Quillen v. State

• Decision Date: 26 March 1914
• Docket Number: 17238
• Citation: 106 Miss. 831,64 So. 736
• Court: Mississippi Supreme Court
• Parties: EARNEST QUILLEN v. STATE

64 So. 736

106 Miss. 831

EARNEST QUILLEN v. STATE

No. 17238

Supreme Court of Mississippi

March 26, 1914

APPEAL from the circuit court of Tishomingo county, HON. CLAUDE CLAYTON, Judge.

Earnest Quillen was convicted of the unlawful sale of liquors and appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Lamb &amp Warriner, for appellant.

On an examination of the record we find that the venue was not proven by the state on the trial of this cause, so we respectfully submit that the motion for a new trial should have been sustained and that the case should be reversed by this court. Cagle v. State, 63 So. 672.

Geo. H Ethridge, assistant attorney-general, for the state.

We submit that the assignment of error of appellant is without merit, because in his motion for a new trial appellant did not assign as error the failure of the state to prove the venue. Three grounds for a new trial were assigned by appellant but he failed to mention the fact that the state did not prove the venue.

Failure to prove the venue can be assigned for error only when made ground for special objection or exception at the trial in the court below. Burnett v. State, 72 Miss. 994, 18 So 432. This seems to be the correct rule. See, also, Hunt v. State, 61 Miss. 577; Lea v. State, 64 Miss. 201; 1 So. 245. In these two cases the principle is laid down that a case will not be reversed because of an omission of record or even of jurisdictional fact.

A clear case of unlawfully selling intoxicating liquors was proven by the state and there can be no question as to the guilt of appellant. The case was fairly and impartially tried and appellant cannot complain that a just and proper verdict was not rendered in this case.

We therefore respectfully submit that the case should be affirmed.

OPINION

REED, J.

Appellant was convicted on a charge of unlawful sale of intoxicating liquors, and was sentenced to pay a fine of two hundred dollars and to serve a term of ninety days in the county jail. He assigns as error the failure of the state to prove venue. The indictment charged that the offense was committed in Tishomingo county, but we are unable to find any testimony in the record to prove that the sale took place in that county. For this failure to prove venue this case is reversed. Cagle v. State, 106 Miss. 370, 63 So. 672.

There was no exception made during the trial to the failure of the state to prove venue. The exception is made for the first time in this court. In the brief for the state it is contended that such error could only be availed of where special objection or exception was made in the trial court. The cases of Burnett v. State, 72 Miss 994, 18 So. 432, Lea v. State, 64 Miss. 201, 1 So. 51, and Hunt v. State, 61 Miss. 577, are...