Willis v. O'Brien, No. 12555

CourtSupreme Court of West Virginia
Writing for the CourtCAPLAN
Citation151 W.Va. 628,153 S.E.2d 178
PartiesDonald G. WILLIS v. Thomas P. O'BRIEN, Judge, Intermediate Court of Ohio County.
Docket NumberNo. 12555
Decision Date29 May 1967

Page 178

153 S.E.2d 178
151 W.Va. 628
Donald G. WILLIS
v.
Thomas P. O'BRIEN, Judge, Intermediate Court of Ohio County.
No. 12555.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 21, 1966.
Decided Feb. 28, 1967.
Rehearing Denied May 29, 1967.

Page 179

Syllabus by the Court

1. Where one puts in force an agency for the commission of the crime of murder resulting from unlawful abortion, he, in legal contemplation, accompanies the agency to the point where such crime becomes effectual.

2. When an unlawful abortion is committed in one county and [151 W.Va. 629] death results therefrom in another county, venue lies, under an indictment for murder, in either county.

3. When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment.

Pinsky, Mahan, Barnes & Watson, Wellsburg, McCamic & McCamic, Wheeling, for plaintiff in error.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, for defendant in error.

CAPLAN, Judge:

This is an appeal from a final order of the Circuit Court of Ohio County which denied the petitioner, Donald G. Willis, a writ of prohibition. On April 29, 1965, at a special term of the grand jury attending the Intermediate Court of Ohio County, West Virginia, the petitioner, Donald G. Willis, was indicted for murder. The indictment charges that Donald G. Willis on March 23, 1965, in Ohio County, 'feloniously, wilfully, maliciously, deliverately and unlawfully did slay and kill, and murder one Evelyn Riedel Sherman, in that on the 22nd day of March, 1965, in Brooke County, West Virginia, the said Donald G. Willis did feloniously, wilfully and unlawfully employ and use upon the body of the said Evelyn Riedel Sherman, a female person, who was then and there pregnant with child, certain means, the character and description of which are to the grand jurors aforesaid unknown, with intent then and there to destroy such unborn child of [151 W.Va. 630] the said Evelyn Riedel Sherman & to produce the abortion and miscarriage of said Evelyn Riedel Sherman * * *;'. The indictment, after alleging that the abortion was not performed with the intention of saving the life of the mother or child, further states 'and by reason of such abortion performed on her the said Evelyn Riedel Sherman did die in Ohio County, West Virginia on the 23rd day of March, 1965 * * *'.

On May 28, 1965 the petitioner filed a plea in abatement alleging that a trial on this indictment in Ohio County would constitute a violation of the constitutional provision assuring a defendant the right to be tried in the county where the offense was committed. The petitioner in a further plea

Page 180

in abatement alleged that the indictment failed to set forth that any mortal wound or other violation or injury was inflicted or administered in Brooke County.

By order dated June 14, 1965, the Intermediate Court overruled the petitioner's pleas in abatement and the case was set for trial. Donald G. Willis, on August 30, 1965, filed his petition for a writ of prohibition in the Circuit Court of Ohio County whereby he sought to prohibit the Honorable Thomas P. O'Brien, Judge of the Intermediate Court of Ohio County, from proceeding with a trial on this indictment. A rule was granted and the matter was fully heard. By order, dated October 22, 1965, a judgment was entered denying and dismissing the petition. It is from that judgment that this appeal is now being prosecuted.

Although subsidiary questions have been raised, the principal issue involved is whether the petitioner, in the circumstances of this case, may be tried in Ohio County. Venue, not jurisdiction, is our concern here. Jurisdiction is a constitutional endowment of power of hear and determine a cause. Thus, any court authorized by the Constitution, or a statute enacted pursuant thereto, to hear and determine a case involving a criminal[151 W.Va. 631] act has jurisdiction thereof. Venue, on the other hand, is merely the place of trial. It designates the particular county in which a court having jurisdiction may properly hear and determine the case. 19 M.J. Venue § 2.

In the instant case the Intermediate Court of Ohio County unquestionably has jurisdiction to try a defendant on a charge of murder. Whether Ohio County is the proper venue for such trial is the question squarely presented in this proceeding.

Article III, Section 14 of the Constitution of West Virginia provides, in part, 'Trials of crimes * * * shall be * * * in the county where the alleged offence was committed * * *.' A defendant is thereby afforded a constitutional right to be tried in the county where the crime was committed and such right cannot be abrogated, either by the courts or by statute. Consequently, this court in State v. Lowe, 21 W.Va. 782, held unconstitutional and void a statute which authorized prosecution for a crime in a county in which the offense was not committed but which was committed within one hundred yards of the boundary line of the county. It becomes clear, therefore,...

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59 practice notes
  • U.S. Steel Min. Co., LLC v. Helton, No. 32528.
    • United States
    • Supreme Court of West Virginia
    • December 2, 2005
    ...and any doubt must be resolved in favor of the constitutionality of the legislative enactment.' Point 3, Syllabus, Willis v. O'Brien, 151 W.Va. 628 (153 S.E.2d 178)." Syllabus Point 1, State ex rel. Haden v. Calco Awning & Window Corp., 153 W.Va. 524, 170 S.E.2d 362 2. The coal production s......
  • Sale ex rel. Sale v. Goldman, No. 27315.
    • United States
    • Supreme Court of West Virginia
    • July 19, 2000
    ...and any doubt must be resolved in favor of the constitutionality of the legislative enactment." Syl. pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967). Accord Syl. pt. 3, Donley v. Bracken, 192 W.Va. 383, 452 S.E.2d 699 (1994). Further, as was held in Syllabus point 1, in part,......
  • State ex rel. Cooper v. Tennant, Nos. 11–1405
    • United States
    • Supreme Court of West Virginia
    • July 20, 2012
    ...and any doubt must be resolved in favor of the constitutionality of the legislative enactment.” Syl. Pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967). 7. “Inasmuch as the Constitution of West Virginia is a restriction of power rather than a grant of power, as is the federal Co......
  • State ex rel. Cooper v. Tennant, No. 11-1405
    • United States
    • Supreme Court of West Virginia
    • February 13, 2012
    ...and any doubt must be resolved in favor of the constitutionality of the legislative enactment." Syl. Pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967).Page 4 7. "Inasmuch as the Constitution of West Virginia is a restriction of power rather than a grant of power, as is the fede......
  • Request a trial to view additional results
59 cases
  • U.S. Steel Min. Co., LLC v. Helton, No. 32528.
    • United States
    • Supreme Court of West Virginia
    • December 2, 2005
    ...and any doubt must be resolved in favor of the constitutionality of the legislative enactment.' Point 3, Syllabus, Willis v. O'Brien, 151 W.Va. 628 (153 S.E.2d 178)." Syllabus Point 1, State ex rel. Haden v. Calco Awning & Window Corp., 153 W.Va. 524, 170 S.E.2d 362 2. The coal production s......
  • Sale ex rel. Sale v. Goldman, No. 27315.
    • United States
    • Supreme Court of West Virginia
    • July 19, 2000
    ...and any doubt must be resolved in favor of the constitutionality of the legislative enactment." Syl. pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967). Accord Syl. pt. 3, Donley v. Bracken, 192 W.Va. 383, 452 S.E.2d 699 (1994). Further, as was held in Syllabus point 1, in part,......
  • State ex rel. Cooper v. Tennant, Nos. 11–1405
    • United States
    • Supreme Court of West Virginia
    • July 20, 2012
    ...and any doubt must be resolved in favor of the constitutionality of the legislative enactment.” Syl. Pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967). 7. “Inasmuch as the Constitution of West Virginia is a restriction of power rather than a grant of power, as is the federal Co......
  • State ex rel. Cooper v. Tennant, No. 11-1405
    • United States
    • Supreme Court of West Virginia
    • February 13, 2012
    ...and any doubt must be resolved in favor of the constitutionality of the legislative enactment." Syl. Pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967).Page 4 7. "Inasmuch as the Constitution of West Virginia is a restriction of power rather than a grant of power, as is the fede......
  • Request a trial to view additional results

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