State v. Ellison

• Decision Date: 09 March 1901
• Citation: 38 S.E. 574,49 W.Va. 70
• Parties: STATE v. ELLISON.
• Court: West Virginia Supreme Court

38 S.E. 574

49 W.Va. 70

STATE v. ELLISON.

Supreme Court of Appeals of West Virginia.

March 9, 1901

Syllabus by the Court.

1. The crime of an accessory before the fact, though inchoate in the act of counseling, advising, aiding, abetting, hiring, and commanding, is not consummated until the deed is actually done. It is the doing of the deed, and not the counseling advising, aiding, etc., merely, that makes the crime complete; and it is for the deed, the result of the counseling or procuring, and not for the counseling or procuring itself, that the accessory is indicted. Therefore the locus in quo of the offense of an accessory before the fact to a felony is in the county in which the felony is done. The crime is only complete when the felony is done, and the jurisdiction for the trial of the criminal may be where the felony is committed, and, under our statute, may also be in the county in which the accessorial act is done.

2. But when the indictment fails to lay the venue of the accessorial act of counseling, advising, abetting, hiring, etc according to the fact, the indictment is bad on demurrer for uncertainty.

(Per Dent and McWhorter, JJ.)

3. When the constitutionality of a statute is in question, it is a well-established rule of construction that the reasonable doubt must be resolved in favor of the constitutionality of the law.

Error to circuit court, Braxton county; W. G. Bennett, Judge.

James Ellison was convicted of abetting the theft of a horse, and brings error. Reversed.

Dulin & Hall, for plaintiff in error.

Edgar P. Rucker, Atty. Gen., and Luther C. Anderson, for the State.

McWHORTER J.

At the August term, 1899, of the circuit court of Braxton county the grand jury of said county returned the following indictment: "The grand jurors of the state of West Virginia, in and for the body of the county of Braxton, and now attending the said court, do upon their oaths present that Peter McCune and Hamp Stalnaker on the ___ day of October, 1897, in the said county, did feloniously steal, take, and carry away one horse, and one sorrel horse and one sorrel mare, of the value of eighty dollars, of the goods and chattels of M. F. McMorrow. And the grand jurors aforesaid, upon their oaths aforesaid, do further present that James Ellison and Matt Shifflett, before the said felony was committed in form aforesaid, to wit, on the ___ day of ___, 1897, did unlawfully and feloniously counsel, aid, abet, procure, hire, and command the said Peter McCune and Hamp Stalnaker to do and commit the said felony in manner and form aforesaid. Against the peace and dignity of the state." The defendant James Ellison appeared and demurred to said indictment, which demurrer was overruled, plea of not guilty entered, jury trial, verdict of guilty, motion to set aside verdict and grant new trial, which was also overruled, judgment, and prisoner sentenced. Defendant saved four several bills of exceptions, and obtained a writ of error, and makes five assignments, but does not insist upon those based upon the admission of improper evidence, as the evidence is not all certified, but relies upon his demurrer to the indictment, and the error assigned for giving improper instructions by the court on behalf of the state, and refusing proper instructions asked by the defendant.

Counsel for defendant insists that the indictment should allege that the accessorial act was committed in Braxton county, in order to give the circuit court of Braxton county jurisdiction, and cites State v. Hobbs, 37 W.Va. 812, 17 S.E. 380 where it is held, "That the alleged crime was committed within the jurisdiction of the court must be shown in the indictment, and proved as charged;" also 1 Bish. Cr. Proc. § 360, "The place of the offense must be alleged and proved, else no jurisdiction of the court over the transaction appears,"--and raises the constitutional question as to the jurisdiction of the circuit court of Braxton county, that section 8, c. 152, Code, in so far as it authorizes the indictment and trial of an accessory before the fact, in the county in which the principal felony was committed, although the accessorial act occurred in another county, is repugnant to article 3, § 14, of the constitution, which provides that "trials of crimes and misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay, and in the county where the alleged offence was committed, unless upon petition of the accused, and for good cause shown, it is removed to some other county." State v. Lowe, 21 W.Va. 782, is confidently relied on by counsel for defendant to sustain his contention. There it is held that section 12, c. 152, Code, which authorizes a crime to be prosecuted and punished in a county in which the offense was not committed, when the crime was committed within 100 yards of the boundary line of the county, is unconstitutional, null, and void, as being in conflict with said article 3, § 14, of the constitution. In the case cited, Judge Green refers to the case of Armstrong v. State, 1 Cold. 338, where the court decided, as stated by Judge Green, "that a provision in their Code (section 4976) which provided that 'when an offense is committed in the boundaries of two or more counties, or within a quarter of a mile thereof, the jurisdiction is in either county,' was unconstitutional, null, and void, it being in conflict with their constitution, which they interpreted to be in this respect the same as ours." Judge Green proceeds to say: "This case is directly in point, and is entitled to great consideration by us, especially as the court reached this conclusion reluctantly, and only because they regarded the law as being in direct conflict with the constitution." The constitution of Tennessee (article 1, § 9) guaranties to the accused "a speedy public trial by an impartial jury of the county in which the crime shall have been committed." Substantially identical with ours, in so far as it fixes the venue in criminal cases. While this statute provides that an accessory before the fact may be prosecuted and convicted for a felony, whether the principal felon has or has not been previously convicted, the offense being cognizable in any court having jurisdiction of the crime of the principal felon, also substantially the same as our statute on the same subject. Section 8, c. 152, Code. State v. Ayers, 8 Baxt. 96, is a case directly in point, and, as stated by Judge Green in the Lowe Case, is entitled to great consideration by us. "The question has never been passed upon by this court. The real inquiry in the case is, where was the crime committed by the accessory? If the horse had never been stolen, had the accessory done anything for which he could have been prosecuted? If not, when and where was his act consummated? In the Ayers Case, just cited, John Webb and David Duncan were indicted for the murder in Knox county of Richard F. Reynolds; and in the same indictment it was charged that Joseph Ayers and Columbus Ayers, before the said felony and murder was committed as aforesaid, to wit, the day and year aforesaid in the county of Anderson, state of Tennessee, did unlawfully, maliciously, and feloniously move, incite, counsel, hire, command, and procure the said John Webb and David Duncan," etc., to commit said felony and murder. This question is very well discussed in the Ayers Case, just cited. I quote from the opinion: "The sole question presented is whether the prisoner, who in one county of this state counseled, hired, procured, or commanded a murder to be committed in another county of this state, is indictable in the county where the murder was actually consummated, or in the county in which such counseling, hiring, commanding, or procuring was done, as accessory before the fact to such murder. The indictment was framed under the provisions of the Code (section 4975), in the words following: 'Where an offense is committed partly in one county and partly in another, or the acts or effects thereof, constituting or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county.' It is insisted on behalf of the prisoner that the statute is repugnant to that provision of the constitution which guaranties to the accused 'a speedy public trial by an impartial jury of the county in which the crime shall have been committed.' Const. art. 1, § 9. And this depends upon the inquiry, where was the crime of accessory before the fact committed in this case? *** The crime of accessory before the fact is a peculiar one. The absence of the accessory at the time and place of the principal offense is an essential element of the crime. Thus, Sir Matthew Hale defines the accessory before the fact to be 'one who, being absent at the time of the crime committed, doth get, procure, counsel, or command another to commit a crime. Herein absence is necessary to make him an accessory.' The crime of the accessory before the fact is not in merely counseling, hiring, or commanding the crime to be committed, for, if the crime be not at last committed, there is no such offense; but the connivance and the result aimed at must concur, and the latter must be the effect of the former in order to complete the crime. Thus, says Sir William Blackstone, in discussing the doctrine of accessories after the fact, 'If one wounds another mortally, and after the wound is given, but before death, a person assists or receives the delinquent, this does not make him accessory to the homicide; for until death ensues there is no felony.' 2 Cooley, Bl. 320. And the reason applies with like force to the offense of an accessory before the fact. The offense is compounded of the connivance of the accessory and the...