Burnett v. State

• Decision Date: 22 April 1895
• Citation: 72 Miss. 994,18 So. 432
• Court: Mississippi Supreme Court
• Parties: H. C. BURNETT v. THE STATE

18 So. 432

72 Miss. 994

H. C. BURNETT v. THE STATE

Supreme Court of Mississippi

April 22, 1895

FROM the circuit court of Choctaw county, HON. C. H. CAMPBELL Judge.

The case is stated in the opinion.

Judgment affirmed.

W. A Haden, for appellant.

Evidence that accused paid the federal revenue license tax was incompetent. It had no tendency to show that defendant. sold whisky, as alleged, to one Rutledge.

Failure to allege and prove the venue was a fatal omission, and objection can be made here for the first time. As to the venue, see Heggie v. Stone, 70 Miss. 39. I think the case comes within the reason of the rule laid down in Bryant v. State, 65 Miss. 435.

Frank Johnston, attorney-general, for the state.

It was perfectly competent, in corroboration of the state's witness, to show that defendant, who denied selling the whisky, had obtained a federal revenue license, thus proving that he contemplated and prepared for just such an act as is charged.

The objections as to the venue are not well taken. The affidavit charged a sale in Choctaw county, and the proof showed such a sale.

OPINION

COOPER, C. J.

An affidavit charging defendant with the unlawful sale of intoxicating liquor was made before the mayor of the town of Ackerman. The offense was alleged to have been committed "in district No. 5, in Choctaw county," in which county Ackerman is situated. On the trial before the mayor, who is ex officio a justice of the peace, the appellant was convicted. He appealed to the circuit court, and, being again convicted, prosecutes this appeal. In this court the appellant, for the first time, makes the objections (1) that the affidavit on which he was prosecuted does not lay the venue of the offense within the corporate limits of the town of Ackerman; (2) that on the trial no proof was made that, in fact, the alleged sale was within said corporate limits. Under the law, mayors of incorporated towns not having elected police justices, are ex officio justices of the peace for the district included within the corporate limits. Code 1892, § 3001. And the criminal jurisdiction of justices of the peace is confined to the limits of their respective districts, unless there be no justice in the district in which the offense is committed qualified to try the accused, in which event any justice of the peace of the county has jurisdiction. Code 1892, § 2420.

If the defendant had objected, in the circuit court, to the sufficiency of the affidavit on which he was being tried, the same might have been amended. Code, § 86. But the venue as laid, was an imperfect one, for it may be that the place at which the offense was committed in "district No. 5, in Choctaw county," was also within the corporate limits of the town of Ackerman, and an indictment is not insufficient "for want of a...