State v. Petry

• Decision Date: 16 December 1980
• Docket Number: No. 14014,14014
• Citation: 273 S.E.2d 346,166 W.Va. 153
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Pamela Jean PETRY.

Page 346

273 S.E.2d 346

166 W.Va. 153

STATE of West Virginia v. Pamela Jean PETRY.

No. 14014.

Supreme Court of Appeals of West Virginia.

Dec. 16, 1980.

Syllabus by the Court

1. With regard to all cases in which the trial shall commence after the date on which this opinion is handed down by this Court the prior common law rule requiring that aiders and abettors or accessories before the fact be indicted as such is abolished and, hereafter, a general indictment as a principal in the first degree shall be sufficient to sustain a conviction as an aider and abettor or as an accessory before the fact.

2. Where under prior case law a criminal defendant was entitled to be indicted as an aider and abettor in order to be convicted as such, well established prohibitions against ex post facto changes in either procedural or substantive criminal law require that the defendant be allowed the benefit of the common law rule in effect at the time she was tried.

Leo Catsonis, Charleston, for plaintiff.

Chauncey H. Browning, Atty. Gen., Gregory W. Bailey, Deputy Atty. Gen., Paula D. Dean, Asst. Atty. Gen., Charleston, for defendant.

NEELY, Chief Justice:

This is an appeal by Pamela Jean Petry from a conviction in the Circuit Court of Mason County for breaking and entering. Among other points, she contends that the indictment charged her as being a principal in the first degree; that the evidence in the case showed that she was a principal in the second degree; and, that the trial court, under our holding in State v. Bennett, 157 W.Va. 702, 203 S.E.2d 699 (1974) erred in failing to direct an acquittal. We agree that the trial court was incorrect in failing to direct a verdict of acquittal for the defendant; however, we take this opportunity to abolish the technical distinction between principals in the first and second degree insofar as that distinction must be observed in drafting an indictment. We also take this occasion to abolish the distinction between principals and accessories before the fact and, therefore, hold that a general indictment as a principal in the first degree shall be sufficient to sustain a conviction as an aider or abettor or an accessory before the fact since, as we have acknowledged before, such technical distinctions serve no meaningful purpose to defendants and merely allow the guilty to go free. State v. Fitch, W.Va., 263 S.E.2d 889 (1980).

The defendant, Pamela Jean Petry, was convicted on the basis of an indictment which said:

That Pamela Jean Petry on the day of December, 1975, in the said county of Mason did unlawfully and feloniously break and enter a certain building, to-wit: known as Village Pharmacy, said building belonging to the West Virginia Telephone Company, Incorporated, a corporation, and said building then and there being in the lawful possession of Wolf-Newland Pharmacies, Incorporated, a corporation, and not a dwelling house or outhouse adjoining thereto or occupied therewith, with intent the goods and chattels of Wolf-Newland Pharmacies, Incorporated, a corporation, then and there in said building, to steal, take and carry away, against the peace and dignity of the State.

During the appellant's trial three other persons charged with committing the crime testified against the appellant; the testimony of all three indicated that at the time the crime was committed the appellant remained in the van which had transported them to the scene. She served as a look-out throughout the time the crime was in progress and she never actually entered the pharmacy at the time the crime was being committed.

I

The common law draws a clear line between principals, the criminal actors who actually perpetrated the crime, and accessories before the fact, the criminal actors who conspired to commit the crime but were absent at its commission. Consequently the common law rules of pleading require that an indictment specifically charge an accused either as a principal or as an accessory before the fact. If the defendant were charged as a principal he could not be convicted upon proof that he was an accessory and vice versa. On the other hand, the common law did not require that an accused be specifically charged as a principal in the first degree, that is the criminal actor who perpetrated the crime, or a principal in the second degree, that is the criminal actor who aided or abetted and was actually or constructively present during the commission of the crime.

Our Court apparently confused these two common law rules of pleading when we held in State v. Bennett, supra that a defendant must be specifically charged as a principal in the second degree to be convicted as an aider and abettor. Since distinctions among criminal actors are now obsolete, as our analysis of the evolution of these distinctions will demonstrate, we take this occasion not only to overrule the requirement in State v. Bennett that principals in the first and second degree be specifically indicted as such, but also to overrule all our cases holding that a principal and an accessory before the fact must be specifically indicted as such. We believe that the defendant's right to be fully informed of the crime charged in the indictment under W.Va.Const., art. III, sect. 14 will be fully protected, particularly in light of our liberalized rules on criminal discovery which are discussed infra.

We recently stated in State v. Fitch, supra that we preferred to have the Legislature eliminate the technical distinction between principals in the first degree and aiders and abettors. Believing that we cannot continue to allow the guilty to go free on bare technicalities, we decide today to eliminate this absurdity in the common law ourselves. Morningstar v. Black & Decker 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. Thompson, 149 W.Va. 649, 654-657, 142 S.E.2d 711, 715-717, cert. denied, 382 U.S. 940, 86 S.Ct. 392, 15 L.Ed.2d 350 (1965). Our examination of the origins of the distinctions among criminal actors reveals that the rule has endured because of repetition, not reason. Our conclusion that the distinctions among parties to a crime are an anachronism is hardly singular, although our method of remedying this disorder in the law may be. ¹

In order to discuss these distinctions we must accurately define the differences among the criminal actors. At common law the parties to a felony were divided into principals and accessories. The principals were divided into: (1) principals in the first degree who actually perpetrated the act; and, (2) principals in the second degree, known under early common law analysis as accessories at the fact, who were actually or constructively present at the scene of the crime and who aided or abetted directly or indirectly. The accessories were divided into: (A) accessories before the fact who conspired with the perpetrator but were not present during the commission of the crime; and, (B) accessories after the fact who rendered assistance after the crime was completed. R. Perkins, Criminal Law 643-44 (1969); W. LaFave & A. Scott, Criminal Law § 63 (1972); 4. W. Blackstone, Commentaries on the Laws of England 33 (1765); and, State v. Scott, 80 Conn. 317, 68 A. 258 (1907). We will consider only principals in the first degree, aiders and abettors, and accessories before the fact in felony cases, since the accessory after the fact, by virtue of his involvement after the completion of the felony, is not treated as a participant in the felony but rather as one who obstructed justice. W. LaFave & A. Scott, supra, at 496. Misdemeanors, on the other hand, "(d)id not admit of accessaries (sic) either before or after the fact," United States v. Hartwell, 26 F.Cas.No. 15, 318, p. 196 (C.C.Mass.1869). See Note, "Accessory Before the Fact to Misdemeanor A Legal Impossibility?" 74 W.Va.L.Rev. 402 (1972).

Under the English common law, at the time it influenced American law, all parties to a felony received the same penalty and nearly all felonies were capital crimes, ² thus the distinctions among criminal actors arose to protect accessories from execution. See R. Perkins, supra, at 669, W. LaFave & A. Scott, supra, at 499. Courts have long acknowledged that this distinction was simply an artificial device designed to prevent excessive executions in felony cases. 2 J. Stephen, History of the Criminal Law of England 231 (1883). In searching for the rationale for these distinctions one court reasoned that, "distinctions between accessories and principals rest solely in authority, being without foundation either in natural reason or the ordinary doctrine of law; for the general rule of law is that what one does through another's agency is to be regarded as done by himself." Carlisle v. State, 31 Tex.Cr.R. 537, 546, 21 S.W. 358, 359 (1893). Thus, one can only reasonably conclude that these common law distinctions have been manipulated for several hundred years in the service of ad hoc justice at the expense of procedural rationality. Once, however, this irrational system had been firmly established, the effect, as in all areas where procedure is manipulated to achieve substantive results, was a great deal of ad hoc injustice.

The confusion that has been engendered by continuing to honor obsolete distinctions among criminal actors is best exemplified in the case at bar which involves the difference between a principal in the first degree and a principal in the second degree. In rare instances, some unusual statute has provided a different penalty for one of these than for the other, State v. Woodworth, 121 N.J.L. 78, 83, 1 A.2d 254, 258 (1938); Rex v. Sterne, 1 Leach 473, 168 Eng.Rep.R. 338 (1787), but our own statute, W.Va.Code, 61-11-6 (1923), holds that the punishment of...