State v. Dignan

• Decision Date: 31 October 1933
• Docket Number: 7657.
• Citation: 171 S.E. 527,114 W.Va. 275
• Parties: STATE v. DIGNAN.
• Court: West Virginia Supreme Court

171 S.E. 527

114 W.Va. 275

STATE v. DIGNAN.

No. 7657.

Supreme Court of Appeals of West Virginia.

October 31, 1933

Submitted October 17, 1933.

Syllabus by the Court.

Constitutional provision governing place of trial for criminal offense contemplates actual, and not constructive, venue (Const. art 3, § 14).

Where prisoner escaped from road gang in Braxton county, trial of prisoner in Marshall county for offense of escape on theory prisoner was constructively confined in penitentiary held error (Code 1931, 62-8-3; Const. art. 3, § 14).

Crime itself or some element entering into it must actually have taken place in county where venue is laid and trial had (Const. art. 3, § 14).

Section 14 of article 3 of the Constitution of West Virginia contemplates actual, and not constructive, venue, and Code 62-8-3, when read in connection therewith, does not justify the trial in Marshall county of a convict for a criminal offense committed outside Marshall county, on the theory of such convict being constructively confined in the penitentiary while working in a road gang outside Marshall county. In so far as points 1 and 2 of the syllabus of State v. Griffith, 88 W.Va. 582, 107 S.E. 302, are not in conformity herewith, these points are hereby modified.

Error to Circuit Court, Marshall County.

James Dignan was convicted of the offense of escape, and he brings error.

Judgment reversed, verdict set aside, and the cause remanded.

Everett F. Moore, of Moundsville, for plaintiff in error.

Homer A. Holt, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen for the State.

KENNA Judge.

James Dignan, plaintiff in error, was sentenced in the intermediate court of Ohio county on February 15, 1929, to be confined in the penitentiary for a term of four years. He escaped on August 4, 1930, while employed with a road gang in Braxton county, and was almost immediately recaptured. His sentence expired on February 17, 1933, and at the February term of the circuit court of Marshall county he was indicted for the escape, the indictment charging it as having occurred in Clay county. He was tried and convicted on the 8th day of March, 1933, and on the 18th day of March, after overruling a motion to set aside the verdict and grant defendant a new trial and in arrest of judgment, the trial court sentenced him to the penitentiary for a period of five years. From the proof at the trial, it appears that the escape actually took place in Braxton county.

The errors assigned here are: (1) In trying the accused in Marshall county because the Constitution of West Virginia requires that criminal trials take place in the county where the crime was committed unless, on motion of the defendant, a change of venue is ordered; (2) that a material variance between the allegation of the indictment that the offense took place in Clay county and the proof at the trial that the escape actually occurred in Braxton county renders the conviction invalid; and (3) that a period of two years and six months having intervened between the date of the alleged offense and the trial of the accused therefor, the constitutional requirement guaranteeing to the accused a speedy trial has been violated and for that reason the conviction cannot stand.

To meet the first proposition, the state relies upon the case of Ruffin v. Commonwealth, 21 Grat. 790. Under a Virginia statute prescribing that all proceedings against convicts in the penitentiary should be in the circuit court of the city of Richmond, Ruffin was tried and convicted in that court for a homicide occurring in Bath county, Va. The Virginia Supreme Court sustained the conviction, stating that a convict in the penitentiary could not avail himself of a provision of the Bill of Rights of the Virginia Constitution requiring that in criminal cases "a man hath a right to a speedy trial by an impartial jury of his vicinage." The principles of the Ruffin Case are not the law in this state. Here, all men are entitled to the protection of the Constitution, and this protection is not forfeited by even a convict except to the extent reasonably necessary to expiate the offense already committed. Dudley v. State, 55 W.Va. 472, 47 S.E. 285, followed the principle that the protection of the West Virginia Constitution in the matter of indictment and trial of criminal offenses extends as much to a person standing convicted of crime...