Ritchie v. StateRitchie v. State
- Reporters:
- , ,
- Before:
- Cooper
The appellant was charged with the offense of being an accomplice to murder in the first degree, in violation of
The only argument made by the State is that we should not consider the appellant’s argument because she has not abstracted her objection to the instruction. However, the State concedes that the appellant did object to the instruction and the objection was obviously overruled because the jury was instructed on the hindering apprehension issue. If we consider affirming for non-compliance with Ark. R. Sup. Ct. 9(e) to be unduly harsh, we may request the appellant to reprint his brief. However, because the State has conceded that the appellant objected, we find rebriefing to be unnecessary and that it would involve an unreasonable delay. Ark. R. Sup. Ct. 9(e)(2).
According to
(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
However, an offense is not a lesser included offense solely because a greater offense includes all the elements of the lesser offense. The lesser included offense doctrine additionally requires that the two offenses be of the same generic class and that the difference between the offenses be based upon the degree of risk or risk of injury to person or property or . else upon grades of intent or degrees of culpability. Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985); Shamlin v. State, 23 Ark. App. 39, 743 S.W.2d 1 (1988).
In overruling the appellant’s objection, the trial court observed that hindering apprehension was a form of the old accessory after the fact charge. While the trial court’s observation is correct, see Taylor v. State, 265 Ark. 822, 581 S.W.2d 328 (1979), it is not a lesser included offense to accomplice liability under the murder statutes. The present criminal code treats the concept of accessories differently from the common law and is consistent with the weight of authority. Under present law an accessory before the fact is an accomplice,
Because the appellant was not charged with hindering apprehension or prosecution and because it is not a lesser included offense, we find it was error for the trial court to instruct the jury on hindering apprehension and prosecution. Accordingly, we reverse.
Reversed.
Mayfield, and Cracraft, JJ., agree.