Opinion
No. 34358.
December 9, 1940.
1. CRIMINAL LAW.
Where proof showed that stolen cattle were taken from place in Tallahatchie county to Coahoma county without passing through Grenada county, and there was no proof that offense was committed in Grenada county, or circumstances from which that might be inferred, testimony of owner who lived a mile and a half from county boundary line, but who was not at home when cattle were stolen and knew nothing of their whereabouts, that so far as he knew the cattle never ranged in Tallahatchie county, was insufficient to fix venue of prosecution in Grenada county, and trial judge should have discharged the defendants and held them to await action by grand jury of appropriate county (Code 1930, sec. 1190).
2. CRIMINAL LAW.
Where trial court improperly overruled motion to discharge defendants on ground that venue was not proved, the Supreme Court on appeal would reverse judgment of conviction and render judgment discharging defendants under the indictment, but holding them under their appearance bond to await action of next grand jury of appropriate county (Code 1930, secs. 1190, 3378).
APPEAL from the circuit court of Grenada county; HON. JOHN F. ALLEN, Judge.
J.J. Breland, of Sumner, for appellants.
In a criminal case the state must prove venue beyond a reasonable doubt, as venue is jurisdictional.
Sec. 26, Const. of 1890; Sec. 1176, Code 1930; Cagle v. State, 106 Miss. 370, 63 So. 672; Sullivan v. State, 136 Miss. 773, 101 So. 683; Sandifer v. State, 136 Miss. 836, 101 So. 862; Dorsey v. State, 141 Miss. 600, 106 So. 827; Norris v. State, 143 Miss. 365, 108 So. 809; Phillips et al. v. State, 177 Miss. 370, 171 So. 24.
It is true that venue may be proven by circumstantial evidence, but to so prove it the circumstances must not only be consistent with the defendant's guilt, as alleged in the indictment, but it must be absolutely inconsistent with any other reasonable theory that the crime charged was committed in any county other than that laid in the indictment.
Dorsey v. State, 141 Miss. 600, 106 So. 827; Norris v. State, 143 Miss. 365, 108 So. 809.
Where the proof in the case is such as to leave it in doubt as to the location of the place where the crime was committed as being in one county or another, by reason of it being near the county line, or being such that it cannot be determined, with any degree of certainty from the facts, as to whether the crime was committed in one county or another, because of its nearness to the county line, then the court, in either of the counties, would have venue of the offense and would have the jurisdiction to try the case.
Sec. 1176, Code 1930; Phillips v. State, 177 Miss. 370, 171 So. 24.
However, from the record in this case, there is no doubt as to whether the crime took place in Grenada County or Tallahatchie County; but it is shown, without any doubt or any question, that the offense was committed in Tallahatchie County.
The circuit court of Grenada County did not have any jurisdiction to try this case and no authority to pass sentence upon these defendants, appellants herein; and this case should be reversed.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
If cattle are stolen in one county and are carried into or through another or other counties, prosecution for larceny may be begun in any county through which or into which they are carried. Under the early cases, Johnson v. State, 47 Miss. 671, and Watson v. State, 36 Miss. 593, it appears that to bring this rule into play the thief must carry the cattle or at least direct that they be carried through or into the other counties.
In the case here, the defendants testified that the cattle were stolen in Tallahatchie County and by them carried into Coahoma County. The cows were later delivered to the owner in Grenada County but not by the thieves or by anyone shown to be acting lucri causa.
Senator Winter's testimony with reference to where his cattle ranged was necessarily a conclusion based on the fact that he had never heard of his cattle ranging north toward the Tallahatchie County line. He was in Jackson at the time these cattle were stolen and had been for several days prior thereto.
In Devine v. State, 132 Miss. 492, 96 So. 696, it was said that larceny is a continuing offense and is being committed continuously as long as the stolen property is kept from the possession of its owner. In order for the cattle to be returned to the owner in this case, it was necessary for them to be carried into Grenada County, and the question is submitted to the court of whether this constitutes sufficient proof of venue so as to give the circuit court of Grenada County jurisdiction of this offense.
The appellants were indicted by the grand jury of Grenada county for grand larceny in the stealing of three head of cattle described in the indictment. The indictment charges that the offense was committed in Grenada county; and the appellants were tried and convicted in that county, and sentenced to serve three years each in the state penitentiary; from which sentence appeal was taken to this court.
The appellants complain that there was no proof of venue in Grenada county. The proof shows that the cattle were taken by the appellants to Clarksdale, in Coahoma county, and there sold; whereupon appellants were arrested by a deputy sheriff who believed, with good reason, that the cattle were stolen. A preliminary trial was had in Clarksdale, in which it appeared that the cattle had been stolen by the appellants. There is no proof that the offense was committed in Grenada county, nor are there sufficient circumstances from which that might be inferred to be a fact.
The proof on behalf of defendants showed that the cattle were taken from the Powell place, in Tallahatchie county, where they were found with a number of others, and that these three were confined, and afterwards led into a thicket and there hidden near the Powell place; that thereafter, at night, the party who had so concealed them secured the services of one of the defendants, who owned a truck, to carry them to market. It was first agreed and understood that they were to be carried to Memphis, Tennessee, but pursuant to the suggestion that there was an equally good market at Clarksdale, which was nearer, the cattle were carried there.
The proof shows, and the circumstances bear it out, that the cattle were originally taken in Tallahatchie county, and did not pass through Grenada county en route to Coahoma county. In Clarksdale the cattle were taken from the possession of the defendants, and returned by other parties to their owner in Grenada county. The only proof offered to show venue in Grenada county was the testimony of the owner to the effect that, so far as he knew, the cattle never ranged in Tallahatchie county. He lived a mile and a half from the county boundary line. At the time the cattle were stolen he was not at home, and knew nothing of their whereabouts. This was insufficient to sustain the fixing of venue, and the trial judge should have sustained the motion on behalf of the defendants, on the ground that the venue was not proved, and should have discharged them from that indictment, and held them, under section 1190 of the Code of 1930, to await action by the grand jury of the appropriate county. The offense was triable in either Tallahatchie or Coahoma county.
It is our duty under section 3378 of the Code of 1930, in case a sentence or decree of the court below be reversed, to render such judgment, sentence or decree as the court below should have rendered, etc. Hence, in the present case the judgment will be reversed, and judgment rendered here, discharging the appellants from the present indictment, but holding them under their appearance bond to await the action of the next grand jury of the appropriate county. Of course, their sureties may surrender them and require them to make a new bond, should they desire to take that course.
Reversed and appellants held to await action of the grand jury in the appropriate county.
These appellants are at large under bail bonds authorized by Sections 46 and 47, Code of 1930, conditioned that they "shall appear in the Supreme Court of the State of Mississippi and the Circuit Court aforesaid (of Grenada County) and abide by and perform such sentence or judgment as may be rendered in the case." This court is without authority to enlarge this condition of the bonds and hold the sureties thereon under any obligation to insure the appearance of the appellants before any other court pursuant to an indictment that may hereafter be there returned against them.
Had the court below dismissed the prosecution as it should have done, it could not under Section 1190 have continued to hold the appellants under their bail bonds, if such there were, but could only have ordered them "into the custody of the proper officer," and this court has no greater power in this respect than had the court below.
I think that the judgment here should be reversed and the case remanded, in which event Section 3395, Code of 1930, would require the appellants to appear before the court below, where if the state is still without evidence to prove the venue the case may be dealt with in accordance with Section 1190, Code of 1930.