Rothchild v. State

• Decision Date: 27 October 1989
• Docket Number: 1 Div. 934
• Citation: 558 So.2d 981
• Parties: Roosevelt ROTHCHILD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 981

558 So.2d 981

Roosevelt ROTHCHILD v. STATE.

1 Div. 934.

Court of Criminal Appeals of Alabama.

Oct. 27, 1989.

Rehearing Denied Dec. 1, 1989.

Certiorari Denied March 2, 1990

Alabama Supreme Court 89-457.

Patricia Winston Hall, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Roosevelt Rothchild was indicted for two offenses: (1) sexual abuse in the first degree in violation of § 13A-6-66, Code of Alabama 1975; and (2) assault in the first degree in violation of § 13A-6-20, Code of Alabama 1975. The jury found the appellant "guilty of the lesser included offense of sexual abuse in the second degree," Ala.Code § 13A-6-67 (1975), and "guilty of the lesser included offense of assault in the second degree," Ala.Code § 13A-6-21 (1975). The trial judge sentenced the appellant to fifteen (15) years in the state penitentiary, as a habitual felony offender, and ordered the appellant to pay designated amounts to both the Alabama Crime Victims Compensation Fund and to the Alabama Medicaid Agency.

On March 26, 1988, Officer Otis Porter of the Mobile Police Department observed the victim, G.E., in the back seat of a car parked at the Seven-Eleven convenience store on Michigan Avenue in Mobile, Alabama. Officer Porter noticed something was wrong with the victim. He saw that she was bleeding and that there was blood on the back seat, so he called for the paramedics. Officer Porter tried to speak with the victim, but he stated that she was incoherent and intoxicated.

The victim was transported by ambulance to the University of South Alabama Medical Center (USAMC) in Mobile, Alabama. Dr. Timothy George Day observed her at the hospital and determined that she had lacerations to the rectum and the vagina, most likely caused by a "blunt foreign object," not likely "part of the human body." (R. 8-13).

The victim underwent three surgeries, including a colostomy, which were performed by Dr. Day and Dr. Henry Corden West of USAMC. Both physicians testified, over the appellant's objection, that had the victim not received treatment she quite possibly could have died.

Sergeant Steven Arthur of the Mobile Police Department investigated the incident. He first tried to speak with the victim while she was in the hospital. He found her to be incoherent and under the influence of medication from surgery. He spoke to her again about two or three weeks later. At this time she told Sergeant Arthur that this appellant was one of the individuals who injured her. Later, she identified the appellant in a "photo spread" as the one who shoved a wine bottle into her rectum. (R. 41).

I

In order for a court of this State to proceed in a criminal matter, it must have both jurisdiction and venue. Jurisdiction can be broken down into two parts: (1) subject matter jurisdiction; and (2) personal (over the person) and in rem (over the property) jurisdiction.

The "subject matter" in the criminal setting is the crime itself. Therefore, if the crime is committed in this State, our courts have subject matter jurisdiction.

If a crime is committed in this State, our courts also have jurisdiction over the person. Jurisdiction over property rarely arises in criminal matters, but a reasonable statement would be that, if property is illegally taken from this State or illegally brought into this State, our courts would have jurisdiction over this as well.

The appellant contends that the Mobile County Circuit Court lacked subject matter jurisdiction over this case. He further contends that venue was not proper in Mobile County. The appellant claims that the State failed to prove that the crime occurred in either Mobile County or in the State of Alabama. As a result, the appellant claims that the verdict and judgment against him is void and should be set aside.

The issues of venue and subject matter jurisdiction are closely intertwined. In fact, some courts have held that venue also "involves" subject matter jurisdiction. See 22 C.J.S. Criminal Law § 173 (1961). Other courts have held that venue "relates to practice and procedure and not jurisdiction." Id.

The better view is stated in American Law Reports as follows: "Although the terms 'jurisdiction' and 'venue' are often used interchangeably in criminal cases, they are clearly distinguishable. Jurisdiction refers to the judicial power to hear and determine a criminal prosecution, whereas venue relates to and defines the place where a prosecution is to be brought or tried." Annotation, 11 A.L.R. 4th 704, 705 (1982). In short, venue is established by proof showing the county in which the crime occurred, 22 C.J.S. Criminal Law § 172 (1961), while jurisdiction is the power of a given court to adjudicate the merits of a given case. Id. at § 107. See also Johnson v. State, 16 Ala.App. 64, 75 So. 270 (1917).

Corpus Juris Secundum further describes subject matter jurisdiction as follows:

"[J]urisdiction of the subject matter in a criminal case is the power to hear and determine cases of the general class to which the particular case before the court belongs. Jurisdiction of the subject matter in a criminal case is conferred by law. Thus, if a court has jurisdiction of the crime charged, it has jurisdiction of the subject matter."

22 C.J.S. Criminal Law § 108 (1961).

A

We must first determine if the issues of subject matter jurisdiction and venue were properly preserved for our review.

The record discloses that before this trial the appellant moved for a directed verdict, but the grounds for the motion were not stated. The motion was denied by the trial court.

At the close of the State's evidence, the appellant again moved for a directed verdict on the ground that the State failed to prove the crime occurred in the County of Mobile, Alabama. The State recalled Sergeant Arthur of the Mobile Police Department. Sergeant Arthur had previously testified that he escorted the victim to several cemeteries. She could not positively identify at which cemetery the attack occurred, but she stated that Magnolia Cemetery looked familiar. Sergeant Arthur testified that all of these cemeteries to which he took the victim, including Magnolia, were in Mobile County, Alabama. (R. 74).

The appellant then restated his motion for directed verdict on the same grounds, and the trial court then denied the same.

The appellant raised his motion on the same grounds a fourth time at the close of all the evidence and a fifth time after the jury retired. On both of these latter occasions, the trial court again denied the motion.

Objections based on defects in the commencement of the proceeding or in the charge for which a party seeks review must be asserted by pre-trial motion. A.R.Cr.P. Temp. 16.2(a) (1983). Subject matter jurisdiction is exempted from this rule, and it may be raised at any time. In fact, it may be raised for the first time on appeal. A.R.Cr.P. Temp. 16.2(d).

Venue, on the other hand, is properly preserved by a pre-trial motion. The appellant did make a handwritten pre-trial motion for directed verdict (R. 15), but, as stated above, the grounds are not set out in the record.

The appellant, in his brief, directs this court to the comments of Temporary Rule 16.4, A.R.Cr.P. 1983. The comments state that a trial judge's ruling on venue may be postponed until trial. A.R.Cr.P. Temp. 16.4 comment (1983), quoting United States v. Callahan, 300 F.Supp. 519 (S.D.N.Y.1969). In the case sub judice, however, there is no evidence that the trial judge chose to postpone a motion based on venue. In fact, the only pre-trial motion was one for a directed verdict with the record revealing no grounds therefor. Thus, assuming that this motion was premised on lack of venue, the trial judge denied the motion, rather than postponing it.

B

In order for a circuit court in Alabama to hear a case, it must have jurisdiction of the cause at issue. The Supreme Court of Alabama has previously held that a court must have jurisdiction over both the person and the subject matter and the two must "concur" for the court's judgment in a criminal prosecution to stand. See Goulden v. State, 292 Ala. 704, 299 So.2d 325 (1974).

The Constitution of Alabama states that "[t]he circuit court shall exercise general jurisdiction in all cases except as may otherwise be provided by law." Ala. Const. Amend. 328, § 6.04(b) (1901). The Code of Alabama states that, in criminal matters, "[t]he circuit court shall have exclusive original jurisdiction of all felony prosecutions...." Ala.Code § 12-11-30(2) (1975).

Therefore, for a circuit court in this State to have subject matter jurisdiction, the State must prove beyond a reasonable doubt that a felony was committed in Alabama. ¹ Both of the crimes for which the appellant was indicted in the case sub judice were class C felonies. See Ala.Code §§ 13A-6-21(b) and 13A-6-66(b) (1975).

C

Venue requirements have also been codified in Alabama. The primary rule of law is set out in § 15-2-2, Code of Alabama 1975. That section states as follows:

"Unless otherwise provided by law, the venue of all public offenses is in the county in which the offense was committed."

Another section of the venue statute states that, if a crime is committed partly in one county and partly in another, venue is proper in either county. Ala.Code § 15-2-6 (1975).

If a crime is committed so near the boundary of two counties so that it is impossible to determine in which county the crime occurred, venue is proper in either. Ala.Code § 15-2-7 (1975). Additionally, if a crime is committed in another state but was commenced in a county of Alabama, venue is proper in that county. Ala.Code § 15-2-3 (1975).

D

The State has the burden of proving both venue and jurisdiction. See Stokes v. State, 373 So.2d 1211, 1215-16 (Ala.Cr.App.), cert. denied, 373 So.2d 1218 (Ala.1979) (state must prove venue beyond a reasonable doubt). Where there is some evidence tending to prove that a...