Slaton v. State

• Decision Date: 11 February 1924
• Docket Number: 23744
• Citation: 98 So. 838,134 Miss. 419
• Court: Mississippi Supreme Court
• Parties: SLATON v. STATE

98 So. 838

134 Miss. 419

SLATON v. STATE

No. 23744

Supreme Court of Mississippi

February 11, 1924

Division B

APPEAL from circuit court of Hinds county, First District, HON. W H, POTTER, Judge.

Will Slaton was convicted of the unlawful sale of intoxicating liquor, and he appeals. Reversed and remanded.

Judgment reversed.

Flowers & Brown, C. L. Hester and J. H. Brumby, for appellant.

The charge against appellant was by affidavit made before E. E Frantz, justice of the peace, of supervisors' district No. 1, of Hinds county, Mississippi, by whom he was first tried and convicted. At the trial in the circuit court it was not proven that E. E. Frantz was a justice of the peace of the first supervisors' district of Hinds county; that the alleged offense was committed in said first supervisors' district; nor that it was committed in the first judicial district of Hinds county. No proof at all was made as to E E. Frantz and the only evidence as to the place or venue of the alleged offense is testimony to the effect that it "happened up near Tougaloo, in the first district of Hinds county, Mississippi."

It was necessary for the state to show affirmatively that the alleged offense occurred in supervisors' district No. 1 of Hinds county, the justice's district before whom the affidavit was made; and in the first judicial district of Hinds county, to the circuit court of which district the case was appealed. Monroe v. State, 103 Miss. 759, 60 So. 773; Elzey v. State, 110 Miss. 502, 70 So. 579. The court cannot take judicial notice of the supervisors' district in which a town or city is situated. Backenstoe v. Wabash, etc., R. R. Co., 86 Mo. 492; Mayes v. St. Louis, etc., R. R. Co., 71 Mo.App. 140.

There are numerous other cases that have been reversed for failure to prove venue. Cagle v. State, 63 So. 672; Quillen v. State, 106 Miss. 831, 64 So. 736; Norwood v. State, 93 So. 354. Tougaloo is not an incorporated town, but a postoffice and flag stop, or perhaps a regular stop for local trains. Under the authority of the Elzey case, supra, the circuit court could not take judicial notice of what supervisors' district of Hinds county Tongaloo is in. Then we have only to decide what is the effect of the words, "In the first district of Hinds county, Mississippi." Is this designation equivalent to supervisors' district No. 1 of Hinds county, or to justice of the peace, district No. 1 of Hinds county? We insist that it is not and that it is not a proper or sufficient designation of such subdivision of the county. The phrase "first district of Hinds County, Mississippi," alone means nothing. One using that phrase might have in mind the first supervisors' district of Hinds county, or the first judicial district of Hinds county, but the person to whom it was used would not know which one. A descriptive word, such as "supervisors" or "judicial," is necessary to give meaning to it.

However, even if "in the first district of Hinds county, Mississippi" means the first supervisors' district of Hinds county, it cannot also mean "in the first judicial district of Hinds county" for it cannot refer to both subdivisions. As said in Isabel v. State, 101 Miss. 371, 58 So. 1; "Where the laws create two judicial districts in any county, the effect is the same as to jurisdiction, as if there were two counties. An offense committed in one judicial district must be tried in the district in which the offense was committed, and cannot be tried in the other." This was also expressly held in the case of Spivey v. State, 58 Miss. 858.

S. C. Broom, Assistant Attorney-General, for the state.

We concede the law to be that the circuit court in this case was without jurisdiction if the justice of peace court was without jurisdiction. We further concede the law to be that venue is a jurisdictional question, and can be raised for the first time on appeal. There is ample authority for this last rule, but if there is any good reason supporting the rule I have never been able to understand it, or to appreciate it. When one has elected to surrender his person to the jurisdiction of the lower court and has entered a plea of "not guilty," and takes his chances for an acquittal or a conviction without having uttered one word of objection as to the jurisdiction of the court over such matter, or over his person and then having lost, why should he then for the first time be heard to say that the court was without jurisdiction to try the case.

The test in such a case is, if the appellant had been acquitted in the lower court, could the state have prosecuted him again for this same offense, or would the record in the present case be sufficient to show that he had been tried and acquitted for the identical offense. A reasonable and just solution of a problem such as the one now confronting us is as follows: We concede that venue must be proven, but it is not always a question of fact to be submitted to the jury. It is never an issue of fact to be submitted to the jury unless on the trial of the case there is a conflict of evidence for the state, and for the defendant as to where the crime was committed. Unless this becomes an issue on the trial of the case, jurisdiction is a question of law to be submitted to the judge and not a question of fact to be determined by the jury. The record in this case will disclose that it was not an issue of fact raised on the trial of this case that made it necessary to submit it to the jury, and the record further shows that the trial judge was satisfied with the proof of venue submitted to him, and on the motion to set aside the verdict the trial judge, W. H. Potter, was called as a witness for the state and testified under oath that he knew judicially and personally that Tougaloo was in the first supervisors' district of Hinds county, and likewise in the first judicial district of Hinds county; he personally knew where the Western boundary line of the first...