Proposed Jury Instructions for Burglary and Larceny 

NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).

BURGLARY

(nighttime entering without breaking)


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Nighttime Burglary. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Nighttime Burglary; and (2) not guilty.
    Burglary is committed when any person breaks and enters, or enters without breaking either in the daytime or nighttime a dwelling house or outhouse adjoining thereto, or occupied therewith of another person with the intent to commit a crime therein.
    "Dwelling house" shall include but not be limited to a mobile home, house trailer, modular home, factory-built home or self-propelled motor home, used as a dwelling regularly or only from time to time, or any other nonmotive vehicle primarily designed for human habitation and occupancy and used as a dwelling regularly or only from time to time.
    "___________________________________________" is committed when any person (elements and definition of offense intended to be committed inside the dwelling house)
_________________________________________________________________
_________________________________________________________________
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.

    Before the Defendant, ______________________________ can be convicted of Nighttime Burglary, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.     The Defendant, ______________________________,
2.     in _______________ County, West Virginia,
3.     on or about the _____ day of _______________, 199__,
4.     did enter without breaking in the nighttime,
5.     the dwelling house (or other type residential structure)
6.     belonging to ______________________________,
7.     with the intent to commit the crime of ___________________________ therein.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Nighttime Burglary, you may find ______________________________ guilty of Nighttime Burglary as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Nighttime Burglary, you shall find the Defendant ______________________________ not guilty.

COMMENT

BURGLARY

(nighttime entering without breaking)

1.     W.Va. Code §61-3-11.
2.     State v. Scarberry, 187 W.Va. 251, 418 S.E. 2d 361 (1992). This case discusses an unoccupied dwelling. Where the occupants leave without intention to return, a structure is no longer considered a dwelling house. See also State v. Blair, 112 W.Va. 655, 166 S.E. 369 (1932).
3.     State v. Louk, 169 W.Va. 24, 285 S.E. 2d 432 (1981). The elements of burglary are discussed.
4.     State v. Neff, 122 W.Va. 549, 11 S.E. 2d 171 (1940); State v. Crites, 110 W.Va. 36, 156 S.E. 2d 847 (1931). Outhouse adjoining a dwelling house is defined.
5.     State v. Ocheltree, 170 W.Va. 68, 289 S.E. 2d 742 (1982). Intent to commit a larceny or any felony therein may be inferred from the facts of the case.

BURGLARY

(nighttime breaking and entering)


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Nighttime Burglary. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Nighttime Burglary; and (2) not guilty.
    Burglary is committed when any person breaks and enters, or enters without breaking, either in the daytime or nighttime, a dwelling house or outhouse adjoining thereto, or occupied therewith of another person with the intent to commit a crime therein.
    "Dwelling house" shall include but not be limited to a mobile home, house trailer, modular home, factory-built home or self-propelled motor home, used as a dwelling regularly or only from time to time, or any other nonmotive vehicle primarily designed for human habitation and occupancy and used as a dwelling regularly or only from time to time.
    "_______________________________________" is committed when any person (elements and definition of offense intended to be committed inside the dwelling house)
_________________________________________________________________
_________________________________________________________________
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.

    Before the Defendant, ______________________________ can be convicted of Nighttime Burglary, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did break and enter, in the nighttime,
5.      the dwelling house (or other type residential structure)
6.      belonging to ______________________________,
7.      with the intent to commit the crime of _______________________________ therein.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Nighttime Burglary, you may find ______________________________ guilty of Nighttime Burglary as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Nighttime Burglary, you shall find the Defendant ______________________________ not guilty.

COMMENT

BURGLARY

(nighttime breaking and entering)


1.      W.Va. Code §61-3-11.
2.      State v. Scarberry, 187 W.Va. 251, 418 S.E. 2d 361 (1992). This case discusses an unoccupied dwelling. Where the occupants leave without intention to return, a structure is no longer considered a dwelling house. See also State v. Blair, 112 W.Va. 655, 166 S.E. 369 (1932).
3.      State v. Louk, 169 W.Va. 24, 285 S.E. 2d 432 (1981). The elements of burglary are discussed.
4.      State v. Neff, 122 W.Va. 549, 11 S.E. 2d 171 (1940); State v. Crites, 110 W.Va. 36, 156 S.E. 2d 847 (1931). Outhouse adjoining a dwelling house is defined.
5.      State v. Ocheltree, 170 W.Va. 68, 289 S.E. 2d 742 (1982). Intent to commit a larceny or any felony therein may be inferred from the facts of the case.

 

BURGLARY

(daytime breaking and entering)


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Burglary. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Burglary; and (2) not guilty.
    Burglary is committed when any person breaks and enters, or enters without breaking, either in the daytime or nighttime, a dwelling house or outhouse adjoining thereto, or occupied therewith of another person with the intent to commit a crime therein.
    "Dwelling house" shall include but not be limited to a mobile home, house trailer, modular home, factory-built home or self-propelled motor home, used as a dwelling regularly or only from time to time, or any other nonmotive vehicle primarily designed for human habitation and occupancy and used as a dwelling regularly or only from time to time.
    "______________________________________" is committed when any person (elements and definition of offense intended to be committed inside the dwelling house)
_________________________________________________________________
_________________________________________________________________
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.

    Before the Defendant, ______________________________ can be convicted of Burglary, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did break and enter, in the daytime,
5.      the dwelling house (or other type residential structure)
6.      belonging to ______________________________,
7.      with the intent to commit the crime of _____________________________ therein.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Burglary, you may find ______________________________ guilty of Burglary as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Burglary, you shall find the Defendant ______________________________ not guilty.

COMMENT

BURGLARY

(daytime breaking and entering)


1.      W.Va. Code §61-3-11.
2.      State v. Scarberry, 187 W.Va. 251, 418 S.E. 2d 361 (1992). This case discusses an unoccupied dwelling. Where the occupants leave without intention to return, a structure is no longer considered a dwelling house. See also State v. Blair, 112 W.Va. 655, 166 S.E. 369 (1932).
3.      State v. Louk, 169 W.Va. 24, 285 S.E. 2d 432 (1981). The elements of burglary are discussed.
4.      State v. Neff, 122 W.Va. 549, 11 S.E. 2d 171 (1940); State v. Crites, 110 W.Va. 36, 156 S.E. 2d 847 (1931). Outhouse adjoining a dwelling house is defined.
5.      State v. Ocheltree, 170 W.Va. 68, 289 S.E. 2d 742 (1982). Intent to commit a larceny or any felony therein may be inferred from the facts of the case.

BURGLARY

(daytime entering without breaking)


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Burglary. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Burglary; and (2) not guilty.
    Burglary is committed when any person breaks and enters, or enters without breaking, either in the daytime or nighttime, a dwelling house or outhouse adjoining thereto, or occupied therewith of another person with the intent to commit a crime therein.
    "Dwelling house" shall include but not be limited to a mobile home, house trailer, modular home, factory-built home or self-propelled motor home, used as a dwelling regularly or only from time to time, or any other nonmotive vehicle primarily designed for human habitation and occupancy and used as a dwelling regularly or only from time to time.
    "______________________________________" is committed when any person (elements and definition of offense intended to be committed inside the dwelling house) _______________________________________   __________________________
_________________________________________________________________
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.

    Before the Defendant, ______________________________ can be convicted of Burglary, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did enter without breaking, in the daytime,
5.      the dwelling house (or other type residential structure)
6.      belonging to ______________________________,
7.      with the intent to commit the crime of _____________________________ therein.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Burglary, you may find ______________________________ guilty of Burglary as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Burglary, you shall find the Defendant ______________________________ not guilty.

COMMENT

BURGLARY

(daytime entering without breaking)


1.      W.Va. Code §61-3-11.
2.      State v. Scarberry, 187 W.Va. 251, 418 S.E. 2d 361 (1992). This case discusses an unoccupied dwelling. Where the occupants leave without intention to return, a structure is no longer considered a dwelling house. See also State v. Blair, 112 W.Va. 655, 166 S.E. 369 (1932).
3.      State v. Louk, 169 W.Va. 24, 285 S.E. 2d 432 (1981). The elements of burglary are discussed.
4.      State v. Neff, 122 W.Va. 549, 11 S.E. 2d 171 (1940); State v. Crites, 110 W.Va. 36, 156 S.E. 2d 847 (1931). Outhouse adjoining a dwelling house is defined.
5.      State v. Ocheltree, 170 W.Va. 68, 289 S.E. 2d 742 (1982). Intent to commit a larceny or any felony therein may be inferred from the facts of the case.

 

BREAKING AND ENTERING

______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Breaking And Entering. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Breaking And Entering; and (2) not guilty.
    Breaking And Entering is committed when any person breaks and enters any office, shop, storehouse, warehouse, banking house or any house or building other than a dwelling house or outhouse adjoining thereto or occupied therewith, or any railroad or traction car, propelled by steam, electricity or otherwise, or any steamboat or other boat or vessel, with intent to commit a felony or any larceny therein.
    "Larceny" is committed when any person steals, takes and carries away personal property of another person without his consent with the intent to permanently deprive the owner of his property.
    "______________________________________" is committed when any person (elements and definition of offense intended to be committed inside the building)
_________________________________________________________________
_________________________________________________________________
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Breaking And Entering, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did (break and enter) (enter without breaking)
5.      (type of structure_______________________________________________) belonging to ______________________________________________,
6.      with the intent to commit ____________________________________ therein.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Breaking And Entering, you may find ______________________________ guilty of Breaking And Entering as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Breaking And Entering, you shall find the Defendant ______________________________ not guilty.

COMMENT

BREAKING AND ENTERING

1.      W.Va. Code §61-3-12.
2.      State v. Johnson, 179 W.Va. 619, 371 S.E. 2d 340 (1988); State v. Jacobs, 171 W.Va. 300, 298 S.E. 2d 836 (1982); State v. McCormick, 166 W.Va. 800, 277 S.E. 2d 629 (1981); Newcomb v. Coiner, 154 W.Va. 653, 178 S.E. 2d 155 (1970); State v. Johnson, 111 W.Va. 653, 164 S.E. 31 (1932); State v. Cooper, 111 W.Va. 255, 161 S.E. 30 (1930); State v. Flanagan, 48 W.Va. 115, 35 S.E. 862 (1900).

 

GRAND LARCENY


______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Grand Larceny. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Grand Larceny; and (2) not guilty.
    Grand Larceny is the unlawful and felonious stealing, taking and carrying away of the personal property of another person with the value of one thousand dollars or more, without the owner's consent, with the intent to permanently deprive the owner of his property.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Grand Larceny, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did unlawfully and feloniously steal, take and carry away,
5.      (thing taken ____________________________________________________,

6.      of a value of one thousand dollars or more,
7.      belonging to _________________________, and without his consent,
8.      with the intent to permanently deprive the owner ______________________________ of said property.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Grand Larceny, you may find ______________________________ guilty of Grand Larceny as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Grand Larceny, you shall find the Defendant ______________________________ not guilty.

COMMENT

GRAND LARCENY

1.      W.Va. Code §61-3-13.
2.      State v. Scarberry, 187 W.Va. 251, 418 S.E. 2d 361 (1992). Misnomer in the indictment as to the name of the victim is fatal where proof shows the property belonged to another person.
3.      State v. Houdeyshell, 174 W.Va. 688, 329 S.E. 2d 53 (1985). The crime of larceny remains a common law offense except that W.Va. Code §61-3-13 distinguishes between grand and petit larceny.
4.      Crow v. Coiner, 323 F. Supp. 555 (N.D. W.Va. 1971); State v. Chambers, 22 W.Va. 779 (1883). The elements of larceny are discussed in these cases.

 

 

GRAND LARCENY

(with lesser included offenses)

______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Grand Larceny. One of three verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Grand Larceny; (2) guilty of Petit Larceny and (3) not guilty.
    Grand Larceny is the unlawful and felonious stealing, taking and carrying away of the personal property of another person with the value of one thousand dollars or more, without the owner's consent, with the intent to permanently deprive the owner of his property.
    Petit Larceny is the unlawful stealing, taking and carrying away of the personal property of another person with the value of less than one thousand dollars without the owner's consent with the intent to permanently deprive the owner of his property.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Grand Larceny, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,

2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did unlawfully and feloniously steal, take and carry away,
5.      (thing taken) __________________________________________________,
6.      of a value of one thousand dollars or more,
7.      belonging to _________________________, and without his consent,
8.      with the intent to permanently deprive the owner ______________________________ of said property.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Grand Larceny, you may find ______________________________ guilty of Grand Larceny as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Grand Larceny, you shall find the Defendant ______________________________ not guilty of Grand Larceny (and deliberate on the lesser included offense of Petit Larceny as hereinafter instructed).
    Before the Defendant, ______________________________ can be convicted of Petit Larceny, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,

3.      on or about the _____ day of _______________, 199__,
4.      did unlawfully but not feloniously steal, take and carry away,
5.      (thing taken) ________________________________________________________,
6.      of a value of less than one thousand dollars,
7.      belonging to _________________________, and without his consent,
8.      with the intent to permanently deprive the owner ______________________________ of said property.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Petit Larceny, you may find ______________________________ guilty of Petit Larceny as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Petit Larceny, you shall find the Defendant ______________________________ not guilty.

COMMENT

GRAND LARCENY

(with lesser included offenses)

1.      W.Va. Code §61-3-13.
2.      State v. Scarberry, 187 W.Va. 251, 418 S.E. 2d 361 (1992). Misnomer in the indictment as to the name of the victim is fatal where proof shows the property belonged to another person.
3.      State v. Houdeyshell, 174 W.Va. 688, 329 S.E. 2d 53 (1985). The crime of larceny remains a common law offense except that W.Va. Code §61-3-13 distinguishes between grand and petit larceny.
4.      Crow v. Coiner, 323 F. Supp. 555 (N.D. W.Va. 1971); State v. Chambers, 22 W.Va. 779 (1883). The elements of larceny are discussed in these cases.

 

PETIT LARCENY

______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Petit Larceny. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Petit Larceny; and (2) not guilty.
    Petit Larceny is the unlawful stealing, taking and carrying away of the personal property of another person with the value of less than one thousand dollars without the owner's consent with the intent to permanently deprive the owner of his property.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Petit Larceny, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did unlawfully and feloniously steal, take and carry away,
5.      (thing taken) ______________________________________________________,
6.      of a value of less than one thousand dollars,

7.      belonging to _________________________, and without his consent,
8.      with the intent to permanently deprive the owner ______________________________ of said property.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Petit Larceny, you may find ______________________________ guilty of Petit Larceny as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Petit Larceny, you shall find the Defendant ______________________________ not guilty.

COMMENT

PETIT LARCENY


1.      W.Va. Code §61-3-13.
2.      State v. Scarberry, 187 W.Va. 251, 418 S.E. 2d 361 (1992). Misnomer in the indictment as to the name of the victim is fatal where proof shows the property belonged to another person.
3.      State v. Houdeyshell, 174 W.Va. 688, 329 S.E. 2d 53 (1985). The crime of larceny remains a common law offense except that W.Va. Code §61-3-13 distinguishes between grand and petit larceny.
4.      Crow v. Coiner, 323 F. Supp. 555 (N.D. W.Va. 1971); State v. Chambers, 22 W.Va. 779 (1883). The elements of larceny are discussed in these cases.

 

GRAND LARCENY (AUTO) (VEHICLE)

(with lesser included offenses)

______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Grand Larceny. One of four verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Grand Larceny; (2) guilty of Petit Larceny (3) Guilty of Unlawful Taking Of A Vehicle and (4) not guilty.
    Grand Larceny is the unlawful and felonious stealing, taking and carrying away of the personal property of another person with the value of one thousand dollars or more, without the owner's consent, with the intent to permanently deprive the owner of his property.
    Petit Larceny is the unlawful stealing, taking and carrying away of the personal property of another person with the value of less than one thousand dollars without the owner's consent with the intent to permanently deprive the owner of his property.
    Unlawful Taking Of A Vehicle, commonly called "joyriding" is committed when any person drives a vehicle not his own, without the consent of the owner and with the intent to temporarily deprive the owner of his possession of such vehicle and without the intent to steal the same.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Grand Larceny, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did unlawfully and feloniously steal, take and carry away,
5.      (thing taken) _____________________________________________________,
6.      of a value of one thousand dollars or more,
7.      belonging to _________________________, and without his consent,
8.      with the intent to permanently deprive the owner ______________________________ of said property.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Grand Larceny, you may find ______________________________ guilty of Grand Larceny as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Grand Larceny, you shall find the Defendant ______________________________ not guilty of Grand Larceny (and deliberate on the lesser included offense of Petit Larceny as hereinafter instructed).
    Before the Defendant, ______________________________ can be convicted of Petit Larceny, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did unlawfully and feloniously steal, take and carry away,
5.      (thing taken) _______________________________________________________,
6.      of a value of less than one thousand dollars,
7.      belonging to _________________________, and without his consent,
8.      with the intent to permanently deprive the owner ______________________________ of said property.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Petit Larceny, you may find ______________________________ guilty of Petit Larceny as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Petit Larceny, you shall find the Defendant ______________________________ not guilty of Petit Larceny (and deliberate on the lesser included offense of Unlawful Taking Of A Vehicle, commonly known as "joyriding").
    Before the Defendant, ______________________________ can be convicted of Unlawful Taking Of A Vehicle, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did drive a vehicle not his own, to-wit:_______ ______________________________,
5.      belonging to ___________________________________, and without his consent,
6.      with the intent to temporarily deprive the owner ______________________________ of his possession of said vehicle.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Unlawful Taking Of A Vehicle, you may find ______________________________ guilty of Unlawful Taking Of A Vehicle as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Unlawful Taking Of A Vehicle, you shall find the Defendant ______________________________ not guilty.

COMMENT

GRAND LARCENY (AUTO) (VEHICLE)

1.      W.Va. Code §61-3-13.
2.      State v. Scarberry, 187 W.Va. 251, 418 S.E. 2d 361 (1992). Misnomer in the indictment as to the name of the victim is fatal where proof shows the property belonged to another person.
3.      State v. Houdeyshell, 174 W.Va. 688, 329 S.E. 2d 53 (1985). The crime of larceny remains a common law offense except that W.Va. Code §61-3-13 distinguishes between grand and petit larceny.
4.      Crow v. Coiner, 323 F. Supp. 555 (N.D. W.Va. 1971); State v. Chambers, 22 W.Va. 779 (1883). The elements of larceny are discussed in these cases.
5.      W.Va. Code §17A-8-4.
6.      State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E. 2d 401 (1980); Crow v. Coiner, 323 F. Supp. 555 (N.D. W.Va. 1971). The former case holds that "joyriding" is a lesser included offense of grand larceny, overruling State v. Bailey, 159 W.Va. 167, 220 S.E. 2d 432 (1975).

 

UNLAWFUL TAKING OF A VEHICLE (Joyriding)

______________ INSTRUCTION NO. ____

    The offense charged in Count _____ of the Indictment in this case is Unlawful Taking Of A Vehicle. One of two verdicts may be returned by you under this Count of the Indictment. They are: (1) guilty of Unlawful Taking Of A Vehicle and (2) not guilty.
    Unlawful Taking Of A Vehicle, commonly called "joyriding" is committed when any person drives a vehicle not his own, without the consent of the owner and with the intent to temporarily deprive the owner of his possession of such vehicle and without the intent to steal the same.
    The burden is on the State to prove the guilt of the Defendant beyond a reasonable doubt and the Defendant, ______________________________ is not required to prove himself innocent. He is presumed by the law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant, ______________________________ can be convicted of Unlawful Taking Of A Vehicle, the State of West Virginia must overcome the presumption that the Defendant, ______________________________ is innocent and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.      The Defendant, ______________________________,
2.      in _______________ County, West Virginia,
3.      on or about the _____ day of _______________, 199__,
4.      did drive a vehicle not his own, to-wit: ___________________________________,
5.      belonging to _______________________________, and without his consent,

6.      with the intent to temporarily deprive the owner ______________________________ of his possession of said vehicle.
    If after impartially considering, weighing and comparing all the evidence, (both that of the State and that of the Defendant) the jury and each member of the jury is convinced beyond a reasonable doubt of the truth of the charge as to each of these elements of Unlawful Taking Of A Vehicle, you may find ______________________________ guilty of Unlawful Taking Of A Vehicle as charged in Count _____ of the indictment. If the jury and each member of the jury has a reasonable doubt of the truth of the charge as to any one or more of these elements of Unlawful Taking Of A Vehicle, you shall find the Defendant ______________________________ not guilty.

COMMENT

UNLAWFUL TAKING OF A VEHICLE

(Joyriding)


1.      W.Va. Code §17A-8-4.
2.      State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E. 2d 401 (1980); Crow v. Coiner, 323 F. Supp. 555 (N.D. W.Va. 1971). The former case holds that "joyriding" is a lesser included offense of grand larceny, overruling State v. Bailey, 159 W.Va. 167, 220 S.E. 2d 432 (1975).