Summary
In Ussery v. State, 154 Miss. 704, 123 So. 854, a conviction was reversed where there was a failure to prove that the offense was committed in the State of Mississippi.
Summary of this case from Presley v. StateOpinion
No. 28191.
September 30, 1929.
1. CRIMINAL LAW. Failure to prove venue in criminal case may be raised for first time on appeal, venue being jurisdictional.
Venue in a criminal case must be proven as it is jurisdictional, and failure to prove it may be availed of on appeal for the first time.
2. CRIMINAL LAW. Venue may be proved by direct or circumstantial evidence; circumstantial evidence to establish venue must be absolutely inconsistent with any other reasonable theory than that sought to be proved.
Venue may be proven by direct or circumstantial evidence, but when sought to be proven by circumstantial evidence it must not only be consistent with the theory sought to be proven, but must be absolutely inconsistent with any other reasonable theory.
3. CRIMINAL LAW. Before judicial knowledge can be availed of as to places and locations such as venue, it must relate to matters of common knowledge known to every man.
It is a dangerous practice to rely upon the doctrine of judicial knowledge of facts in trying criminal cases before a jury, and before judicial knowledge can be availed of as to matters of places and location such as venue, it must be matters of such general or common knowledge as every man may know it.
APPEAL from circuit court of Hinds county, First district, HON.W.H. POTTER, Judge.
Nichols Hedgepeth, of Jackson, for appellant.
The state failed to prove venue. The state failed to prove that the crime was committed in the state of Mississippi. It is necessary in proving venue that it be proved in what state the crime was committed.
The question of venue may be raised for the first time on appeal.
Dorsey v. State, 106 So. 827; Norwood v. State, 129 Miss. 813, 93 So. 354; Slaton v. State, 134 Miss. 419, 98 So. 838; Sullivan v. State, 136 Miss. 773, 101 So. 683; Sandifer v. State, 136 Miss. 836, 101 So. 862; Quillen v. State, 106 Miss. 831, 64 So. 736; Cagle v. State, 106 Miss. 370, 63 So. 672; Monroe v. State, 104 So. 451; Pickle v. State, 137 Miss. 112, 102 So. 4; Carpenter v. State, 102 So. 184.
Geo. T. Mitchell, Attorney-General, James W. Cassedy, Jr., Assistant Attorney-General and H.R. Stone, Jr., Special Assistant Attorney-General, for the state.
The testimony showed that the sale occurred in Hinds county, first judicial district. Again, said sale took place "two blocks north of the Old Capital." Since our court has held that they take judicial notice of the boundaries of the state and counties, then this court judicially knows that two blocks north of the Old Capital in the first judicial district of Hinds county is in the state of Mississippi.
Charlie Ben v. State, 103 So. 818.
The appellant was indicted and convicted for the unlawful sale of intoxicating liquors.
There was a failure in the county court, where the trial took place, to prove that the offense took place in the state of Mississippi. The venue is jurisdictional in criminal cases and may be availed of on appeal for the first time, and if the venue is not proven either by direct or circumstantial evidence to the extent required by law, the judgment will be reversed for a failure to prove venue. When circumstantial evidence is relied upon to prove venue, it must not only be consistent with the theory sought to be proven, but it must be absolutely inconsistent with any other theory. This case is controlled by Norwood v. State, 129 Miss. 813, 93 So. 354; Slaton v. State, 134 Miss. 419, 98 So. 838; Sullivan v. State, 136 Miss. 773, 101 So. 683; Sandifer v. State, 136 Miss. 836, 101 So. 862; Quillen v. State, 106 Miss. 831, 64 So. 736; Cagle v. State, 106 Miss. 370, 63 So. 672; Dorsey v. State, 141 Miss. 600, 106 So. 827; Monroe v. State (Miss.), 104 So. 451; Pickle v. State, 137 Miss. 112, 102 So. 4; Carpenter v. State (Miss.), 102 So. 184.
The state contends that the conviction ought to be upheld under the case of Charlie Ben v. State (Miss.), 103 So. 818. In that case it appeared from the evidence that the offense was committed about eight miles east from where the court was then sitting, at Standing Pine in Leake county upon a government reservation, and the court said it judicially knew the boundaries of the county, and that the said place eight miles east of where the trial was being held was within the county limits and within the state of Mississippi. In the present case there was no reference in the evidence as to the distance from where the trial was being held to where the offense was committed. It is a dangerous practice to invoke the doctrine of judicial knowledge in trying criminal cases before a jury, and before judicial knowledge can be availed of as to matters of places and location of venue, it must be a matter of such general or common knowledge that every man may know it. We do not think the doctrine can be availed of here.
Judgment of conviction will therefore be reversed, and the cause remanded to the county court for a new trial.
Reversed and remanded.