Appeal from a judgment of the Circuit Court of Isle of Wight County. Hon. E. Everett Bagnell, judge presiding.
Carrico, C.J., Cochran, Poff, Compton, Thompson, and Stephenson, JJ., and Harrison, Retired Justice. Harrison, R.j., delivered the opinion of the Court. Thompson, J., dissenting. Carrico, C.J., joins in dissent.
The defendant, William Eugene Moehring, contends that the evidence is insufficient to sustain his conviction of grand larceny.
On Saturday night, March 22, 1980, Samuel Faison, then a resident of Portsmouth, attended a private party near Smithfield. Faison drank heavily at the party and either "fell asleep or passed out." When he awakened between 3 a.m. and 4 a.m. and discovered that he had no transportation to Portsmouth, he started hitchhiking.
At approximately 6 a.m. Sunday morning, March 23, James Keeling, a commercial fisherman, drove his pickup truck south along U.S. Highway 17 near Bailey's Service Station. Route 17 is a four-lane divided highway running generally north to Newport News and south to Portsmouth. Keeling turned left from the southbound lanes of the highway into a cross-over to reach the service station to purchase gasoline. At that time he saw Faison and Moehring walking together in the southbound lane and "thumbing" a ride. After obtaining gas, Keeling "went in to pay the lady," leaving his keys in the truck. While inside, he looked through a window and saw Faison in his truck preparing to leave the station. Keeling ran out of the station yelling at Faison to stop, but by then Faison had driven the truck out of the station area and was headed north. Keeling testified that while the theft was in progress Moehring "was still across the road, thumbing or whatever, walking in the road." Keeling called to Moehring to find out Faison's identity. Moehring replied that he "did not know the guy's name."
Faison drove the stolen vehicle to the intersection of Route 17 and the Benns Church Road, made a left turn and disappeared from Keeling's sight. Faison testified that when he realized he was headed in the wrong direction to go to his home in Portsmouth, he turned around, retraced his route, and drove south on Route 17 and past Bailey's Service Station. Keeling said that about a hundred yards "down the road" from the station, Faison stopped abruptly, picked up Moehring, and continued south on Route 17.
The theft was immediately reported to the police, and a Suffolk police officer stopped the truck shortly thereafter. The arresting officer testified at trial that both Faison and Moehring told him that they had been to a party the night before and were walking back together. However, in their written statements to the police,
given separately and shortly after their arrest, each man denied any previous acquaintance with the other. Faison testified at trial that he alone was responsible for taking the truck; that Moehring had no part in the planning of the event; and that he did not tell Moehring the vehicle had been stolen until the police chase resulted, at which time Moehring implored him to stop the vehicle.
In announcing its oral decision, the trial court, although acknowledging that the presence and flight of Moehring were not sufficient to sustain a conviction of the defendant, held the evidence to be sufficient because "in the particular instance, Mr. Moehring -- testimony is, and credible testimony is -- was present when he saw the vehicle being taken, and he left the scene. And he didn't just leave, but he left in the very vehicle that was stolen from the scene, that he saw it was stolen."
The Commonwealth argues that the evidence is sufficient to support defendant's conviction for grand larceny, either as a principal in the second degree or as one in the joint possession of stolen property.
[1-2] A principal in the second degree is one who is not only present at a crime's commission, but one who also commits some overt act, such as inciting, encouraging, advising, or assisting in the commission of the crime or shares the perpetrator's criminal intent. Murray v. Commonwealth, 210 Va. 282, 170 S.E.2d 3 (1969); Triplett v. Commonwealth, 141 Va. 577, 127 S.E. 486 (1925); W. LaFave & A. Scott, Handbook on Criminal Law 497 (1972). Mere presence during the commission of a crime and subsequent flight do not constitute sufficient evidence to convict a person as a principal in the second degree. Grant v. Commonwealth, 216 Va. 166, 217 S.E.2d 806 (1975); Whitbeck v. Commonwealth, 210 Va. 324, 170 S.E.2d 776 (1969).
 The Commonwealth's evidence and the reasonable inferences deducible from that evidence do not establish that Moehring aided Faison in the theft or that he shared Faison's intent to deprive Keeling of his truck. All that the prosecution proved was that two men were observed walking south along Route 17 in the early morning hours of March 23, 1980; that each was attempting to "thumb" a ride from passing motorists; that one of the men, Faison, apparently despaired of success, left his fellow hitchhiker and went across the highway and stole a truck; ...