State v. Hoselton

179 W. Va. 645, 371 S.E.2d 366 (1988)



Merely witnessing a crime, without intervention, does not make a person a party to its commission unless his interference was a duty, and his noninterference was one of the conditions of the commission of a crime; or unless his noninterference was designed by him and operated as an encouragement to or protection of a perpetrator.


Defendant, who was with several of his friends, was charged by indictment as a principal in the first-degree for either breaking and entering or entering without breaking a storage unit on a docked barge with intent to commit larceny. His friends were indicted as a principal in the first-degree. In response to a question, defendant stated that "you could say" he was a lookout, and defendant testified that he was unaware of his friends' intent to steal until he heard the storage unit door open and saw his friends handling the goods. Defendant further testified that he then walked away and did not assist them in placing the goods in the automobile. Based upon such testimony, the trial court convicted defendant under § 61-3-12 for entering without breaking and denied defendant's motions for acquittal and for new trial. On appeal, the court reversed the trial court's judgment.


Was the evidence sufficient to establish that defendant was a lookout, therefore, the conviction for breaking and entering as a principal in the first degree should stand?




Defendant's response that "you could say" he was a lookout, did not establish that defendant was an aider and abettor by participating in, and wishing to bring about the entering with intent to commit larceny. Accordingly, the state failed to prove that defendant was a lookout or that he had entered the vessel with the shared intent to commit larceny.

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