In a parties charge, what is the authority for including the phrase "mere presence alone will not constitute one a party to an offense?" This language is is McClung's and every parties charge I've ever used but it's not in P.C. 7.02. Defense attorneys always seem to take advantage of this phrase arguing their client was simply present but not involved. To me, the language is not necessary since the State has to prove some conduct on the part of the defendant, i.e., soliciting, encouraging, directing, aiding, etc. in order for the defendant to be found guilty as a party. Any thoughts or law on this question?
I think you should leave it out. If your evidence only shows mere presence, the judge should grant an instructed verdict. Otherwise, it is up to the jury to decide if the defendant acted as a party under the legal definition.
I agree with Ken. I think this charge is given often just because it's found in McClungs but is not legally required. I have not done the research on this recently but my look at the caselaw in the past as I recall simply said it was not error to give the charge. I don't think it's mandated. I would be curious to know what the appellate experts out there think about this.
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