The West Virginia Supreme Court has issued an opinion that criminal accomplices during which a co-perpetrator is killed can't be charged with felony murder.

The state Supreme Court handed down its opinion Thursday afternoon. In its opinion, the court stated “…we hold that when a co-perpetrator is killed by the intended victim of a burglary during the commission of a crime, the surviving co-perpetrator cannot be charged with felony murder pursuant to West Virginia Code § 61-2-1.”

-UNEDITED: W.Va. Supreme Court of Appeals Nov. 8, 2012 opinion

The court’s opinion stems from a Weirton attempted burglary case that ended with one person being killed.

Police said in December 2011, at least two people tried to break in to the A & M Quick Mart, and the store owner, who also lives in the building, shot and killed one of the alleged robbers.

The store owner did not face charges, but Hancock County Assistant Prosecutor David Cross wanted an alleged co-actor in the burglary -- James Sands Jr. -- to be charged with felony murder.

The murder charge against Sands was dropped and Cross had appealed that ruling by taking it to the higher court. But now the original ruling stands and Sands is not facing a felony murder charge.

-PREVIOUS STORY: W.Va. Supreme Court hears case regarding fatal shooting in Weirton

“Upon our careful review of this issue, we agree with the circuit court’s decision that the offense of felony murder does not encompass the death of a co-perpetrator caused by the intended victim of a burglary attempt. Having found no error in the circuit court’s decision to dismiss the felony murder count, we find no basis for issuing a writ of prohibition,” the Supreme Court’s opinion states.

Because the Supreme Court has now ruled that the case did not fit the offense of felony murder, its decision on felony murder could set a precedent in the state.

In September, when the issue first went before the higher court, Cross told NEWS9, "The issue that's before the Supreme Court is one that's never been decided or addressed by the West Virginia Supreme Court, so whatever the court decides will be something that will be the law in all the counties in the state.”

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