(dissenting).
I dissent from the majority opinion. I would conclude that Graycek was in constructive custody of the warden of the South Dakota State Penitentiary during the period of his work-release program and escaped from the state penitentiary when he abandoned his work-release program. Therefore, I would hold that Minnehaha County is the proper setting for venue purposes in his trial for escape.
The majority opinion improperly relies upon In re Nelson, 1902, 19 S.D. 214, 102 N.W. 885. In Neison, the court discussed the proper venue of a trial for grand larceny and held that the statute authorizing criminal actions to be tried out of the county in which the offense is alleged to have been committed without the consent of the accused was contrary to the constitutional guarantee of a speedy trial by an impartial jury of the county in which the offense is alleged to have been committed. South Dakota Constitution, Article VI, § 7. The Nelson court did not address the question now before us, but the majority opinion *188relies on it nonetheless. The majority opinion summarily dismisses our decision in State v. Kiggins, 1972, 86 S.D. 612, 200 N.W.2d 243, in which the defendant walked away from a work-release program that allowed him to leave the Minnehaha County jail for daily employment within the City of Sioux Falls. We concluded as follows:
“Defendant was lawfully confined in the Minnehaha County jail. The privilege of work-release merely extended the limits of his confinement. Until his discharge by due process of law he remained under the legal restraint of his sentence and in constructive custody of the jail. * * * ” 86 S.D. at 615, 200 N.W.2d at 244.
Thus this court has specifically recognized the doctrine of constructive custody while on a work-release program.
This case does not involve a constitutional issue. The only question is whether defendant escaped from the state penitentiary or from his grandparents’ custody in Grant County for purposes of determining venue. Once that is determined, the constitutional question answers itself.
Graycek was at all times pertinent to this case an inmate of the state penitentiary who was allowed to enter a work-release program under the supervision of his grandparents in Grant County as authorized by SDCL 24-8. SDCL 24-8-6 defines the failure of an inmate to report to or return from planned employment in the work-release program as an escape. The majority opinion implies that since Graycek escaped from the custody of his grandparents in Grant County venue lies in Grant County. Gray-cek, however, did not escape from his grandparents. He could only escape from the state penitentiary where he was legally confined pursuant to a judgment and sentence of a court of competent jurisdiction. SDCL 23-25-1.1 Graycek was not in Grant County because his sentence was suspended by the court on condition that he serve his time in Grant County. He was in Grant County pursuant to statute which provides that selected inmates at the state penitentiary may be conditionally released for work-release programs and also specifically provides that the limits of the place of confinement are extended under such circumstances. SDCL 24-8-1. This clearly indicates that inmates on work-release programs are still under the confinement of the state penitentiary in Minnehaha County. Therefore, Graycek could only escape from the state penitentiary in which he was legally confined pursuant to a judgment of a court of competent jurisdiction. The place of confinement for venue purposes or for any other purpose does not change from Minnehaha County simply because a penitentiary inmate participates in a work-release program.
The conclusion is inescapable that since he was not discharged by a court of competent jurisdiction with due process of law Graycek remained under the legal restraint of his original sentence and in constructive custody of the state penitentiary in Minneh-aha County. The dismal result reached by the majority opinion would undermine the entire work-release program because, under the opinion’s logic, Graycek could next request a dismissal in Grant County on the grounds that he was not in custody in Grant County pursuant to an order of a court of competent jurisdiction, and he would be correct. Defendant is not a prisoner according to the definition set out in SDCL 23-25-1 2 unless he is a prisoner of the state penitentiary. If he is not a prisoner of the penitentiary, as this opinion would indicate, then he is not a prisoner any place. If you are not a prisoner, you can hardly be subject to the escape statute.
I would reverse the order dismissing the indictment and remand the case for a continuation of the proceedings.
. SDCL 23-25 was in effect at the time of defendant’s escape.
. See note 1.