Isabel v. State
| Decision Date | 08 April 1912 |
| Citation | 58 So. 1,101 Miss. 371 |
| Court | Mississippi Supreme Court |
| Parties | HENRY ISABEL v. STATE |
March 1912
APPEAL from the circuit court of Chickasaw county, HON.H. K. MAHON Judge.
Henry Isabel was convicted of felonious assault and he appeals.
The facts are fully stated in the opinion of the court.
Case reversed and remanded.
Joe H Ford, for appellant.
The first ground which I desire to argue on this appeal is the failure on the part of the state to prove the venue in this case in the trial of the court below.
It devolves upon the state to prove every material fact necessary to establish the guilt of the defendant beyond every reasonable doubt and to a moral certainty, before conviction can be had. One of the first things every student of the law learns is that the jurisdiction of the court trying a case, and especially a criminal case, must be proven beyond all controversy. The court must have territorial jurisdiction. To put it in legal phrase, the venue must be proven. The jurisdiction of every criminal court is limited to the county in which the crime was committed, by section 26 of Constitution of the state of Mississippi, that section providing, among other things, that, "In all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county, where the offense was committed," must be had.
This court decided in the cases of Vaughan v. State, 3 S. & M. 553, 1 Morris State Cases, 245; Thompson v State, 51 Miss. 353, that the venue must be proved as laid in the affidavit or indictment or conviction cannot be sustained. And it further held that where the record fails to show that the offense was committed in the county where alleged in the indictment or affidavit, the judgment of conviction will be reversed.
As above said, this is the constitutional right of the defendant to insist upon the proving of the venue in every criminal case. The case at bar is a felony, and of course such constitutional requirement will never be considered waived by the defendant; as was held in Thompson v. State, supra, above, the record must show that the venue was proven, otherwise a conviction cannot stand, even in misdemeanor cases.
This well-recognized rule of law was not controverted in the court below, but it was contended that this material requisite was dispensed with by section 1401, Code of 1906. That section reads as follows:
I submit to the court that it was never the purpose of the legislature in adopting this section, to dispense with the proof of the venue in felony cases, as was contended for in the circuit court in this cause.
In the case at bar there was no effort whatever to show that the offense was committed in the first district of Chickasaw county; therefore, it could not be said that the evidence leaves it doubtful as to whether the offense was committed in the first district, when there was no proof whatever offered to show that it was in the first district. The proposition is not a doubtful one in the sense referred to in the above section, but it is a case of the absolute failure of the state to prove that it was in the first district, or that the court had territorial jurisdiction of the offense. That section as I understand it, has reference to crimes which are committed so near the line between two counties or two districts that it is impossible to show clearly as to which county or district the offense really was committed in, part of the proof showing that it was committed in the county or district where it was being tried, and there being evidence tending to show that it happened over the line in some other county or district; in such case it could be said, in the sense of the statute, that the evidence made it "doubtful" in which of the several counties or districts, including that in which the indictment alleges it, the offense was committed.
If it could be said that the proof in the present case leaves it "doubtful" as to which of the several counties or districts, including that in which the indictment alleges it, the offense was committed, then it would be only necessary to prove the venue of any crime that it was done in the state, and within the district of the circuit court.
To illustrate my meaning more clearly, we will take the third circuit court district of Mississippi, as an example:
The acts of the legislature of 1910, p. 83, ch. 105, section 4, constitutes the counties of Tippah, Benton, Union, Marshall, LaFayette, Calhoun, and Chickasaw, the third circuit court district of Mississippi. A man is being tried for assault with intent to kill and murder, a felony. It is proven and shown by the record that the offense was committed in Mississippi, and in the third circuit court district of the state, without any proof whatever, or any effort to prove, that it occurred in Chickasaw county, the indictment alleging that the offense was committed there. The party is convicted, makes a motion for new trial in one ground of which he sets out that the venue was not proven. The court replies:
and overrules the motion for a new trial. Could it be said that such conviction could stand for one moment, in the face of the provision of section 26, the Constitution of Mississippi of 1890, which provides that the defendant shall have a "public trial by an impartial jury of the county where the offense was committed?" Certainly to so construe said section of the Code...
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Phillips v. State
... ... section 1176 of the Code of 1930, where the evidence makes it ... doubtful in which of several counties the offense was ... committed "such doubt shall not avail to procure an ... acquittal of the defendant." ... Hill v ... State, 112 Miss. 375, 73 So. 66; Isabel v. State, ... 101 Miss. 371, 58 So. 1 ... Evidence ... tending to prove guilt must be considered most favorably to ... the state in determining the propriety of refusal to direct a ... verdict of not guilty ... Redwine ... v. State, 149 Miss. 741, 115 So. 889; Pruitt v ... ...
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Wells v. State
...same for jurisdictional purposes as if they were two counties. ” Rogers 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 tha......
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Wells v. State
...same for jurisdictional purposes as if they were two counties." Rogers 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 tha......
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Kidder v. State
..."uncertainties in the evidence" regarding venue "shall not avail to procure the acquittal of the defendant."); Isabel v. State , 101 Miss. 371, 377-78, 58 So. 1, 2 (1912) ("If the proof offered placed the commission of the crime so close to both judicial districts as to leave it in doubt as......