Hancock County Circuit Judge Fred Fox II was right, beyond any shadow of doubt, to dismiss a first-degree murder charge against an alleged burglar this week. Had the case gone to trial and a conviction been returned, it would have been overturned on appeal to the state Supreme Court.
A Dec. 12 tragedy led to filing of the charge. On that night, according to police, three 18-year-old Follansbee residents attempted to steal imitation marijuana from the A&M Quick Stop in Weirton. One, Chelsea Metz, waited in a car while James Sands II and Dakota Givens allegedly tried to burglarize the store.
Store owner Maher A. Alwishah lives in the building, and he shot Givens as the youth was entering a window. Givens died.
Earlier this year Metz pleaded guilty to misdemeanor obstruction. Charges of burglary and conspiracy against her were dismissed. She was fined $50.
Charges against Sands included burglary, conspiracy and first-degree murder. The murder charge was filed under a state law in which the perpetrator of a crime can be prosecuted if it results in a death.
As Fox pointed out in dismissing the murder charge, it was not the state Legislature's intent for the statute to affect those whose co-conspirators die in the commission of crimes. The idea was to target those who kill the victims of other offenses.
In fact, the state Supreme Court, in a 1991 case, set something of a precedent. It ruled the law in question was not intended to apply "if the only death which occurred in the commission of the underlying felony was the suicide of a co-conspirator in the criminal enterprise."
Obviously, none of those involved intended for a young man to die on Dec. 12. But the crime he and Sands allegedly were trying to commit is a serious one - in which there always is great risk of injury or death. For that reason, burglary and conspiracy charges against Sands should be pursued vigorously.