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W. Va. Supreme Court of Appeals rules “no cognizable crime of attempted felony-murder in West Virginia”

On April 9, 2019, Justice Workman, delivering the opinion of the Court, reversed the Petitioner’s conviction for attempted first-degree murder under a felony-murder theory (“attempted felony-murder”), holding that there is no cognizable crime of attempted felony-murder in West Virginia.

By definition, felony-murder is the killing of someone during the commission of a violent felony. That is, if some is killed during the commission of a burglary, arson, robbery, rape, or kidnapping (“BAARK”), the offender and the offender’s accomplices or co-conspirators may be found guilty of first-degree murder.

In State v. Sanders, the Petitioner was indicted on eight counts in Raleigh County, WV, including attempted first-degree murder. The day before the trial, the State indicated that it would pursue the theory of attempted felony-murder against the Petitioner. The circuit court allowed the State to proceed with attempted first-degree-felony-murder. After hearing all of the evidence presented at trial, the jury convicted the Petitioner on the charge of attempted felony-murder. On appeal, the Petitioner argued that the crime of attempted felony-murder does not exist in the state. The Supreme Court agreed and reversed Petitioner’s conviction, holding that attempted felony-murder is not a cognizable crime under West Virginia law because the crime of attempt requires as one of its elements the specific intent to commit the underlying substantive crime and the only way that the transferred intent of felony-murder is achieved is if an actual homicide occurs.

Citation: State v. Sanders, Docket No. 17-0401 (W. Va. April 9, 2019)

Link to full opinion:

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