Sometimes people are be charged with committing a crime, even if they do not actually perpetrate the actual crime. It sounds strange, but if you assist or encourage someone to commit a crime, you can be charged with the same crime as the person who actually commits the crime. Unfortunately, many criminal defendants think because they were not the one who actually committed the offense that they are not guilty of a crime. But this is not always the case.
Va. Code § 18.2-18 allows a person who acts as a principal in the second degree or an accessory before the fact to “be indicted, tried, convicted and punished in all respects as if a principal in the first degree,” except in certain murder cases.
What is a principal in the first and second degree?
Principal in the first degree: When a crime involves more than one perpetrator, the individual who actually commits the crime is the principal in the first degree. For example, three individuals go to a store to rob it. One goes inside with the gun, points it at the store clerk, and empties the cash register. The second individual is by the door looking out while the third person is in the car as the getaway driver. The one who robbed the clerk acted as the principle in the first degree to robbery, because he is the one who actually robbed the clerk by (1) taking of money that was not his, (2) from the clerk, (3) by means of threat, force or intimidation (4) with the intention to permanently deprive the clerk of the money. These are the elements of robbery. See Fagan v. Commonwealth, 63 Va. App. 395, 398 (2014)
Principal in the second degree: The principal in the second degree is not the perpetrator (i.e., the one who actually commits the crime) but the individual or individuals who are present and help the principal in the first degree commit the crime. In the robbery example, that would be the individual who stood by the door as the lookout, and the individual in the car serving as a getaway driver. The elements of acting as a principal in the second degree are:
- Presence at the scene of the crime
- Consent to the felonious purpose (i.e., that you share the criminal intent of the principal)
- Contribute to its execution (i.e., that you do some an overt act in furtherance of the commission of the crime).
What constitutes an accessory before the fact?
An accessory before the act would be an individual who knowingly and voluntarily participated in the commission of a crime before it is committed. To illustrate, if we add another individual to the robbery scenario, one who voluntarily provides the principal with the gun knowing that it would be used in a crime, he is now an accessory to the robbery before the fact.
Can a principal in the second degree be convicted if the principle in the first is acquitted?
The short answer is yes. This is exactly what the Virginia Court of Appeals held in Ferrell v. Commonwealth, 62 Va. App. 142 (2013). In upholding Ferrell's malicious wounding conviction as a principal in the second degree where the principal in the first was acquitted, the appeals court said, "The guilt or innocence of the principal in the second degree must rise or fall entirely on the evidence presented at his own trial." Id. at 151.
Charlottesville Defense Lawyer
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