Summary
holding that when a conviction is reversed for failure to prove venue, "the case should be reversed and remanded, not reversed and rendered"
Summary of this case from Quinn v. StateOpinion
No. 40400.
February 11, 1957.
1. Affidavits — jurisdiction — affidavit stating offense had been committed in particular supervisor's district — sufficient to give Circuit Court jurisdiction — statements in affidavit as not constituting proof of venue.
Affidavit stating that offense had been committed in particular supervisor's district of named county was sufficient to give Circuit Court jurisdiction to try case, but it did not constitute proof that crime had been committed in such district.
2. Criminal law — affidavit for search warrant — search warrant — as not constituting proof of venue — admissible to show search was lawful.
Affidavit for search warrant and search warrant are admissible for one purpose only, to show that search was lawful, and such documents do not constitute any proof of venue.
3. Appeal — Supreme Court — judicial notice — that town is in certain County — cannot take judicial notice of supervisor's district in which town is located.
Supreme Court can take judicial notice that a certain town or city is in a certain county, but cannot take judicial notice of supervisor's district in which a town or city is located
4. Criminal law — cases originating in Justice of the Peace Court and appealed to Circuit Court for trial de novo — proof of venue requisite to jurisdiction — question of venue raised for first time in Supreme Court.
When a criminal case originates in Justice of the Peace Court and is appealed to Circuit Court for trial de novo, Circuit Court does not have jurisdiction unless proof shows that offense was committed in district where case originated; and question as to whether offense was committed in such district can be raised for first time in Supreme Court.
5. Appeal — venue — when question of venue successfully raised in Supreme Court case will be reversed and remanded.
When venue question is successfully raised in Supreme Court, case will be reversed and remanded rather than reversed and rendered.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Franklin County; JAS. A. TORREY, Judge.
C.F. Cowart, Meadville; E.C. Barlow, Brookhaven, for appellant.
I. Cited and discussed the following authorities: Algeheri v. State, 25 Miss. 584; Barnes v. State, 218 Miss. 240, 67 So.2d 300; Cagle v. State, 106 Miss. 370, 63 So. 672; Conwill v. State 147 Miss. 24, 112 So. 868; Carpenter v. State (Miss.), 102 So. 184; Cluney v. State, 162 Miss. 333; Crosby v. State, 144 Miss. 401, 110 So. 122; Crumb v. State, 216 Miss. 780, 63 So.2d 242; Davis v. State, 50 Miss. 93; Dorsey v. State, 141 Miss. 60, 106 So. 827; Ellzey v. State, 110 Miss. 502, 70 So. 579; Fore v. State, 75 Miss. 727, 23 So. 710; Foster v. State (Miss.), 49 So.2d 258; Hardy v. State, 177 Miss. 727, 172 So. 131; Harris v. State, 218 Miss. 259, 67 So.2d 302; Hogan v. State, 127 Miss. 407, 90 So. 99; Loftin v. State (Miss.), 51 So.2d 921; McGowan v. State, 184 Miss. 96, 185 So. 826; Miller v. State, 129 Miss. 774, 93 So. 2; Monroe v. State (Miss.), 104 So. 451; Moreton v. State, 136 Miss. 284, 101 So. 379; Murphy v. State, 201 Miss. 334, 28 So.2d 238; Murray v. State (Miss.), 46 So.2d 83; Norwood v. State, 129 Miss. 813, 93 So. 354; Owens v. State, 133 Miss. 753, 98 So. 233; Pickel v. State, 151 Miss. 549, 118 So. 625; Quillen v. State, 106 Miss. 831, 64 So. 736; Revette v. State, 209 Miss. 860, 48 So.2d 511; Sandifer v. State, 136 Miss. 836, 101 So. 862; Sellers v. City of Picayune, 202 Miss. 741, 32 So.2d 450; Slayton v. State, 134 Miss. 419, 90 So. 838; Saucier v. State, 144 Miss. 288, 110 So. 436; Spears v. State (Miss.), 99 So. 361; Rignall v. State, 134 Miss. 169, 98 So. 444; Stevens v. State, 183 Miss. 829, 184 So. 327; Strangi v. State, 134 Miss. 31, 98 So. 340; Street v. State, 209 Miss. 375, 48 So.2d 358; Sullivan v. State, 136 Miss. 773, 101 So. 683; Taylor v. State, 134 Miss. 110, 98 So. 459; Travillion v. State, 206 Miss. 236, 39 So.2d 773; Ussery v. State, 154 Miss. 704, 123 So. 854; Vince v. State, 206 Miss. 189, 39 So.2d 882; Waldrop v. State, 150 Miss. 302, 116 So. 432; Walker v. State, 199 Miss. 289, 24 So.2d 751; Warren v. State, 106 Miss. 284, 146 So. 449; Washington v. State, 152 Miss. 154, 118 So. 719.
John H. Price, Jr., Asst. Atty. Gen. Jackson, for appellee.
I. Cited and discussed the following authorities: Childress v. State, 188 Miss. 573, 195 So. 583; Coleman v. State, 198 Miss. 519, 23 So.2d 404; Hassell v. State, 229 Miss. 824, 92 So.2d 194; Houser v. State (Miss.), 195 So. 479; Johnson v. State, 146 Miss. 593, 111 So. 595; Kitchens v. State, 186 Miss. 443, 191 So. 116; Moore v. State, 179 Miss. 268, 175 So. 183; Peeples v. State, 216 Miss. 790, 63 So.2d 336; Revette v. State, 209 Miss. 860, 48 So.2d 511; Serio v. City of Brookhaven, 208 Miss. 620, 45 So.2d 257; Ussery v. State, 154 Miss. 704, 123 So. 854; Wince v. State, 206 Miss. 189, 39 So.2d 882.
Appellant was tried and convicted in the justice of the peace court, District 3, Franklin County, of the unlawful possession of intoxicating liquor. On appeal to the circuit court, he was again convicted and appeals here.
We have reviewed numerous assignments of error and one requires reversal of the case. Discussion of the other assignments would only fill space in the books in reasserting established principles.
Appellant raises in this Court for the first time the contention that venue was not proven. The affidavit on which appellant was tried stated that the offense was committed in District 3, Franklin County, Mississippi. The affidavit for the search warrant was made before the justice of the peace for District 3, Franklin County, Mississippi, and the search warrant described the place to be searched as being in District 3, Franklin County, Mississippi. The only proof made by the State on the question of venue was that the place where the intoxicating liquor was found was in Bude, Franklin County, Mississippi.
(Hn 1) The affidavit filed against appellant in the justice of the peace court was sufficient to give the circuit court jurisdiction to try the case, but it did not constitute proof that the crime was committed in District 3 of Franklin County, Mississippi. Crum v. State, 216 Miss. 780, 63 So.2d 242. (Hn 2) The affidavit for search warrant and the search warrant are admissible for one purpose only, to show that the search was lawful. Those documents do not constitute any proof of venue. Sandifer v. State, 136 Miss. 836, 101 So. 862. (Hn 3) But the State says that we should take judicial notice that Bude, Mississippi, in Franklin County, is in Supervisor's District 3 of that County. This Court may take judicial notice that a certain town or city is in a certain county, but we have held that since there are no public acts establishing the boundaries of a supervisor's district and such boundaries may be and sometimes are changed, we cannot take judicial notice of the supervisor's district in which a town or city is located. Elzey v. State, 110 Miss. 502, 70 So. 579. (Hn 4) When a criminal case originates in the justice of the peace court and is appealed to the circuit court for trial de novo the circuit court does not have jurisdiction unless the proof shows that the offense was committed in the district where the case originated. Sandifer v. State, supra; Crum v. State, supra. And this question may be raised for the first time in this Court. Street v. State, 209 Miss. 735, 48 So.2d 358; Norwood v. State, 129 Miss. 813, 93 So. 354; (Hn 5) and when successfully raised here the case should be reversed and remanded, not reversed and rendered. Crum v. State supra.
Reversed and remanded.
McGehee, C.J., and Hall, Kyle and Arrington, JJ., concur.