In Heyliger v. People of the Virgin Islands, 2017 V.I. Supreme LEXIS 9, a defendant in a felony murder case pinned his appellate hopes in part on a grammatical nicety, but failed to persuade the Supreme Court of the Virgin Islands of his point of view.
The defendant was charged under V.I. Code Ann. tit. 14, § 922(a)(2), the felony murder statute, based on the underlying offense of third-degree assault. He argued that because the statute contained no serial comma between “assault in the third degree” and “larceny,” this required that these two crimes be charged as a unified offense.
The court rejected this argument as “specious.” After noting the definition of the serial comma by Bryan Garner in The Elements of Legal Style as “the comma that separates items, including the last from the next to last, in a list of more than two,” it observed that while the comma’s main purpose was to avoid ambiguity, many grammarians regarded its use as discretionary. For that reason, the court stated, while “use of a serial comma can aid in statutory interpretation, caution should be exercised in utilizing it.” Moreover, the court wrote, finding that the Virgin Islands legislature intended “assault in the third degree and larceny” to be one predicate felony would be a “superfluous and highly outlandish reading of the statute,” whereas “an interpretation utilizing the conjunction ‘and’ as the final separator in a list of more than two predicate unlawful acts . . . reveal[ed] a more natural and sensible interpretation and understanding of the statute.” The court also stated that nothing in the statute’s legislative history indicated that the legislature intended “assault in the third degree and larceny” to be a single felony.
Having rejected the defendant’s other arguments and upheld his convictions, the court concluded, “Although the drafters . . . were less than precise when they failed to include the optional serial comma between ‘assault in the third degree’ and ‘and larceny’ the statute is nevertheless clear and unambiguous that first-degree felony murder can be predicated solely upon assault in the third degree.”
Lexis subscribers can access the opinion at: Heyliger v. People of the Virgin Islands, 2017 V.I. Supreme LEXIS 9 (VI. 2017)
Lexis Advance subscribers can find the opinion at: Heyliger v. People of the Virgin Islands, 2017 V.I. Supreme LEXIS 9 (VI. 2017)
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