State v. Cooksey
| Citation | 409 P.2d 335,242 Or. 250 |
| Parties | STATE or Oregon, Respondent, v. Willie Junior COOKSEY, Appellant. |
| Decision Date | 22 December 1965 |
| Court | Supreme Court of Oregon |
Carl M. Felker, Roseburg, argued the cause for appellant. On the brief was Dudley C. Walton, Roseburg.
Doyle L. Schiffman, Deputy Dist. Atty., Roseburg, argued the cause for respondent. On the brief were Avery W. Thompson, Dist. Atty., and Philip J. Washburn, Deputy Dist. Atty., Roseburg.
Before McALLISTER, C. J., and PERRY, * GOODWIN, LUSK and SCHWAB, JJ.
The defendant was indicted in Douglas county of the crime of assault with a dangerous weapon, was found guilty by a jury, and was sentenced to the penitentiary for a term of 18 months. He contends on appeal only that the state failed to prove venue in Douglas county. We agree and reverse the conviction.
In State v. Jones, Or., 400 P.2d 524 (1965), we reaffirmed the rule found in earlier cases that although venue need not be proved directly, but may be inferred by the jury from all the evidence in the case, nevertheless, venue must be proved beyond a reasonable doubt. Venue is a material allegation of the indictment by virtue of Art. 1, § 11, of our constitution, which guarantees the defendant a trial 'in the county in which the offense shall have been committed.'
There was evidence tending to prove that the defendant, in the yard of his own home, pointed a loaded rifle at a state policeman and threatened to shoot the officer. The officer had gone to defendant's home in response to a call from defendant's father-in-law, who reported that defendant had assaulted and injured defendant's wife. After some discussion between defendant and the officer, defendant agreed to take his wife to a hospital in Roseburg and to there surrender to the officer, which he did.
The officer testified that he was on duty north of Roseburg in Douglas county when he was instructed to go to the police station in the city of Winston and meet defendant's father-in-law. The officer further testified that 15 minutes elapsed while he, in his car, followed the car driven by the father-in-law from Winston to defendant's home. He also testified that 25 minutes elapsed while he drove from defendant's home to the hospital at Roseburg. The defendant testified that he lived 'about three-quarters of a mile past Porter Creek Store on 42.'
We think the above evidence is insufficient to prove venue beyond a reasonable doubt. If the jury had been informed of the...
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...conviction. See, e. g., State v. Evely, 228 N.W.2d 196 (Iowa 1975); Willis v. Commonwealth, 339 S.W.2d 174 (Ky.1960); State v. Cooksey, 242 Or. 250, 409 P.2d 335 (1965). Those courts holding that a preponderance of the evidence is sufficient to take the view that venue has no bearing on the......
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...citing authority); State v. Jones, 240 Or. 129, 130–35, 400 P.2d 524 (1965) (citing Casey, Harvey, Miller, and Evans ); State v. Cooksey, 242 Or. 250, 251–52, 409 P.2d 335 (1965) (citing Jones ); State v. Hutcheson, 251 Or. 589, 591–92, 447 P.2d 92 (1968) (citing Cooksey and Jones ); State ......
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