Ruffin v. Commonwealth

• Citation: 62 Va. 790
• Parties: RUFFIN v. THE COMMONWEALTH.
• Decision Date: 11 November 1871
• Court: Supreme Court of Virginia

62 Va. 790

RUFFIN v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 11, 1871

1. A penitentiary convict is hired to work on a railroad, and in Bath county, in attempting to escape, he kills the man put by the contractor to guard him. He may be tried for the offence before the Circuit court of the city of Richmond, and by a jury summoned from the city.

2. The bill of rights, though made a part of the present constitution, has the same force and authority, and no more than it has always had. And the principles which it declares have reference to freemen, and not to convicted felons.

3. A convicted felon has only such rights as the statutes may give him.

4. A person convicted of felony and sentenced to confinement in the penitentiary, is, until the time of his imprisonment has expired, or he has been pardoned, in contemplation of law, in the penitentiary, though he may have been hired out to work on a railroad, or the like, in a distant county; and the laws relating to convicts in the penitentiary apply to him.

At the November term for 1870 of the Circuit court of the city of Richmond, Woody Ruffin was indicted for the murder of Lewis F. Swats. The prisoner was tried by a jury taken from the city of Richmond; to which he objected; and he insisted that either he should be sent to the county of Bath for trial where the offence was alleged to have been committed, or that a venire should be issued to that county, to bring a jury from thence for his trial. But the court overruled the objection.

Upon his trial it appeared that the prisoner had been convicted of a felony and sentenced to confinement in the penitentiary that whilst he was such a convict in the penitentiary, he was, under the act of the General Assembly of April 23d 1870, hired out to work upon the Chesapeake and Ohio railroad; that whilst so employed on the said railroad on the 10th of July 1870, in the county of Bath, where the offence was committed, the prisoner was not under any regular officer or guard of the penitentiary, nor any officer or employee of the Commonwealth; but was under the charge of contractors on the railroad, to whom he had been hired, and held in custody by a guard appointed and employed by said contractors; and that Swats, who was killed, was neither an officer or employee of the penitentiary or of the Commonwealth; but he was killed whilst guarding the prisoner, under his employment to do so by the contractor.

The jury found the prisoner guilty of murder in the first degree; and the court sentenced him to be hung: and he thereupon applied to this court for a writ of error; which was awarded.

The only questions made in the cause in this court was, that the prisoner should have been sent to the county of Bath for trial, or a jury should have been brought from that county; and this question was raised on the record in several modes.

Christian and Stiles, for the prisoner.

The Attorney General, for the Commonwealth.

OPINION

CHRISTIAN, J.

This is a writ of error to a judgment of the Circuit court of the city of Richmond. The record discloses the following state of facts:

Woody Ruffin, a convict in the penitentiary, was hired out, with other convicts, in accordance with the provisions of an act of Assembly approved April 23d, 1870, (Sess. Acts 1869-'70, p. 72,) to work on the Chesapeake and Ohio Railroad. While thus engaged in the county of Bath, he killed, in an attempt to make his escape, one Louis F. Swats, who was acting as a guard of the convicts thus employed. For this offence he was tried in the Circuit court of the city of Richmond, by a jury selected from a venire from said city, and was found guilty of murder in the first degree, and was sentenced by said court to be hung on the 25th day of May 1871. To this judgment a writ of error was allowed by this court.

The only question presented for the consideration of this court now (other errors assigned in the petition not being insisted upon here,) is, whether the court below was in error in putting the prisoner upon his trial before a jury selected from a venire summoned from the city of Richmond. It was earnestly insisted, in the able and eloquent arguments of the counsel for the prisoner, that the said Circuit court ought either to have sent the prisoner to the county of Bath, where the offence was committed, to be tried before the County court of that county, or should have sent to that county for a jury, before whom the prisoner should have been tried. This question raised in different forms, first by a demurrer to the indictment; secondly, by instructions asked for by the prisoner's counsel, and thirdly, by a motion in arrest of judgment, is the only one necessary to be considered.

The learned counsel for the prisoner, in support of their positions invoke the authority of the bill of rights which is now incorporated in, and made a part of the Constitution of the State; and which declares, among other declarations of personal and political rights, " that in all capital or criminal prosecutions, a man hath a right to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty." And it is insisted that those enactments of the statute law which confer upon the Circuit court of the city of Richmond jurisdiction to try offences committed by convicts in the penitentiary (except those committed within the territorial limits of that jurisdiction), are in contravention of the bill of rights and the constitution, and are therefore void.

The 3rd section of ch. 158, (Code 1860, page 666,) which prescribes the jurisdiction of the Circuit court of the city of Richmond, declares that said court shall have jurisdiction of all criminal proceedings against convicts in the penitentiary.

The 1st section of chapter 215, " concerning proceedings in criminal cases against convicts," declares that all proceedings against convicts in the penitentiary shall be in the Circuit court for the city of Richmond; and provides the mode of summoning a grand jury and a venire, for the indictment and trial of such offenders.

The 3rd section of ch. 215, (Code, page 859,) declares that a convict guilty of killing an officer or guard of the penitentiary, shall be punished with death.

An act of the General Assembly, approved April 23d, 1870, provides " that it shall be lawful for the governor of the Commonwealth to hire out, as in his judgment may be proper such able-bodied convicts in the penitentiary, whose terms of service at the time of hiring do not exceed ten years, as can be spared from the workshops therein, to responsible persons, to work in stone quarries, or upon any railroad or canal in this State, or for any other suitable labor; " and makes it the duty of the governor in executing this act, to provide for the safe keeping and return to the penitentiary of convicts hired or employed under its provisions. The prisoner was one of a number of convicts hired under the provisions of this act, on the Chesapeake and Ohio railroad. Though at the time of the commission of the murder of which he was convicted, he was not within the walls of the penitentiary, but in a distant part of the State, he was yet, in the eye of the law, still a convict in the penitentiary; not, indeed, actually and bodily within its walls, imprisoned and physically restrained by its bars and bolts; but as certainly under the restraints of the laws, and as actually bound by the regulations of that institution, as if he had been locked within one of its cells. ...