State v. Overholt

• Decision Date: 19 January 1932
• Docket Number: 7186.
• Citation: 162 S.E. 317,111 W.Va. 417
• Parties: STATE v. OVERHOLT.
• Court: West Virginia Supreme Court

162 S.E. 317

111 W.Va. 417

STATE v. OVERHOLT.

No. 7186.

Supreme Court of Appeals of West Virginia.

January 19, 1932

Submitted January 13, 1932.

Syllabus by the Court.

Statute in so far as authorizing trial of accessory after the fact in county where principal crime was committed, held in violation of constitutional provision governing trial (Code 1931, 61-11-7; Const. art. 3, § 14).

Chapter 152, section 8, Code 1923 (61-11-7, Code 1931), in so far as it authorizes the indictment and trial of an accessory after the fact in the county where the principal crime is committed (unless the accessorial acts occur therein), violates article 3, section 14, of the state Constitution.

Error to Circuit Court, Greenbrier County.

Lee Overholt was convicted as an accessory after the fact, and he brings error.

Judgment reversed, and the indictment dismissed.

F. R Hill, of Marlinton, for plaintiff in error.

Howard B. Lee, Atty. Gen., and W. Elliott Nefflen, Asst. Atty. Gen for the State.

LITZ J.

Defendant Lee Overholt, was indicted, tried, and convicted in Greenbrier county under chapter 152, section 8, Code 1923 (61-11-7, Code 1931), as an accessory after the fact. The indictment charges that Howard Cook on April 6, 1931, in Greenbrier county, committed the crime of robbery, and that afterwards, to wit, on April --, 1931, in Pocahontas county, defendant "did unlawfully receive, harbor, maintain, comfort and assist said Howard Cook and did in said county of Pocahontas aid and assist the said Howard Cook to avoid and escape arrest for said felony."

The statute provides that "an accessory, either before or after the fact, may, whether the principal felon be convicted or not, or be amenable to justice or not, be indicted, convicted, and punished in the county in which he became accessory, or in which the principal felon might be indicted. Any such accessory before the fact may be indicted either with such principal or separately."

The chief assignment of error is that the trial of defendant in Greenbrier county for accessorial acts committed in Pocahontas county (notwithstanding the statute) is in violation of article 3, section 14, of the state Constitution, which provides: "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." By reason of this constitutional provision, all crimes must be tr ied in the county in which they are committed. State v. Lowe, 21 W.Va. 782, 45 Am. Rep. 570; State v Greer, 22 W.Va. 800; State v. McAllister, 65 W.Va. 97, 63 S.E. 758, 131 Am. St. Rep. 955; Ex parte Brinkman, 93 W.Va. 351, 116 S.E. 757; State v. Harrah, 101 W.Va. 300, 132 S.E. 654. That part of the statute authorizing the indictment and trial of an accessory before the fact in the county in which the principal crime was committed has been held valid, upon the theory that the offense of such accessory is consummated at the time and place of the commission of the principal crime. State v. Ellison, 49 W.Va. 70, 38 S.E. 574; Weil v. Black, 76 W.Va. 685, 86 S.E. 666. "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...