dissenting in Record No. 831788.
I agree that the evidence is sufficient to support Raymond Sutton’s conviction. I do not agree, however, that the evidence is sufficient to convict Virginia Sutton as a principal in the second degree.
An accessory before the fact is one who is absent at the commission of the offense but is “ ‘in some way concerned therein . . . as [a] contriver, instigator or advisor.’ ” Tolley v. Commonwealth, 216 Va. 341, 348, 218 S.E.2d 550, 555 (1975) (quoting Foster v. Commonwealth, 179 Va. 96, 99, 18 S.E.2d 314, 315 (1942)). See also McGhee v. Commonwealth, 221 Va. 422, 425-26, 270 S.E.2d 729, 731 (1980). On the other hand, a principal in the second *670degree is one who is present at a crime’s commission and commits some overt act, such as inciting, encouraging, advising, or assisting in its commission or shares the perpetrator’s criminal intent. Moehring v. Commonwealth, 223 Va. 564, 567, 290 S.E.2d 891, 892 (1982). Thus, there is a clear distinction between the two offenses. In the former, the accused must be absent during commission of the principal offense; in the latter, the accused must be present.
It is true, as the majority states, that when one is indicted as a principal in the second degree, proof of mere constructive presence, as opposed to actual presence, is sufficient. To constitute constructive presence, however, there must be evidence that the accused is keeping watch or guard “at proper distances and stations, to prevent a surprise, or to favor, if need be, the escape of those who are more immediately engaged.” Dull’s Case, 66 Va. (25 Gratt.) 965, 977 (1875). See also Ward v. Commonwealth, 205 Va. 564, 568, 138 S.E.2d 293, 296 (1964); Snyder v. Commonwealth, 202 Va. 1009, 1015, 121 S.E.2d 452, 457 (1961).
Virginia Sutton was not indicted as a principal in the first degree* or as an accessory before the fact. Instead, she was indicted as “a principal in the second degree to rape.” Therefore, an essential element of the offense charged was her presence at the crime’s commission.
The record is devoid of any evidence of the accused’s presence, actual or constructive. To the contrary, the undisputed evidence establishes that at all times before and during the commission of the offense, she was in another room, in bed, and quite probably asleep. There is no evidence that she even knew that the crime was being committed, and, clearly, she was not so situated that she could keep watch or guard “to prevent a surprise, or to favor, if need be, the escape of [her husband].”
Although Virginia Sutton’s conduct was reprehensible, in my opinion, the evidence is insufficient to prove beyond a reasonable doubt that she was a principal in the second degree. Therefore, I would reverse her conviction and dismiss the indictment.
COMPTON, J., joins in dissent.
Had she been indicted as a principal in the first degree, she could have been convicted as an accessory before the fact. See Code § 18.2-18, which reads in pertinent part: “In the case of every felony, every principal in the second degree and every accessory before the fact may be indicted, tried, convicted and punished in all respects as if a principal in the first degree; . . . .”