Proposed Jury Instructions for Principals  

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).

PRINCIPAL: ACCESSORY BEFORE THE FACT

__________ INSTRUCTION NO. _____

    The offense charged in Count _____ of the Indictment in this case is: _______________________________________________________. One of two verdicts may be returned by you under this Indictment. They are (1) guilty; and (2) not guilty.
    The Court instructs the jury that a person who is the absolute perpetrator of a crime is a principal in the first degree. The Court further instructs the jury that a person who is not actually or constructively present at the time and place of the commission of the criminal act by the absolute perpetrator, but who counseled, procured, planned, instigated or commanded the criminal act is an accessory before the fact to the criminal act and as such may be criminally liable for the criminal act as if he were the absolute perpetrator of the crime.
(underlying criminal offense)__________________________________________ is committed when any person (elements of underlying criminal offense) __________________________________________ ______________________________________________________________________________.     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 trail.
    Before the Defendant ______________________________ can be convicted of being an Accessory Before The Fact To _______________ _________________________________, 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 knowingly (counsel) (procure) (plan) (instigate) (command),
5.     (absolute perpetrator) ________________________________________,
6.     to commit (underlying offense) __________________________________________________,
7.     and that on the _____ day of _______________, 199__,
8.     in _______________ County, West Virginia,
9.     (absolute perpetrator) __________________________________________,
10.     did (elements of underlying offense) ____________________________________ _______________________________________________________________________.
11.     and that the Defendant ______________________________ was not actually or constructively present at the time and place of the commission of the ___________________________________________________________________.
    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 these elements of being an Accessory Before The Fact To (underlying offense) ______________________________, you may find the Defendant ______________________________ guilty of being an Accessory Before The Fact To (underlying offense) ______________________________. 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 being an Accessory Before The Fact To (underlying offense) ___________________________________, you shall find the Defendant ______________________________ not guilty.

COMMENT

PRINCIPAL: ACCESSORY BEFORE THE FACT


1.     W.Va. Code §61-11-6 and 7.
2.     State v. Davis, 182 W.Va. 482, 388 S.E. 2d 508 (1989); State v. Petry, 166 W.Va. 153, 273 S.E. 2d 346 (1980); State v. Nicholson, 162 W.Va 750, 252 S.E. 2d 894 (1979); State v. Grimmer, 162 W.Va. 588, 251 S.E. 2d 780 (1979); State ex rel. Brown v. Thompson, 149 W.Va. 649, 142 S.E. 2d 711, cert. denied 382 U.S. 940, 86 S. Ct. 392, 15 L. Ed. 2d 350 (1965).

 

PRINCIPAL: ACCESSORY AFTER THE FACT

__________ INSTRUCTION NO. _____

    The offense charged in Count _____ of the Indictment in this case is Accessory After The Fact To: ____________________________________________________________. One of two verdicts may be returned by you under this Indictment. They are (1) guilty; and (2) not guilty.
Accessory After The Fact To: _________________________________________ is committed when any person, other than a person in the relationship of husband, wife, parent, grandparent, child, grandchild, brother or sister, to the perpetrator of the felony offense, shall receive, relieve, comfort, assist or in any manner aid the perpetrator of the felony to escape from prosecution, arrest or punishment, knowing that the such other person has committed the felony offense.
    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 trail.
    Before the Defendant ______________________________ can be convicted of being an Accessory After The Fact To _______________________________________________, 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 (receive) (relieve) (comfort) (assist) (aid),
5.      (felon) _______________________________________,
6.      to escape from (arrest) (prosecution) (punishment),
7.      knowing that (felon) ___________________________________, (had committed) (was charged with) (felony offense) ________________________________,
8.      and that the defendant not being related by blood or marriage or husband, wife, parent, grandparent, child, grandchild, brother or sister to (felon) ______________________________.
    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 these elements of being an Accessory After The Fact To (underlying offense) ______________________________, you may find the Defendant ______________________________ guilty of being an Accessory After The Fact To (underlying offense) ______________________________. 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 being an Accessory After The Fact To (underlying offense) ___________________________________, you shall find the Defendant ______________________________ not guilty.

COMMENT

PRINCIPAL: ACCESSORY AFTER THE FACT


1.      W.Va. Code §61-11-6 and 7.

 

PRINCIPAL: AIDER AND ABETTOR

__________ INSTRUCTION NO. _____

    The offense charged in Count _____ of the Indictment in this case is: __________________________________________________________. One of two verdicts may be returned by you under this Indictment. They are (1) guilty; and (2) not guilty.
    The Court instructs the jury that a person who is the absolute perpetrator of a crime is a principal in the first degree. The Court further instructs the jury that a person who is actually or constructively present at the scene of a crime at the same time as the criminal act of the absolute perpetrator, who acts with shared criminal intent, contributing to the criminal act of the absolute perpetrator, is an aider and abettor, and a principal in the second degree, and as such may be criminally liable for the criminal act as if he were the absolute perpetrator of the crime. Actual physical presence at the scene of the criminal act is not necessary where the aider and abettor was constructively present at a convenient distance at the time and place of the criminal act, acting in concert with the absolute perpetrator. However, you are cautioned that merely witnessing a crime without intervention therein does not make a person a party to its commission unless his interference was a duty, and his non-interference was designed by him and operated as an encouragement to or protection of the absolute perpetrator of the criminal act.
(underlying criminal offense)____________________________________ is committed when any person (elements of underlying criminal offense) ______________________________________________ _____________________________________________________________________________.
    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 trail.
    Before the Defendant ______________________________ can be convicted of being an Aider and Abettor To _______________________________________________, 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.      while (actually present) (constructively present) at the time and place of the commission of (underlying criminal offense)_____________________________________________,
5.      did knowingly aid and abet,
6.      (absolute perpetrator) ____________________________________,
7.      to commit (underlying criminal offense) ________________________________________,
8.      in that (absolute perpetrator),
9.      did then and there (elements of underlying offense) ___________________ ______________________________________________________________________.
    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 these elements of being an Aider and Abettor to (underlying offense) ______________________________, you may find the Defendant ______________________________ guilty of being an Aider and Abettor to (underlying offense) ______________________________. 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 being an Aider and Abettor To (underlying offense) ______________________________________, you shall find the Defendant ______________________________ not guilty.

COMMENT

PRINCIPAL: AIDER AND ABETTOR


1.      W.Va. Code §61-11-6.
2.      State v. Lola Mae C., 185 W.Va. 452, 408 S.E. 2d 31 (1991); State v. Reedy, 177 W.Va. 406, 352 S.E. 2d 153 (1986).
3.      State v. Davis, 182 W.Va. 482, 484, 388 S.E. 2d 508, 510 (1989); State v. Fortner, 182 W.Va. 345, 346, 387 S.E. 2d 812, 823 (1989); State v. Haines, 156 W.Va. 281, 192 S.E. 2d 879 (1972). Syllabus Point 3 "Merely witnessing a crime without intervention does not make a person a party to its commission unless his intervention was a duty, and his non-interference was one of the conditions of the crime; or unless his non-interference was designed by him and operated as an encouragement to or protection of the perpetrator." State v. Patterson, 109 W.Va. 588, 155 S.E. 661 (1930), Syllabus Point 1.
4.      State v. Fortner, Supra.; State v. Harper, 179 W.Va. 24, 29, 365 S.E. 2d 69, 74 (1987). "The State must demonstrate that the defendant 'shared the criminal intent of the principal in the first degree'. In this regard, the accused is not required to have intended the particular crime committed by the perpetrator, but only to have knowingly intended to assist, encourage or facilitate the design of the criminal actor."
5.      State v. Fortner, 182 W.Va. 345, 355, 387 S.E. 2d 812, 822 (1989); State v. Nicholson, 162 W.Va. 750, 753-754, 252 S.E. 2d 894, 896 (1979). Actual physical presence at the scene of the criminal act is not required to be an aider and abettor. Rather constructive presence, as where one is a lookout or a guard at some convenient distance, will suffice.