Graycek, an inmate of the South Dakota Penitentiary, was allowed to leave the physical confines of the Penitentiary under a work-release program established by the South Dakota Board of Charities and Corrections pursuant to SDCL 24-8. While participating in this work-release program, Graycek was in the custody of his grandparents in Grant County. Graycek was subsequently indicted by a Minnehaha County grand jury on a charge of escape, the indictment stating in part that Graycek had escaped “from the custody of his grandparents at Summit, Grant County . . The trial court granted Graycek ⅛ motion for dismissal based upon an allegation of improper venue, and the state has appealed. We affirm.
Although SDCL 23-9-23 provides that “[t]he jurisdiction for an escape from prison is in any county of the state,” Article VI, Section 7, of the South Dakota Constitution provides:
In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf, and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.
The state contends that pursuant to SDCL 24-8-1,* the constructive confinement of the State Penitentiary was extended to Grant County, citing our decision in State v. Kiggins, 86 S.D. 612, 200 N.W.2d 243. Although it is true that the Kiggins case spoke in terms of constructive confinement, no constitutional issue of venue was involved therein. It would stretch the concept of constructive confinement beyond constitutional limits to adopt the interpretation urged by the state, however administratively convenient such a holding might be for those responsible for administering the work-release program, and therefore we conclude that in accordance with this court’s holding in In re Nelson, 19 S.D. 214, 102 N.W. 885, the proper venue for Graycek’s trial is in Grant County.
The order dismissing the indictment is affirmed.
MORGAN and FOSHEIM, JJ., concur. HENDERSON, J., concurs specially. DUNN, J., dissents.SDCL 24-8-1 provides in pertinent part:
Notwithstanding any other statutory provisions, the board of charities and corrections, hereinafter referred to as the “board,” may conditionally release selected inmates and may extend the limits of the place of confinement of such inmates of the state penitentiary ... .