State v. C. J. S.

263 S.E.2d 899, 164 W. Va. 473, 1980 W. Va. LEXIS 495
CourtWest Virginia Supreme Court
DecidedMarch 18, 1980
DocketNo. 14438
StatusPublished
Cited by18 cases

This text of 263 S.E.2d 899 (State v. C. J. S.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. C. J. S., 263 S.E.2d 899, 164 W. Va. 473, 1980 W. Va. LEXIS 495 (W. Va. 1980).

Opinions

Harshbarger, Justice:

This appeal by C. J. S., sixteen years old at the time of his alleged offense, challenges his transfer from the juvenile to the criminal jurisdiction of the Circuit Court of Berkeley County. We reverse and remand for a new transfer hearing consistent with this opinion.

On November 16, 1978, a person armed with a handgun robbed Ellinger’s Market, a combination store and gas station located in Berkeley County. Several days later our state police were notified by the Albemarle, North Carolina police department that one of three juveniles in custody on a North Carolina charge had given a statement implicating the three in the robbery.

Two troopers went to North Carolina to question the juveniles and returned them to West Virginia. Juvenile petitions were filed against them; the petition against C. J. S. stated that one E. P. robbed Ellinger’s Market of $4,966.59, and C. J. S. “did then and there feloniously, wilfully, maliciously, deliberately, and knowingly encite, move, procure, aid, abet, counsel, hire and command the said * * * [E. P.] to do and commit the said felony and robbery in the manner and form aforesaid.”

A transfer hearing was held on December 8, 1978 after which the trial judge found that the alleged offenses were crimes of violence and would be felonies if committed by adults; that there was probable cause to believe that E. P. committed the robbery and that C. J. S. aided and abetted; that neither juvenile exhibited evidence of mental disease or physical impairment; that neither was [475]*475amenable to parental control or discipline; and that his resources and remedies to deal with them were severely limited. Considering all these factors, the court waived its juvenile jurisdiction and transferred the youths to circuit court for prosecution as adults.

C. J. S. argues that there was no finding of fact that he committed robbery as defined in W. Va. Code, 49-5-10(d)(1) and that the state failed to meet Code, 49-5-10(a) and (d) mandates that it prove clearly and convincingly that his mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors, allowed transfer.

I.

In 1977, the Legislature amended our juvenile proceedings statute. If a criminal actor is less than eighteen years old at the time of an alleged offense, the case is immediately certified to the circuit court’s juvenile jurisdiction.1

The same act provides for transfer of certain cases from junvenile jurisdiction back to the criminal side.2 [476]*476Section 10, dealing with this transfer, was again amended in 1978. We have held, both prior and subsequent to this latter amendment, that such transfers should be the exception and not the rule. State v. Bannister, _ W.Va. _, 250 S.E.2d 53 (1978); State ex rel. Smith v. Scott, _ W.Va. _, 238 S.E.2d 223 (1977). As Justice McGraw wrote in State v. M. M., _ W.Va. _, 256 S.E.2d 549, 556-557 (1979), “[t]he decision to try a juvenile as an adult has enormous and lifelong consequences for the child and for society. The right to be treated as a juvenile is a valuable right.”

Code, 49-5-10(d) provides, in relevant part:

(d) The court may, upon consideration of the child’s mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors, transfer a juvenile proceeding to criminal jurisdiction if there is a probable cause to believe that:
(1) The child has committed the crime of treason under section one [§ 61-1-1], article one, chapter sixty-one of this Code; the crime of murder under sections one, two and three [§§ 61-2-1, 61-2-2 and 61-2-3], article two, chapter sixty-one of this Code; the crime of robbery involving the use or presenting of firearms or other deadly weapons under section twelve [§ 61-2-12], article two, chapter sixty-one of this Code; the crime of kidnap[477]*477ping under section fourteen-a [§ 61-2-14a], article two, first degree arson under section one [§ 61-3-1], article three, chapter sixty-one of this Code... and in such case, the existence of such probable cause shall be sufficient grounds for transfer without further inquiry... (Emphasis added.)
(4) A child, sixteen years of age or over, has committed an offense of violence to the person which would be a felony if committed by an adult.... (Emphasis added.)

We do not agree with C. J. S. that aiding and abetting an armed robbery is a separate crime from committing an armed robbery and that he is therefore not subject to transfer. Although the elements of proof for aiding and abetting are different and the crimes require separate treatment in indictments,3 an aider and abettor has consistently been held to be as criminally responsible for a crime as the criminal actor. The former is a principal in the second degree, the latter a principal in the first degree. State ex rel. Brown v. Thompson, 149 W.Va. 649, 142 S.E.2d 711 (1965), cert. denied, 382 U.S. 940, 86 S.Ct. 392, 15 L.Ed.2d 350, and cases cited therein. Judge Raymond’s extensive analysis of the problem made clear that:

[A] person is guilty as a principal in the second degree when he aids and abets the actual perpetrator or the principal in the first degree in the commission by such perpetrator of a common law offense which is also a statutory crime.... Id., 149 W.Va. at 654.

An aider and abettor has committed the crime as much as the principal in the first degree, and is subject to the same punishment as the principal felon.4

[478]*478Applying a similar juvenile transfer statute in New Jersey,5 the Appellate Division of the Superior Court of New Jersey found that a juvenile charged as an aider and abettor to an armed robbery could be transferred. State in Interest of R.L.P., 159 N.J. Super. 267, 387 A.2d 1223 (1978). We agree with the reasoning, also found in State in Interest of B. T., 145 N.J. Super. 268, 276, 367 A.2d 887, 891 (1976), that an aider and abettor is equally as guilty as a principal and “as amenable to the transfer process as his cohort....”

The order entered included a finding that there was probable cause to believe C. J. S. aided and abetted the robbery.6 Therefore he may be transferred.7

[479]*479II.

The first paragraph of Code, 49-5-10(d) supra, requires a court to consider a child’s mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors before transfer.

Here is the court’s total effort to comply with this requirement:

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Bluebook (online)
263 S.E.2d 899, 164 W. Va. 473, 1980 W. Va. LEXIS 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-c-j-s-wva-1980.