established the same punishment for a principal in the second degree and an accessory before the fact as that set for a principal in the first degree. It sets a penalty for an accessory after the fact at a reduced level. 5

As Thompson notes, our law requires that an accessory before the fact must be indicted as such and an indictment as a principal will not support a conviction for accessory before the fact. State ex rel. Muldrew v. Boles, 151 W.Va. 1033, 159 S.E.2d 36 (1968); State v. Powers, 91 W.Va. 737, 113 S.E. 912 (1922); State v. Roberts, 50 W.Va. 422, 40 S.E. 484 (1901). While there is little case law discussion of the reason for this rule, it seems apparent that it is based on the difference in elements of proof necessary to convict a principal felon and an accessory before the fact for a crime.

Some states have abolished by statute the common law distinctions between principals in the first and second degree and accessories before the fact, making them [161 W.Va. 60] all liable as principals. 6 It is clear, however, that W.Va.Code, 61-11-6, providing for the equality of punishment between principals and accessories before the fact, has been construed as not to have abolished the substantive distinction between the parties to a crime. State ex rel. Muldrew v. Boles, supra, 151 W.Va. at 1044, 159 S.E.2d at 42.

Therefore, the State's contention that by virtue of the equality of punishment provided in W.Va.Code, 61-3-1, the Legislature intended insofar as the crime of first degree arson is concerned to abolish the distinction between a principal and an accessory before the fact, is not valid under Muldrew, supra.

A further argument advanced by the State is that the arson statute merely enunciates a series of acts, any of which may result in conviction of first degree arson. Among the several acts are those which aid, counsel or procure the burning of a dwelling house. In this connection, Pyles v. Boles, 148 W.Va. 465, 135 S.E.2d 692 (1964), cert. denied, 379 U.S. 864, 85 S.Ct. 130, 13 L.Ed.2d 67, is cited. Pyles involved the kidnapping statute in which multiple acts are stated, any or all of which would constitute the crime of kidnapping. This Court stated that the fact multiple acts were stated in the statute and in the indictment did

Page 767

not mean that the defendant was charged with multiple offenses, but rather a single offense committed by a series of acts.

Here the arson statute sets out acts committed by different criminal participants. The problem in Pyles was whether the series of acts constituting kidnapping could be considered as separate criminal acts. The arson statute distinguishes the different persons: " . . . who wilfully and maliciously sets fire to or burns . . . or who aids, counsels or procures the burning . . . " W.Va.Code, 61-3-1 (emphasis added). The quality of each set of acts under the arson statute is manifestly different, the first category being direct, the second indirect.

[161 W.Va. 61] The Maryland court appears to be the only court which has confronted this question with an arson statute similar to ours. 7 In Wimpling v. State, 171 Md. 362, 189 A. 248 (1937), it was held that the statute created separate offenses of the actual burning and counseling or procuring the burning. In Butina v. State, 4 Md.App. 312, 242 A.2d 819, 822 (1968), further elaboration of this point was made:

"Since under the statute two separate...

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16 practice notes
  • State v. James Edward S., No. 19577
    • United States
    • Supreme Court of West Virginia
    • December 12, 1990
    ...regarding bias, prejudice or expected favor or any other fact which might affect his credibility." Syllabus Point 5, State v. Jones, 161 W.Va. 55, 239 S.E.2d 763 (1977), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 9. Bias is a term used in the common law of evi......
  • State v. Reedy, Nos. 17019 and 17020
    • United States
    • Supreme Court of West Virginia
    • December 19, 1986
    ...Petry, a distinction between principals in the first degree and aiders and abettors was observed. See, e.g., Syl. Pt. 2, State v. Jones, 161 W.Va. 55, 239 S.E.2d 763 (1977), overruled, State v. Petry, --- W.Va. ----, 273 S.E.2d 346. Pursuant to this distinction, trial courts could not give ......
  • State v. Hanson, No. 17691
    • United States
    • Supreme Court of West Virginia
    • June 16, 1989
    ...must be connected with the actual commission of the crime." See State v. Yates, 169 W.Va. 453, 288 S.E.2d 522 (1982); State v. Jones, 161 W.Va. 55, 239 S.E.2d 763 (1977), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980). The defendant here argues that the Sta......
  • State v. Petry, No. 14014
    • United States
    • Supreme Court of West Virginia
    • December 16, 1980
    ...Mfg. Co., W.Va., 253 S.E.2d 666 (1979). We have never discussed the underlying rationale for these distinctions, State v. Jones, W.Va., 239 S.E.2d 763 (1977), although Judge Haymond has delineated the differences among criminal actors in his scholarly opinion, State ex rel. Brown v. Thompso......
  • Request a trial to view additional results
16 cases
  • State v. James Edward S., No. 19577
    • United States
    • Supreme Court of West Virginia
    • December 12, 1990
    ...regarding bias, prejudice or expected favor or any other fact which might affect his credibility." Syllabus Point 5, State v. Jones, 161 W.Va. 55, 239 S.E.2d 763 (1977), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 9. Bias is a term used in the common law of evi......
  • State v. Reedy, Nos. 17019 and 17020
    • United States
    • Supreme Court of West Virginia
    • December 19, 1986
    ...Petry, a distinction between principals in the first degree and aiders and abettors was observed. See, e.g., Syl. Pt. 2, State v. Jones, 161 W.Va. 55, 239 S.E.2d 763 (1977), overruled, State v. Petry, --- W.Va. ----, 273 S.E.2d 346. Pursuant to this distinction, trial courts could not give ......
  • State v. Hanson, No. 17691
    • United States
    • Supreme Court of West Virginia
    • June 16, 1989
    ...must be connected with the actual commission of the crime." See State v. Yates, 169 W.Va. 453, 288 S.E.2d 522 (1982); State v. Jones, 161 W.Va. 55, 239 S.E.2d 763 (1977), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980). The defendant here argues that the Sta......
  • State v. Petry, No. 14014
    • United States
    • Supreme Court of West Virginia
    • December 16, 1980
    ...Mfg. Co., W.Va., 253 S.E.2d 666 (1979). We have never discussed the underlying rationale for these distinctions, State v. Jones, W.Va., 239 S.E.2d 763 (1977), although Judge Haymond has delineated the differences among criminal actors in his scholarly opinion, State ex rel. Brown v. Thompso......
  • Request a trial to view additional results

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