State v. W. H. Griffith.

• Decision Date: 03 May 1921
• Citation: 88 W.Va. 582
• Court: West Virginia Supreme Court
• Parties: State v. W. H. Griffith.

88 W.Va. 582

State

v.W. H. Griffith.

Supreme Court of Appeals of West Virginia.

Submitted April 27, 1921.

Decided May 3, 1921.

1. Convicts-Venue of Prosecutions Against Convicts Stated.

Section 1, chapter 165, Code, when read in conjunction with section 14, Article 3, of the Constitution, requires criminal proceedings against convicts in the penitentiary to be prosecuted in the circuit court of Marshall County only when they relate to offenses committed by convicts actually or constructively imprisoned. (p. 584).

2. Same-Escaped Prisoner Not Constructively "in Penitentiary" When at Large.

A prisoner who escapes from the state prison while serving sentence is not constructively within the penitentiary during the time he is at large. (p. 584).

3. Same-May be Indicted for Offense in the County Where Committed.

An escaped convict who, while at large, commits a felony, may properly be indicted and tried for such offense in the county where it was committed. (p. 586).

4. Same-Life Imprisonment No Bar to Conviction and Sentence for Subsequent Offense Committed During Escape.

The fact that a convict is undergoing sentence of imprisonment for life in a state prison is no bar to his trial, conviction and sentence for a subsequent offense, committed during his escape and absence from the prison, which carries with it the possibility of a more serious punishment. (p. 587).

Certified Question from Circuit Court, Mason County.

W. H. Griffith was charged with murder. A plea to the jurisdiction was overruled, and question certified.

Affirmed.

E. T. England, Attorney General, R. A. Blessing, Assistant Attorney General, and Bobt. L. Hogg, Prosecuting Attorney, for the State.

J. Howard Holt, for defendant. Lynch, Judge:

The questions certified by the circuit court of Mason County for review relate to a ruling on a plea denying the right of that court to exercise jurisdiction to consider and upon the verdict of a jury to determine the guilt or innocence of W. H. (Holly) Griffith for the murder of Ira Roush in that county Jan. 14, 1921, for which a grand jury duly convened and organized presented him for trial. Briefly stated and fairly condensed, the question is whether a person who has once been convicted of murder in the first degree and sentenced to imprisonment during life in the state penitentiary, but escapes, and before he is rearrested and returned to the prison commits another murder, as charged in the indictment, in a county other than Marshall, the seat of the place of confinement under the first sentence, can again be indicted, tried, convicted and sentenced therefor in the county where the offense was committed. If guilty of the second offense charged, and it was committed in Mason County, the venue was laid properly in the indictment and the circuit court of that county has jurisdiction of the indictment and may impanel a jury to try the accused, unless, as he contends, he cannot under the circumstances detailed be retried, and, if found guilty of the second offense, resentenced until the expiration of the first sentence, logically meaning until after his death; or unless, as he further contends, he is indicted, tried and convicted in Marshall County.

As provided by section 14, Art. 3, of the Constitution of this State, "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 al- leged offense was committed, unless, upon petition of the accused, and for good cause shown, it is removed to some other county." Notwithstanding these provisions, apparently intended for the benefit and protection of persons accused of violations of the laws of this state, Griffith invokes the provisions of chapter 165 of the Code, more particularly its first five sections, and especially the first, saying, under the caption "Venue:" "All criminal proceedings against convicts in the penitentiary shall be in the circuit court of the county of Marshall." This provision does not follow the language of section 14, Art, 3, and manifestly the purpose of the enactment was not to disregard or set at naught its express terms. Chapter 165 does not pretend to say that trials of crimes and misdemeanors charged against convicts, wherever committed, shall be in Marshall County, but that all criminal proceedings against convicts "in the penitentiary" shall be in that county. It is to be construed and interpreted in the light of the purpose it was intended to serve. It is directed against convicts actually or constructively imprisoned. If they violate the laws of the state in Marshall County, they necessarily must be tried in that county. They cannot lawfully be tried elsewhere. Of this fact the Legislature presumptively was aware. They did not intend to pass a law that necessarily would conflict with the constitutional requirement as to the trials of crimes. Chapters immediately preceding 165 manifest the object had in view by the Legislature at the time. Construed in connection with the constitutional requirement, there is not apparent a purpose to disregard its plain and imperative provision. To suppose they so designed is contrary to every legal presumption in favor of laws so enacted. Chapter 164 relates solely to crimes committed by convicts actually within the penitentiary and provides the punishment therefor, and section 1 of Chapter 165, which immediately follows, clearly has reference to those offenses or others similar to them when it fixes the venue of prosecutions therefor in Marshall County.

As Griffith departed from the place of confinement without the permission or knowledge of the prison authorities, he was not constructively under legal restraint or duress during his absence. For had the sentence been for a term of years instead of for life, the time intervening between his departure and his rearrest and return to the penitentiary would to that extent have increased the duration of the penalization. Cleek v. Commonwealth, 21 Gratt. 777. Cleek was sentenced to confinement in the county jail during ten months, but escaped before the expiration of the ten-month period, and was retaken, returned to jail, and required to serve the full time fixed by the jury, without credit for the time he was a fugitive from justice. "A prisoner who escapes after conviction, but before his term is served, may, on his recapture, be compelled to serve out his term of imprisonment without regard to the time he has been at large. In such case he...