Opinion
No. 33731.
October 2, 1939.
1. CRIMINAL LAW.
On appeal to circuit court from conviction in justice's court of the first district of Humphreys county for petit larceny, it was necessary to prove that offense was committed in the first supervisor's district of Humphreys county.
2. CRIMINAL LAW.
Even if competent to prove that defendant waived proof of venue necessary to show jurisdiction of justice of the peace, testimony offered in reference thereto on a motion for new trial on appeal to circuit court cannot be considered as part of record submitted to jury in determining whether venue was proved.
3. CRIMINAL LAW.
Matters transpiring during the trial of a criminal case and not appearing of record may be raised by a bill of exceptions instead of by proof on a motion for new trial.
4. CRIMINAL LAW.
Proof of venue in criminal cases is jurisdictional, and the failure to make such proof may be objected to for the first time in the Supreme Court (Code 1930, sec. 3403).
5. CRIMINAL LAW.
Where record was entirely silent when case was submitted to jury in circuit court on appeal from conviction in justice's court concerning whether alleged offense was committed within district of justice's court from which case was appealed, conviction could not be sustained under statute, since failure to prove venue was jurisdictional (Code 1930, sec. 3403).
APPEAL from the circuit court of Humphreys county; HON. S.F. DAVIS, Judge.
H.F. Jones, of Belzoni, for appellant.
The failure to prove venue of the justice of the peace requires a reversal of the case, on appeal in the Circuit Court. This is not cured by an effort to show a purported agreement that is not in the record.
Waldrup v. State, 116 So. 432, 150 Miss. 302.
The record in the lower court must show affirmatively the jurisdiction.
Stubbs v. State, 49 Miss. 716; Carpenter v. State, 4 Howard, 163; Green v. State, 23 Miss. 509; Thompson v. State, 51 Miss. 353.
The record in the trial court imports verity and may not be impeached by affidavits or on a hearing on motions for a new trial.
Williams v. State, 125 Miss. 347, 87 So. 672; Young v. State, 150 Miss. 787, 117 So. 119; Bufkin v. State, 134 Miss. 116, 98 So. 455.
The Supreme Court can act only on the record, and not upon statements of counsel.
Pascagoula v. Delmas, 128 So. 743; State v. Spencer, 130 So. 4.
It is ground for a new trial in a criminal case that the record does not show distinctly all the proceedings.
Gaither v. State, 45 Miss. 441.
No presumption can be indulged contradicting the record.
Laura v. State, 26 Miss. 174; Stubbs v. State, 49 Miss. 716.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
The court has consistently held that it must affirmatively appear in a case of this kind that the Justice of the Peace who originally tried the appellant, must have had jurisdiction, or, in other words, it must affirmatively appear that the offense was actually committed in his district. There was no proof, according to the record, offered at the trial to show that the offense involved in this prosecution was committed in the First District of Humphreys County, nor is there any showing on the motion for a new trial that the offense occurred within the jurisdictional limits of the Justice of the Peace of the First District. There was no agreement anywhere by the parties that the offense did occur in the first district, but there does appear to have been some disagreement as to whether or not the defendant had waived proof as to which district the offense was committed in. The question arises in the mind of the writer as to whether or not this alleged waiver, if it had occurred, did not run afoul of that rule of law, which provides that jurisdiction cannot be conferred on a court by the consent or agreement of the parties.
In the following cases the court has dealt with proof of venue and the necessity of such proof to confer jurisdiction on the courts and it appears that these decisions require that there be some affirmative showing of venue rather than for the record even to show a waiver of such proof, although none of the cases, as such, refer to a waiver of proof.
Sandifer v. State, 136 Miss. 836, 101 So. 862; Dorsey v. State, 141 Miss. 600, 106 So. 827; Saucier v. State, 144 Miss. 788, 110 So. 436; Crosby v. State, 151 Miss. 512, 118 So. 604; Dodson v. State, 151 Miss. 548, 118 So. 620; Monroe v. State, 103 Miss. 759, 60 So. 773; Quillen v. State, 106 Miss. 831, 64 So. 736; Cagle v. State, 106 Miss. 370, 63 So. 672; Norwood v. State, 129 Miss. 813, 93 So. 354; Slaton v. State, 134 Miss. 419, 98 So. 838.
Even if we treat the situation here involved as a waiver, there is still no proof that the offense was committed in District No. 1. We, therefore, submit to the court that if an affirmative showing is required, then there was none in this case, and the decisions above referred to apply with full force.
On the other hand, if such proof may be waived, then the next question that arises is whether such waiver may be shown by the record for the first time on the hearing of a motion for a new trial. Here, again, it seems from the decisions that the state runs into another difficulty. In the cases of Keeton v. State, 102 Miss. 747, 59 So. 884; Huggins v. State, 103 Miss. 227, 60 So. 209; Brumfield v. State, 102 Miss. 610, 59 So. 849. It appears that the court has laid down the proposition that the only way to incorporate into the record those things which occur on the trial and which are not otherwise of record, is by bill of exceptions, either special or general, made up in one of the ways provided by law, and cannot be made by testimony on motion for new trial.
This is an appeal from the Circuit Court of Humphreys County, wherein the appellant was tried and convicted on an affidavit charging him with petit larceny, and sentenced to serve a term of 90 days in jail and pay a fine of $500 and costs.
The case originated in the Court of C.F. Walker, a Justice of the Peace of the First District of Humphreys County. Upon conviction in that court, the appellant appealed to the circuit court, where the case was tried de novo. In the circuit court, it was necessary, of course, to prove that the offense was committed in the First Supervisor's District of Humphreys County. The only proof as to the venue was that the offense, if any, was committed in Humphreys County, Mississippi. In other words, the record was altogether silent when the case was submitted to the jury as to whether or not the alleged offense was committed within the district of the justice of the peace court from which the case was appealed. Upon a motion for a new trial, the State offered testimony to the effect that the acting district attorney inquired of the defense counsel during the course of the trial (although not shown by the transcript of the evidence taken before the jury) as to whether he would agree that the place where the offense is alleged to have occurred was in Supervisor's District No. 1 of Humphreys County, Mississippi, and that the defense counsel responded to the inquiry by nodding his head. The defense counsel, however, had a different recollection as to what had occurred.
Therefore, even if it were competent to prove that the defendant waived proof of venue necessary to be made to show jurisdiction, the testimony offered in reference thereto on a motion for a new trial can not be considered as a part of the record which was submitted to the jury, in determining whether or not the venue had been proven. Such matters as may have transpired during the trial of the case, and not appearing of record, may be raised by a bill of exceptions, instead of by proof on a motion for a new trial. Keeton v. State, 102 Miss. 747, 59 So. 884; Huggins v. State, 103 Miss. 227, 60 So. 209; and Brumfield v. State, 102 Miss. 610, 59 So. 849, 921.
Proof of venue in criminal cases is jurisdictional, and the failure to make such proof may be objected to for the first time in the Supreme Court. Sandifer v. State, 136 Miss. 836, 101 So. 862; Dorsey v. State, 141 Miss. 600, 106 So. 827; Saucier v. State, 144 Miss. 788, 110 So. 436; Crosby v. State, 151 Miss. 512, 118 So. 604; Dodson v. State, 151 Miss. 548, 118 So. 620; Monroe v. State, 103 Miss. 759, 60 So. 773; Quillen v. State, 106 Miss. 831, 64 So. 736; Cagle v. State, 106 Miss. 370, 63 So. 672; Norwood v. State, 129 Miss. 813, 93 So. 354; and Slaton v. State, 134 Miss. 419, 98 So. 838.
Section 3403 of the Code of 1930 provides that: "A judgment in a criminal case shall not be reversed . . . because of any error or omission in the case in the court below, except where the errors or omissions are jurisdictional in their character, unless the record show that the errors complained of were made ground of special exception in that court." Since the error here complained of is jurisdictional in its character, the conviction can not be sustained on appeal under the provisions of this statute.
Reversed and remanded.