Opinion
No. 35392.
March 13, 1944.
1. CRIMINAL LAW.
The Supreme Court takes judicial knowledge of territorial boundaries of the state.
2. CRIMINAL LAW.
The Supreme Court takes judicial knowledge of fact that Louisiana has not passed a statute similar to Mississippi statute extending criminal jurisdiction of counties on Mississippi River to opposite bank thereof as authorized by joint resolution of Congress (Joint Resolution of Congress No. 4, Jan. 26, 1909, 35 Stat. 1160; Laws 1910, chap. 140, and sec. 4).
3. STATES.
Under statute extending criminal jurisdiction of counties on Mississippi River to opposite bank, as authorized by Congress, and providing that statute shall take effect when Louisiana shall pass a similar act, passage of such a similar act by Louisiana is a "condition precedent" to effectiveness of the Mississippi statute (Joint Resolution of Congress No. 4, Jan. 26, 1909, 35 Stat. 1160; Laws 1910, chap. 140, and sec. 4).
4. STATES.
The fact that Mississippi Code repeals all general laws not embodied therein, with certain exceptions, and that section of the act making enactment by Louisiana of similar statute a condition precedent to effectiveness of the act extending to opposite bank of Mississippi River criminal jurisdiction of certain Mississippi counties, was omitted from Code, did not make failure of Louisiana to pass such a similar act immaterial so as to extend jurisdiction of Mississippi to an island, originally a part of Louisiana and which remained so notwithstanding shifting of river channel (Joint Resolution of Congress No. 4, Jan. 26, 1909, 35 Stat. 1160; Laws 1910, chap. 140, and sec. 4; Laws 1930, chap. 210, sec. 15; Const. La. 1921, art. 1, sec. 9).
5. CRIMINAL LAW.
The rule that all matters of fact reviewable by appeal or on motion must be presented to trial court which rendered judgment appealed from because such a judgment is res judicata of all issues which could have been there determined does not apply to matters of which courts take judicial notice.
6. CRIMINAL LAW.
Court must take judicial notice of territorial extent of jurisdiction exercised by the government, the laws of which they administer, and of extent and boundaries of territories under which they themselves can exercise jurisdiction.
7. CRIMINAL LAW.
The question of jurisdiction of subject matter may be raised for first time on appeal in criminal case.
8. CRIMINAL LAW.
It is Supreme Court's duty, on appeal, to determine whether it has jurisdiction of case as condition precedent to its right to decide issues involved where want of jurisdiction is suggested by the record or appears from geographical, historical, or other facts of which court must take judicial notice.
9. CRIMINAL LAW.
The circuit court of Adams county was without jurisdiction of prosecution for theft of cattle from Glasscock Island in Mississippi River, where island remained part of Louisiana, notwithstanding shift of river channel and condition precedent to criminal jurisdiction of State of Mississippi over the island by enactment by Louisiana of required legislation was not performed (Joint Resolution of Congress No. 4, Jan. 26, 1909, 35 Stat. 1160; Laws 1910, chap. 140, and sec. 4).
APPEAL from the circuit court of Adams county, HON. R.E. BENNETT, Judge.
Engle Laub, of Natchez, for appellant.
In larceny prosecution based on circumstantial evidence, state must prove theft and defendant's connection therewith to exclusion of every possible hypothesis of innocence.
Ezell v. State, 158 Miss. 343, 130 So. 487; Sorrells v. State, 130 Miss. 300, 94 So. 209; Hogan v. State, 127 Miss. 407, 90 So. 99; Riley v. State, 103 Miss. 633, 60 So. 725; Bowman v. State, 112 Miss. 786, 73 So. 787; Wade v. State, 175 Miss. 434, 167 So. 617.
The general rule is that the issue on a criminal trial shall be single, and that the testimony must be confined to the issue, and that on the trial of a person for one offense the prosecution cannot aid the proof against him by showing that he committed other offenses.
Dedeaux v. State, 125 Miss. 326, 87 So. 664; Floyd v. State, 166 Miss. 15, 148 So. 226; Collier v. State, 106 Miss. 613, 64 So. 373; Baygents v. State, 144 Miss. 442, 110 So. 114; McLin v. State, 150 Miss. 159, 116 So. 533; McGee v. State (Miss.), 22 So. 890; Dabney v. State, 82 Miss. 252, 33 So. 973; Whitlock v. State (Miss.), 6 So. 237; Herman v. State, 75 Miss. 340, 22 So. 873.
The court did not have jurisdiction in this case. The only testimony in the case on the point of the location of Glasscock Island is the testimony of the witness Ward, who stated that Crawford and Newman kept their cattle on Glasscock Island "in Adams County, Mississippi." The court must take judicial notice there is no "Glasscock Island" in Adams County.
King v. Caraway, 132 Miss. 679, 97 So. 422, 424.
The court was bound to take judicial notice of the boundary between the State of Mississippi and the State of Louisiana, and particularly of the boundary of Adams County, and which boundary is set forth in Section 3888 of the Code of 1930.
Lasher v. State, 30 Tex. App. 387[ 30 Tex.Crim. 387], 17 S.W. 1064, 28 Am. St. Rep. 922; Boston v. State, 5 Tex. App. 383[ 5 Tex.Crim. 383], 32 Am. Rep. 575; Mischer v. State, 41 Tex.Crim. Rep., 53 S.W. 627, 96 Am. St. Rep. 780; Ex parte Wygant, 39 Or. 429, 64 P. 867, 54 L.R.A. 636, 87 Am. St. Rep. 922; 20 Am. Jur., Sec. 20, p. 51, Sec. 21, p. 52, Sec. 50, p. 74, Sec. 52, p. 76, Sec. 55, p. 79, Sec. 59, p. 81.
The state can get no comfort as to its jurisdiction from Section 1181, Code of 1930. That section is taken from the Laws of 1910, Chapter 140, and the 4th section of said act provides: "This act shall take effect and be in force from and after the date when the State of Louisiana shall pass a similar act as to the waters, island and territories mentioned herein." Our information is that the State of Louisiana has never passed a similar act thereby concluding a treaty with the State of Mississippi. Section 9 of Article I of the Louisiana Constitution of 1921 provides among other things: "Provides further, that all trials shall take place in the Parish in which the offense was committed . . ." Section 26 of the Constitution of the State of Mississippi of 1890 contains a similar provision. Had the State of Louisiana entered into a treaty on this point of jurisdiction then the indictment should specifically show the place where the offense was committed and show that it was in the State of Louisiana, and that the court had jurisdiction under the above statute. We submit that the court had judicial knowledge that Glasscock Island was in the State of Louisiana, and, therefore, the prosecution should have been dismissed.
Where the Constitution gives the accused an absolute right to be tried in the county or parish in which the offense was committed, then this right inheres in him and cannot be taken away except as fixed in the Constitution.
See annotation 137 A.L.R. 696.
After his trial and conviction, the appellant learned of a fact of which he previously had been ignorant, to the effect that Glasscock Island was within the boundary of the State of Louisiana and not within the boundary of Adams County, Mississippi. This is a matter of jurisdiction that he cannot be held to have waived under any circumstances. The circuit court of Adams County has jurisdiction within the boundaries of Adams County, and not otherwise. This is a fact of which it appears the circuit court did not have actual knowledge though we contend it had judicial. Had the court actually had knowledge of this fact, then the judgment herein could not have been rendered. This, therefore, is a case in which a writ of error coram nobis is proper and suitable.
2 Am. Jur., Appeal and Error, Sec. 3, p. 844; 3 Am. Jur., Appeal and Error, Sec. 1276, p. 766.
This petition was brought to the attention of the Attorney-General, a copy of same served on him, notice given him regarding the presentation of the petition to the circuit judge who tried the case, and notice given of the presentation later to a Justice of this court, and the petition for writ of error coram nobis is now before this court by virtue of an order of a Justice of this court, rendered on August 30, 1943, and to which order the Attorney General and the attorneys for the appellant agreed.
The petition was denied by the Hon. R.E. Bennett, and the circuit court of Adams County has made a notation under the seal of the circuit court on the outside cover to the effect that the writ was denied. It was then presented to a Justice of this honorable court, who, following the precedent of Dolan v. State, 195 Miss. 154, 13 So.2d 925, following the decision in Carraway v. State, 163 Miss. 639, 141 So. 342, signed the order referred to.
The right to the writ of error coram nobis has been recognized in Mississippi so frequently by our courts as to not be the subject of controversy.
Hogue v. Stricker Land Timber Co., 2 F. Supp. 905, affirmed 69 F.2d 167, certiorari denied 293 U.S. 591, 55 S.Ct. 106, 79 L.Ed. 686; 31 Am. Jur., Judgments, Sec. 798, p. 321, Sec. 799, p. 322, Sec. 800, p. 322, Sec. 801, p. 323, Sec. 802, p. 323; Mississippi Digest, 1818 to date, under Criminal Law, Key No. 997.
The writ is a remedial writ and is authorized under the Code of 1930, Sec. 742. Should the court hold that the circuit court of Adams County had judicial notice of the location of Glasscock Island, then undoubtedly this case must be dismissed, and should the court be of the opinion that the circuit court of Adams County should not have taken judicial notice of the location of Glasscock Island, then the writ of error coram nobis prayed for herein should issue.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
The recent possession of stolen property is a circumstance for the jury's consideration and in the absence of reasonable explanation of such possession by a party in possession, the jury may infer guilt therefrom.
Wood v. State, 155 Miss. 298, 124 So. 353; Wade v. State, 175 Miss. 434, 167 So. 617.
I submit that, under the facts in this case, the reasonableness of appellant's explanation was for the jury.
The general rule is that the issue on a criminal trial shall be single. However, there are exceptions, such as where the offense charged and that offered to be proved are so connected as to constitute but one transaction, or where it is necessary to identify the offender, or where it is material to prove motive, and there is apparent relation or connection between the act proposed to be proved and that charged, or where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge, and the like.
King v. State, 66 Miss. 502, 6 So. 188; Floyd v. State, 166 Miss. 15, 148 So. 226; Golden v. State, 183 Miss. 289, 184 So. 324; Kimbrall v. State, 178 Miss. 701, 174 So. 47.
The appellant contends that the circuit court of Adams County did not have jurisdiction in this case for the reason that Glasscock Island is in the State of Louisiana. The indictment charges and the proof shows that the cattle in question were located in Adams County, Mississippi. This was sufficient proof of the venue.
Kitchens v. State, 186 Miss. 443, 191 So. 116.
Section 1180, Code of 1930, is as follows: "The state of Mississippi, and her sister state, Louisiana, have concurrent criminal jurisdiction over all the water, islands, and territory lying opposite them and between the east and west banks of said river, and the south boundary line of the state of Mississippi and the north boundary line of the state of Louisiana, at their intersection with the Mississippi river."
Counsel for appellant contends that this statute is not in effect for the reason that the State of Louisiana never passed a similar act as provided in Section 4 of Chapter 140, Laws of 1910. I have been unable to find where the State of Louisiana ever passed a similar act. However, in view of Section 15 of the Act of Adoption, Code of 1930, Section 4 of the Laws of 1910 is of no effect. Section 15, Code of 1930, is as follows: "The Mississippi Code of 1930 shall take effect and be in force from and after the first day of November, 1930, and all laws of a general character not brought forward or embodied in said code, except laws granting exemptions from taxation for a period of years, shall be thereafter repealed; but this shall not apply to any act of the present legislature which is not incorporated in said code."
The purpose of the writ of error coram nobis proceeding was to obtain a new trial on the ground of newly discovered evidence. Under our system of practice, the writ cannot be resorted to for that purpose. All matters of fact, reviewable by appeal, or upon motion, must be presented to the trial court by motion for a new trial. They cannot be made the grounds for an application for a writ of error coram nobis. Within this rule fall all defenses existing at the time of the commission of the crime; and "within this rule, too, must fall all cases of accident and surprise, of verdicts against evidence, of newly discovered evidence, and all like matters."
White v. State, 159 Miss. 207, 131 So. 96; Fugate v. State, 85 Miss. 94, 37 So. 554, 556, 107 Am. St. Rep. 268, 3 Ann. Cas. 326; Cummins v. State, 144 Miss. 634, 642, 110 So. 206; Mitchell v. State, 179 Miss. 814, 176 So. 743.
Argued orally by S.B. Laub and C.F. Engle, for appellant, and by R.O. Arrington, for appellee.
Under an indictment charging him with the theft of eight head of cattle, the appellant Robert Graham was convicted in the circuit court of Adams County, Mississippi, on the charge of grand larceny and sentenced to serve a term of five years in the state penitentiary. The proof disclosed that fifteen head of cattle belonging to Messrs. Newman and Crawford were either stolen from Glasscock Island in the Mississippi River during the month of April 1942, or had later escaped from said island, and that in September thereafter four of them were found in the pasture of the appellant in the State of Louisiana opposite the western shore of the said island. Glasscock Island consists of approximately 19,800 acres of land, and the accused owned a cotton plantation of approximately 5,000 acres and had leased approximately 5,000 additional acres of pasture land in the State of Louisiana during the said year of 1942, in which he kept about 600 head of cattle, the majority of which cattle had been purchased at auction sales at Ferriday, Tallulah and Monroe and other places in Louisiana and at Natchez and Port Gibson, Mississippi.
After his trial and conviction, the appellant filed a petition for a writ of error coram nobis, which is now before this court by virtue of an order of a Justice hereof rendered subsequent to the denial of the petition by the circuit judge, and which proceeding, by agreement between counsel for appellant and the Attorney-General, is a part of the record in this cause. The ground upon which the petition is predicated is that Glasscock Island is in the State of Louisiana and that therefore neither the circuit court nor this court has jurisdiction in the case.
In the case of Hogue v. Stricker Land Timber Co., decided March 31, 1933, by the District Court of the Southern District of Mississippi, Western Division thereof, reported in 2 F. Supp. 905, 908, involving the title of certain lands, the location of which was necessary to be determined on the issue of the court's jurisdiction in the case, it was said as to Glasscock Island that:
"The court finds from the evidence that the main channel of the river formerly ran east of the island. This island was never wholly destroyed by erosion; so, when the river changed its main channel to the west of it, the island remained in the state of Louisiana, and the boundary between the two states did not shift, but remained in the center of the old channel, as it was when the water ceased to flow continuously therein."
The opinion and decision in the Hogue case, supra, was affirmed by the Circuit Court of Appeals for the Fifth Circuit, 69 F.2d 167, and the Supreme Court of the United States denied certiorari, as shown by 293 U.S. 591, 55 S.Ct. 106, 79 L.Ed. 686.
It further appears, however, that under Joint Resolution Number 4 of Congress, approved Jan. 26, 1909, Vol. 35 U.S. Stat. at Large, P. 1160, the Congress gave its consent that the States of Mississippi and Louisiana could agree upon a boundary line and settle the criminal jurisdiction to be exercised by each over the Mississippi River, and that under Chap. 140, Laws of 1910, Section 1179 et seq., Code of 1930, the Legislature of Mississippi provided that the counties of this state lying immediately on the Mississippi River shall, respectively, have and possess criminal jurisdiction within the territory embraced by extending their boundary lines which strike the said river on a continuous and direct course to the extreme western bank thereof, but further provided in Section 4 of the said Act that the same should take effect and be in force from and after the date when the State of Louisiana shall pass a similar act as to the waters, islands and territory mentioned.
We must take judicial knowledge of the territorial boundaries of the state, and of the fact that the State of Louisiana has not passed an act similar to the said Chap. 140, Laws of 1910, Section 1179 et seq., Code of 1930 — a condition precedent to the effectiveness of our statute in that behalf and made so by the express language thereof.
Under Joint Resolution Number 5 of Congress, approved January 26, 1909, Vol. 35 U.S. Stat. at Large, P. 1161, the Congress gave its consent that the States of Mississippi and Arkansas might likewise extend the jurisdiction of their criminal courts, and under Chap. 141, Laws of Mississippi 1910, and Act 290, Acts of Arkansas 1909, these two states have availed themselves of the consent of Congress to such extension of the criminal jurisdiction of their courts, and this court in the case of State v. Cunningham, 102 Miss. 237, 59 So. 76, 79, Ann. Cas. 1914D, 182, held that pursuant to these statutes the circuit court of Tunica County, Mississippi, had jurisdiction to try a person for selling intoxicating liquors west of the center or thread of the stream of the Mississippi River, due west of Tunica County, Mississippi, the court's jurisdiction being derived solely from the said Resolution of Congress and the two statutes enacted pursuant thereto.
The rationale of the decision in the Cunningham case, supra, was that "when the three sovereign powers give their consent, there is no other power to object; there being nothing in the Constitution of the United States and nothing in the Constitutions of the states to prevent it." However, in the case at bar, the State of Louisiana has not ceded to the criminal courts of Mississippi any jurisdiction to try offenses that may be committed within the territorial boundaries of the former state, even though the place of the crime is shown to be on an island in the Mississippi River, but within the territorial boundaries of Louisiana. In the instant case, it is shown that Glasscock Island consists of Sections 65, 66, 67 and 68, Township 5 North, Range 9 East of the Louisiana meridian, together with the accretions thereto, and that the said sections were surveyed and patented by the United States as being in the State of Louisiana, as shown on a map on file in the Department of Interior, United States General Land Office.
But it is said that the failure of the State of Louisiana to pass a similar act as provided in Section 4 of Chap. 140, Laws of 1910, is immaterial in view of Section 15 of the Act of Adoption of our Code of 1930, Laws 1930, Chap. 210, since Section 4 of the Laws of 1910 was not brought forward in our said Code of 1930, it being provided by Section 15 of the said Code that: "The Mississippi Code of 1930 shall take effect and be in force from and after the first day of November, 1930, and all laws of a general character not brought forward or embodied in said code, except laws granting exemptions from taxation for a period of years, shall be thereafter repealed; but this shall not apply to any act of the present legislature which is not incorporated in said code."
We are unable to agree with the contention on behalf of the state last above stated for the reason that Section 9 of Article 1 of the Louisiana Constitution of 1921 provides that all trials shall take place in the territorial jurisdiction in which the offense was committed. Moreover, the Congress has not given its consent for the State of Mississippi to extend the jurisdiction of its criminal courts in the manner contended for without the joint consent and action of the State of Louisiana in the premises.
It is urged by the state, however, that this question of territorial jurisdiction can not now be reviewed under an application for a writ of error coram nobis, since all matters of fact, reviewable by appeal, or upon motion, must be presented to the trial court, wherein the judgment appealed from was rendered, for the reason that such judgment is conclusive by way of res adjudicata of all of the issues which could have been there determined. In support of this contention, the cases of White v. State, 159 Miss. 207, 131 So. 96; Cummins v. State, 144 Miss. 634, 642, 110 So. 206; and Mitchell v. State, 179 Miss. 814, 176 So. 743, 121 A.L.R. 258, are cited. This rule, however, does not apply to matters of which courts are required to take judicial notice. Section 59, Volume 20, Am. Jur., p. 81, reads as follows: "All courts of justice are bound to take judicial notice of the territorial extent of the jurisdiction exercised by the government, the laws of which they administer, and of the extent and boundaries of the territory under which they themselves can exercise jurisdiction." Moreover, the question of jurisdiction of the subject matter may be raised for the first time on appeal, and it becomes the duty of this court to determine whether it has jurisdiction in a case as a condition precedent to its right to decide the issues involved, where the want of jurisdiction is suggested by the record or appears from a geographical, historical or other fact of which the court must take judicial notice.
In view of this conclusion, we deem it unnecessary to decide whether the question of territorial jurisdiction should have been raised by motion or upon petition for the writ of error coram nobis; nor is the result reached herein intended either as an approval or disapproval of the procedure followed. We express no opinion as to the proper procedure in that regard for the reason that the only point made and discussed in the briefs as to the relief sought on that ground on this appeal is whether or not the failure of the accused to raise the issue in the court below precludes us from considering such want of territorial jurisdiction when the same is brought to our attention as a fact of which we should take judicial notice; and, therefore, we merely hold that the circuit court of Adams County, Mississippi, was without jurisdiction to proceed with the case when it was disclosed by the testimony on behalf of the state that the cattle in question were claimed to have been taken in some manner from Glasscock Island and transported by some unknown person onto the mainland of the State of Louisiana, and that consequently the conviction and sentence must therefore be reversed and the appellant discharged.
Reversed and judgment here for the appellant.
ADDITIONAL STATEMENT.
The opinion in this case has been drawn in conformity to the usual rule that when it is found that the trial court had no jurisdiction, the appellate court in its opinion will not go into the merits, further than to develop the jurisdictional question. Simple justice to this appellant requires, however, that a statement by another member of the court be made of the fact, for it is a fact, that before arriving at the final determination that there was no jurisdiction, the court had reviewed this entire record and had come to the conclusion that there is no substantial merit in this prosecution; that appellant was entitled to be discharged on a peremptory instruction, and that this would have been the judgment of this court had the jurisdictional question not intervened.