Opinion
No. 37662.
November 6, 1950.
1. Criminal procedure — venue, proof of — appeal.
Proof of venue in criminal cases is jurisdictional, and being so, the failure to make such proof may be raised for the first time on appeal.
Headnote as approved by Hall, J.
APPEAL from the circuit court of Jones County; F.B. COLLINS, Judge.
Melvin Melvin, for appellant.
Under Sec. 26 of the Mississippi Constitution the venue of the crime charged is as necessary to be set out and proved as any of the other fundamentals of the offense.
The record in this case fails to prove the venue as laid in the indictment and the record clearly shows that none of the witnesses who testified in the case testified that the offense occurred in the State of Mississippi, much less in the Second Judicial District of Jones County.
Venue is jurisdictional and must be proved and that question can be raised for the first time in the Supreme Court. Norwood v. State, 129 Miss. 813, 93 So. 354; Thompson v. State, 51 Miss. 353, Cagle v. State, 106 Miss. 370, 63 So. 672; Atkinson v. State, 132 Miss. 377, 96 So. 310; Slaton v. State, 134 Miss. 419, 98 So. 838; Sullivan v. State, 136 Miss. 773, 101 So. 683; Evans v. State, 144 Miss. 1, 108 So. 725; Quillen v. State, 106 Miss. 831, 64 So. 736.
In the case of Coney v. State, 196 So. 827, this Court found by the record that there were no questions asked with reference to the place where the crime was committed nor was there any other point proved to be in the State of Mississippi as connected with where the alleged crime took place. The Court held that in a criminal case the State must prove the venue.
In the case at bar, the same situation presents itself. There were no questions asked nor was there any evidence introduced to show where this alleged crime is supposed to have been committed. Neither was there any evidence to show in which one of the two judicial districts of Jones County the crime is supposed to have occurred.
The Mississippi case of Saucier v. State, 110 So. 436, held the following: "The failure of the evidence to disclose that the offense for which the appellant was tried was committed in the district of the magistrate in whose court the case originated is fatal . . . to the jurisdiction of the court below."
Another important Mississippi case on this point is Sandifer v. State, 101 So. 862.
George H. Ethridge, Assistant Attorney General, for appellee.
Appellant was convicted of child desertion. He was not represented by counsel in the lower court. The first assignment of error is that the State failed to prove the venue of the crime, and this question is raised for the first time on appeal. We have carefully examined the record and have failed to find any proof of venue of the alleged crime.
(Hn 1) Proof of venue in criminal cases is jurisdictional and the failure to make such proof may be raised for the first time on appeal. Johnson v. State, 186 Miss. 544, 191 So. 115; Kitchens v. State, 186 Miss. 443, 191 So. 116; Ussery v. State, 154 Miss. 704, 123 So. 854; Dodson v. State, 151 Miss. 548, 118 So. 620; Sullivan v. State, 136 Miss. 773, 101 So. 683; Slaton v. State, 134 Miss. 419, 98 So. 838; Norwood v. State, 129 Miss. 813, 93 So. 354; Quillen v. State, 106 Miss. 831, 64 So. 736.
It is unnecessary to consider the other questions raised by appellant, but for the error indicated the judgment is reversed and the cause remanded.
Reversed and remanded.