Summary
In Kitchens, the supreme court reversed Robert Kitchens's conviction of driving a car while in a state of intoxication because the State failed to prove where the incident occurred and did not establish venue because "the only proof offered by the State was that the appellant was drunk when he drove his automobile up to the home of the chief prosecuting witness, and that this witness lived `about two miles below Star, off of 49 Highway on the road known as the Stewart and Ella Ross road, in District No. 1 of Rankin County.'"
Summary of this case from Bonds v. StateOpinion
No. 33647.
October 2, 1939.
1. CRIMINAL LAW.
On appeal to circuit court from conviction in justice's court of district No. 1 of Rankin county for driving an automobile while intoxicated, proof that defendant was drunk when he drove his automobile up to chief prosecuting witness' house and that witness lived "about two miles below Star, off of 49 Highway on the road known as the Stewart and Ella Ross road, in District No. 1 of Rankin County," was insufficient proof of venue, and conviction could not be sustained under statute, since failure to prove venue is jurisdictional (Code 1930, sec. 3403).
2. CRIMINAL LAW.
Even if the Supreme Court could take judicial notice of the location and general course of highways and of a particular United States highway, the court would not be justified in extending the rule to include the location of a particular road off the highway.
3. CRIMINAL LAW.
That the Supreme Court knew from the record aside from transcript of testimony that trial of criminal case was had in Rankin county, Mississippi, was insufficient proof of venue in Rankin county, since it is incumbent on the state to make the necessary proof of venue by available witnesses.
4. CRIMINAL LAW.
Though venue may be proved by circumstantial evidence in a criminal case, the proof must not only be consistent with the theory sought to be proved, but must be absolutely inconsistent with any other reasonable theory.
5. CRIMINAL LAW.
Judicial knowledge concerning matters of places and location of venue cannot be availed of unless the particular matter is of such general or common knowledge that every man may know it.
6. 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).
APPEAL from the circuit court of Rankin county; HON. PERCY M. LEE, Judge.
Hilton, Berry Kendall, of Jackson, for appellant.
The state failed to prove that the venue of the alleged crime was in the State of Mississippi.
Nowhere in the evidence do we find a mention of the State of Mississippi, either expressly or by necessary implication. Nor was there any testimony relative to the location of the court where the trial was had. Our court has repeatedly held that the failure to prove venue was jurisdictional and necessitated a reversal of any case and that this defect or objection might be raised for the first time on appeal.
Ussery v. State, 154 Miss. 704, 123 So. 854; Dorsey v. State, 141 Miss. 600, 106 So. 827.
"The State of Mississippi" or the word "Mississippi" does not appear a single time in the record. It is not even shown that the trial took place in the State of Mississippi and there is no testimony which would even justify an inference as to how far from the scene of the trial the crime was committed.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
We concede at the outset that proper proof of venue is jurisdictional and that a failure to prove venue may be taken advantage of in the Supreme Court for the first time. This being a jurisdictional question, we take it up first because if the court should hold that venue was not proved, then there would be no necessity for the court to proceed any further with the case.
Appellant says that nowhere in the evidence does it appear that the offense for which appellant was prosecuted was committed in the State of Mississippi. In this we think he is correct, because no witness stated that any of the transactions inquired into occurred in the State of Mississippi in haec verba. The court has heretofore said that the affidavit and warrant did not constitute any evidence upon this question. Sandifer v. State, 136 Miss. 836, 101 So. 862; Pickle v. State, 137 Miss. 112, 103 So. 4. So that upon this question the court is confined to what the witnesses said about the matter.
This court has said that it will take judicial notice of the location of municipalities as well as the existence and general course of important railroads. While this court has never said so, there is no reason why the court should not apply the doctrine of judicial notice to the existence and general course of important highways in the State.
Mr. Muse testified that he lived two miles below Star, and just off of Highway 49, in Beat One of Rankin County. This court knows the location of Highway 49. It likewise knows that Rankin County, Mississippi enjoys the distinction of being the only Rankin County in the United States and all of its insular possessions. The court knows that the municipality of Star is in Rankin County, Mississippi. This municipality is the only one of its name on Highway 49, in Rankin County, in the whole world. So that, if this offense were committed two miles from Star, in Beat One of Rankin County, the court judicially knew and this court knows that the offense was committed in the State of Mississippi.
Hill v. State, 112 Miss. 375, 73 So. 66; King v. Carraway, 132 Miss. 679, 97 So. 422; Loposser v. State, 110 Miss. 240, 70 So. 345.
As to what sources of information the court may refer to when it is required to take judicial notice of a thing, see Witherspoon v. State, 138 Miss. 310, 103 So. 134.
The appellant was first tried and convicted in the Justice of the Peace Court of District No. 1 of Rankin County on an affidavit charging him with driving an automobile while in a state of intoxication. The case was appealed to the circuit court, where he was again tried, convicted and sentenced to pay a fine of $100.
On the question of venue, the only proof offered by the State was that the appellant was drunk when he drove his automobile up to the home of the chief prosecuting witness, and that this witness lived "about two miles below Star, off of 49 Highway on the road known as the Stewart and Ella Ross road, in District No. 1 of Rankin County." There was no proof offered to show that the alleged offense was committed in the State of Mississippi, and no questions were asked as to what distance the witness lived from where the trial was being conducted, as was done in the case of Ben v. State, Miss., 103 So. 818. It will also be observed that the proof did not mention the Town of Star, the location of which the court could take judicial notice as an incorporated place, if there was only one such incorporated place found to exist by consulting such helpful sources of information as might be accessible to us. Moreover, such sources of information would reveal that there is an incorporated Town of Star in each of the states of Mississippi, Texas, North Carolina and Idaho. Therefore, if the witness had used the term "Town of Star" instead of merely saying "about two miles below Star," the testimony would still fail to definitely locate the place. The proof does disclose the place to be "off of 49 Highway about two miles below Star," but it does not mention U.S. Highway No. 49.
Since the Court has held that it will take judicial notice of the location and general course of railroads, it is argued that we should extend the rule to include the location and general course of highways. But, even though it be conceded, for the sake of argument, that this rule should be applied here on the theory that there would not be more than one U.S. Highway 49, we would not be justified in extending the rule to include the location of the Stewart and Ella Ross road off of "49 Highway."
Nor is it sufficient to say that this Court knows from the record in the case, aside from the transcript of the testimony, that the trial was had in Rankin County, Mississippi. If this was sufficient proof of venue, it would never devolve upon the State to offer testimony as to the county and state in which the crime is alleged to have been committed.
It may be conceded that there is only one Rankin County in the United States, and that by an extended investigation into the proper sources of information we would be able to ascertain that there is no other county by that name outside of this country, yet we feel that it is more incumbent upon the State to make the necessary proof of venue by available witnesses than it is upon us to engage our time in going so far afield to supply the proof by resorting to judicial knowledge to be acquired from information that we do not now have.
We are not constrained to extend the rule any further than it was extended in the case of Ben v. State, supra, and other decisions of this Court relating to the sufficiency of proof of venue, nor to depart from the rule announced in the case of Ussery v. State, 154 Miss. 704, 123 So. 854, holding that while venue may be proven by circumstantial evidence, the proof must not only be consistent with the theory sought to be proven, but must be absolutely inconsistent with any other reasonable theory; and in which case the Court also held that it was a dangerous practice to invoke the doctrine of judicial knowledge in trying criminal cases before a jury, and stated that "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."
As was said in the case of Charlie Johnson v. State, 191 So. 115, this day decided by this Division of the Court:
"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. [Citing authorities.]
"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.