49 W. Va. 70 | W. Va. | 1901
Lead Opinion
At the August term, 1899, of the circuit court of Braxton County, the grand jury of said county returned the following indictment:
*71 “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 Shiffllet 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, 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 Bishop’s Crim. Pro. s. 360, “The place of the offence must be alleged and proved, also 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, chapter 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 acces-sorial act occurred in another county, is repugnant, to Art. III, s. 14, of the Constitution, which provides that “Trials of crimes and misdemeanors, unless herein otherwise provided shall
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 in behalf of the prisoner that the statute is repugnant to that provision of the Constitution which guarantees to the accused “a speedy public trial by an impartial jury of the county in which the crime shall have been committed.” Constitution, Article I, section 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 Mathew 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 acees-sory 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 occur, and the latter must be the effect of the former in order to complete the crime. Thus says Sir
Ellison’s crime was committed in Braxton County in the larceny of the horse by the parties whom he counseled, aided and abetted in the crime. All the counseling and directing he could have done would not have made him liable to prosecution without the taking of the horse. By the General Assembly of Virginia of 1847-8, what is now section 8, chapter 152, of our Code, was enacted, and has been the law of Virginia and West Virginia ever since. The Virginia Bill of Bights still retains the word “vicinage” in the section under consideration, while ours uses the word “county.” This statute has been acquiesced in for more than half a century in both states. It was re-enacted after the adoption of our first constitution, and, as is well said, by the court in the Ayres Case, “must he taken as a legislative solution of the problem under consideration. Under it the prisoner would have absolute impunity for the alleged crime, unless arraigned and tried, in the words of the statute, ‘in the court having jurisdiction of the crime of the principal felon.’ ” The crime of the accessory before the fact in case at bar was contrived, concocted,
The third assignment of error is as to the giving of instructions asked by the State and refusing instructions asked by the defendant, as set out in bill of exceptions No. 2. The State’s first instruction is to the effect that if the jury believe from the evidence that defendant advised, counseled, hired or procured the principals in the indictment mentioned, personally, or that he advised, counseled, hired or procured said persons and one of them through or by the other to steal horses at the time mentioned in the indictment, and that in pursuance of such advice, etc., said principals did steal the horse as alleged, they should find the defendant guilty, and further that it was not essential that they should believe that the defendant advised, counseled, etc., the principals to steal the horse of M. F. McMorrow before they could find the defendant guilty. The instruction No. 2 offered by defendant and refused, “The court instructs the jury
For the reasons herein given the judgment is reversed, the verdict set aside, and the demurrer to the indictment sustained as to the accessory before the fact.
Reversed.
Dissenting Opinion
(dissenting):
T have no question but that Ellison was constitutionally indicted in Braxton; but I do not agree to the reversal of the judgment for failure of the indictment to state that he counseled in Calhoun County the act.
As shown in Judge McWhorter's opinion, in statute law, the accessory commits his crime in the county where the principal commits his crime. He may begin his criminality in Calhoun but it is going on, continuing until the felony is done, and the accessory’s incitement is, in law, just as much active and operative upon the principal where he steals the horse as when he in Calhoun gave that incitement. Hence, when the incitement charges the act of larceny as done in Braxton, it follows that the accessory’s inducement was also there. It is, in legal view, charged as given there. Where the indictment “is one against both principal and accessory, as is this one, the whole indictment constitutes only one county.” 2 Bish. Cr. Pro. 35; 1 Id. s. 467. Therefore, when the indictment says that McCune and Stalnaker
The passage cited by Judge McWhorter from 10 Ency. Pl. & Pr. 526 means that where you may prosecute in either of two counties, you must lay venue — venue, I say— in the county you select, and has no reference to the commission of the act.
The case of Connor v. State, 29 Fla. 455, did not involve our question. The indictment did not show where the obtaining the money was. Where one steals in one county and carries the goods to another, you need not set out in the indictment that he stole in one and carried to another county, but simply state that he stole in the county of the indictment, because in law his offense is there. See note 2, 10 Ency. Pl. & Pr. 526.
So, where one in Calhoun counsels a larceny in Braxton it need not be stated that the counseling was in Calhoun, but it should be alleged as in Braxton, as it is in this indictment. If charged in Braxton could you not prove the procuring in Calhoun ? That is by force of our statute allowing the prosecution in Braxton or Calhoun. The practice is to indict principal and accessory to be indicted where he gave encouragement; but our statute changes this, and can we not say that it allowed the act to be charged, as under the statute it is deemed, an act in the county of actual larceny?
I cannot see my way clear to a reversal on this ground. See State v. Jones, 38 La. Ann. 792, and State v. Fields, 50 La. Ann. 1239, (26 S. E. 99).