Norwood v. State

• Decision Date: 02 October 1922
• Docket Number: 22312
• Court: Mississippi Supreme Court
• Parties: NORWOOD v. STATE

93 So. 354

129 Miss. 813

NORWOOD v. STATE

No. 22312

Supreme Court of Mississippi

October 2, 1922

CRIMINAL LAW.

Failure to prove venue may be reviewed on appeal, although not raised below.

Venue in a criminal case is jurisdictional, and the failure of the state to prove venue may be reviewed in this court, although not raised in the court below.

HON. W H. HUGHES, Judge.

APPEAL from circuit court of Simpson county, HON. W. H. HUGHES Judge.

Robert Norwood was convicted of feloniously making and distilling intoxicating liquors, and he appeals. Reversed and remanded.

Cause reversed and remanded.

A. W Dent and G. W. Merrill, for appellant.

There is no evidence in the record of this case even tending to show that appellant made liquor in Simpson county or in the state of Mississippi. When the district attorney asked the witness Ducksworth, what county was this in? (see record page 7), he replied, in Simpson county; but the court will see from the record, that the witness was referring to the place where the appellant made the alleged confession and not to any place where the whiskey was made. Therefore no venue was proven even though the confession was otherwise competent evidence. The venue in a criminal case is jurisdictional, and the record on appeal must affirmatively show that it was proven. Monroe v. State, 103 Miss. 759, 60 So. 773 58 So. 1; 51 Miss. 353; 86 So. 340.

We respectfully submit that the motion for a peremptory instruction in the lower court for the jury to find the appellant not guilty should have been sustained, for the reasons that the alleged confession was incompetent; that the corpus delicti was not proven; that the venue was not proven; therefore, this case should be reversed and a judgment entered here discharging the appellant.

Wm. Hemingway, assistant attorney general, for the state.

The defense offered no testimony. They rely upon the failure to prove a corpus delicti. The prosecution is based upon a confession. They never located any still or any apparatus for the manufacture of the liquor. The defendant had the liquor; its possession would have been unlawful. The appellant said he manufactured the liquor. This seems to be sufficient proof of the corpus delicti. In other words, a manufacturer must have existed. The manufacture of that liquor was unlawful, and defendant claimed to be the manufacturer.

It is not necessary in this state to warn the accused not to testify. No obligation rests on the...