Evans v. State
| Decision Date | 07 June 1926 |
| Docket Number | 24908 |
| Citation | 108 So. 725,144 Miss. 1 |
| Court | Mississippi Supreme Court |
| Parties | EVANS v. STATE. [*] |
1. INDICTMENT AND INFORMATION.
Indictment for grand larceny in county composed of two judicial districts, simply stating that crime was committed in county aforesaid, held to fail to charge venue of crime as required by Constitution 1890, section 26.
2. INDICTMENT AND INFORMATION.
Indictment must give defendant notice, not only of nature and cause of accusation, but also notice of place where offense was alleged to have been committed.
3. INDICTMENT AND INFORMATION.
Indictment failing to properly charge venue of crime is not cured by amendment properly stating venue, in absence of order on minutes authorizing such amendment nor of any ruling of trial court authorizing it.
4. INDICTMENT AND INFORMATION.
Under Hemingway's Code, section 1184, indictment failing to properly state venue of crime is amendable.
5. JUDGMENT MOTIONS.
Judgments and orders of circuit courts can be evidenced only by their minutes.
APPEAL from circuit court of Jones county, Second district, HON. R S. HALL, Judge.
Eugene Evans was convicted of grand larceny, and he appeals. Reversed and remanded.
Briefs filed by Jeff Collins and F. B. Collins, for appellant, and for the State by Harry M. Bryan, Assistant Attorney-General.
Reversed and remanded.
Appellant was indicted and convicted in the circuit court of the Second district of Jones county of the crime of grand larceny, and sentenced to the penitentiary for a term of five years. From that judgment he prosecutes this appeal.
The indictment, as returned into court by the grand jury and filed by the clerk, was in the following form: "The State of Mississippi. Second District, Jones County.
ALEXANDER CURRIE, District Attorney."
Appellant demurred to the indictment, one ground of the demurrer being that the indictment failed to set out the venue of the crime charged. Appellant's demurrer to the indictment was overruled.
Jones county is composed of two judicial districts for the holding of circuit and chancery courts in the county. Under the statute dividing the county into two districts for the holding of circuit and chancery courts, each of such districts stands exactly as if it were a separate county. The grand and petit juries for each district are drawn alone from that district, and for venue purposes each district is a separate county. There is no controversy between the appellant and the state as to that proposition. It is also conceded by the state that the indictment as found and returned by the grand jury and filed by the clerk failed to properly state the venue of the crime charged. Although the caption of the indictment including that part down to where appellant's name first appears would indicate that the grand jury finding the indictment was sitting in and for the second judicial district of Jones county (the district in which the evidence shows the crime was committed), still when it comes to the charging part of the indictment, where the venue was attempted to be set out and should have been, it is simply stated that the crime was committed "in the county aforesaid." That was the controlling part of the indictment so far as the venue of the crime was concerned. It is apparent, therefore, that the indictment failed to charge the venue of the crime, for under the language of the indictment the crime could have been committed in either the First or the Second judicial district of Jones county.
It follows from these views that the trial court erred in overruling appellant's demurrer to the indictment. Under section 26 of the Constitution the venue of the crime charged is as necessary to be set out in the indictment as any of the other fundamentals of the offense. The indictment must give the defendant notice, not only as to the nature and cause of the accusation against him, but notice of the place where it is alleged that the offense was committed. Thompson v. State, 51 Miss. 353.
It is argued by the attorney-general, however, that the error in the indictment was cured because of the fact that, after the court overruled appellant's demurrer to the indictment, the district attorney, with leave of the trial court, amended the indictment so as to make it properly state the venue of the crime charged. But the record shows that there was no order on the minutes authorizing any such amendment of the indictment. Neither is there in the record of this case in any form as originally set up any ruling of the trial court authorizing an amendment of the indictment. After the record in the case was filed in this court, it was amended by agreement in writing of the district attorney who prosecuted appellant, and appellant's attorney, in substance, as follows: That the district attorney moved the court for permission "to amend the indictment by inserting on the seventh line thereof the words 'and district aforesaid.'" The court permitted this amendment to be made, whereupon the district attorney made the amendment by inserting the words at the place indicated in the indictment "and district aforesaid," and that appellant excepted to that action of the court. Later the original indictment, on the regular printed form in use, which original of course is controlling as to its averments as they existed when it was returned by the grand jury as well as after the amendment made by the district attorney, shows that the district attorney...
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...to be effective, they must be entered or, as stated in our older cases, "appear on the minutes of the court." Evans v. State , 144 Miss. 1, 108 So. 725, 726 (1926). Accordingly, I must respectfully dissent.¶ 37. The Evans Court wrote,All the judgments and orders of the circuit courts can be......
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...v. State, 266 So.2d 10, 16 (Miss.1972) (citing Isabel v. State, 101 Miss. 371, 58 So. 1 (1912) ) (emphasis added). In Evans v. State, 144 Miss. 1, 108 So. 725 (1926), this Court held that an indictment which alleged that the crime occurred in a county, without distinguishing the judicial di......
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...v. State, 266 So. 2d 10, 16 (Miss. 1972) (citing Isabel v. State, 101 Miss. 371, 58 So. 1 (1912)) (emphasis added). In Evans v. State, 144 Miss. 1, 108 So. 725 (1925), this Court held that an indictment which alleged that the crime occurred in a county, without distinguishing the judicial d......