Kitchens v. State
| Decision Date | 02 October 1939 |
| Docket Number | 33647 |
| Court | Mississippi Supreme Court |
| Parties | KITCHENS v. STATE |
APPEAL from the circuit court of Rankin county HON. PERCY M. LEE Judge.
Robert L. Kitchens was convicted of driving an automobile while in a state of intoxication, and he appeals. Reversed and remanded.
Reversed and remanded.
Hilton Berry & Kendall, of Jackson, for appellant.
The state failed to prove that the venue of the alleged crime was in the State of Mississippi.
Nowhere in the evidence do we find a mention of the State of Mississippi, either expressly or by necessary implication. Nor was there any testimony relative to the location of the court where the trial was had. Our court has repeatedly held that the failure to prove venue was jurisdictional and necessitated a reversal of any case and that this defect or objection might be raised for the first time on appeal.
Ussery v. State, 154 Miss. 704, 123 So. 854; Dorsey v State, 141 Miss. 600, 106 So. 827.
"The State of Mississippi" or the word "Mississippi" does not appear a single time in the record. It is not even shown that the trial took place in the State of Mississippi and there is no testimony which would even justify an inference as to how far from the scene of the trial the crime was committed.
W. D. Conn, Jr., Assistant Attorney-General, for the State.
We concede at the outset that proper proof of venue is jurisdictional and that a failure to prove venue may be taken advantage of in the Supreme Court for the first time. This being a jurisdictional question, we take it up first because if the court should hold that venue was not proved, then there would be no necessity for the court to proceed any further with the case.
Appellant says that nowhere in the evidence does it appear that the offense for which appellant was prosecuted was committed in the State of Mississippi. In this we think he is correct, because no witness stated that any of the transactions inquired into occurred in the State of Mississippi in haec verba. The court has heretofore said that the affidavit and warrant did not constitute any evidence upon this question. Sandifer v. State, 136 Miss. 836, 101 So. 862; Pickle v. State, 137 Miss. 112, 103 So. 4. So that upon this question the court is confined to what the witnesses said about the matter.
This court has said that it will take judicial notice of the location of municipalities as well as the existence and general course of important railroads. While this court has never said so, there is no reason why the court should not apply the doctrine of judicial notice to the existence and general course of important highways in the State.
Mr. Muse testified that he lived two miles below Star, and just off of Highway 49, in Beat One of Rankin County. This court knows the location of Highway 49. It likewise knows that Rankin County, Mississippi enjoys the distinction of being the only Rankin County in the United States and all of its insular possessions. The court knows that the municipality of Star is in Rankin County, Mississippi. This municipality is the only one of its name on Highway 49, in Rankin County, in the whole world. So that, if this offense were committed two miles from Star, in Beat One of Rankin County, the court judicially knew and this court knows that the offense was committed in the State of Mississippi.
Hill v. State, 112 Miss. 375, 73 So. 66; King v. Carraway, 132 Miss. 679, 97 So. 422; Loposser v. State, 110 Miss. 240, 70 So. 345.
As to what sources of information the court may refer to when it is required to take judicial notice of a thing, see Witherspoon v. State, 138 Miss. 310, 103 So. 134.
The appellant was first tried and convicted in the Justice of the Peace Court of District No. 1 of Rankin County on an affidavit charging him with driving an automobile while in a state of intoxication. The case was appealed to the circuit court, where he was again tried, convicted and sentenced to pay a fine of $ 100.
On the question of venue, the only proof offered by the State was that the appellant was drunk when he drove his automobile up to the home of the chief prosecuting witness, and that this witness lived "about two miles below Star, off of 49 Highway on the road known as the Stewart and Ella Ross road in District No. 1 of Rankin County." There was no proof offered to show that the alleged offense was committed in the State of Mississippi, and no questions were asked as to what distance the witness lived from where the trial was being conducted, as was done in the case of Ben v. State, Miss., 103 So. 818. It will also be observed that the proof did not mention the Town of Star, the location of which the court could take judicial notice as an...
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State v. Fabian
...See Dorsey v. State, 141 Miss. 600, 106 So. 827 (1926); Ussery v. State, 154 Miss. 704, 123 So. 854 (1929); and Kitchens v. State, 186 Miss. 443, 191 So. 116 (1939). In Presley v. State, 217 Miss. 112, 63 So.2d 551 (1950) the Court reaffirmed the rule that proof of venue, as any other eleme......
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