State v. Fabian

• Decision Date: 29 May 1972
• Docket Number: No. 46762,46762
• Citation: 263 So.2d 773
• Parties: STATE of Mississippi v. Bobby J. FABIAN.
• Court: Mississippi Supreme Court

Page 773

263 So.2d 773

STATE of Mississippi v. Bobby J. FABIAN.

No. 46762.

Supreme Court of Mississippi.

May 29, 1972.

A. F. Summer, Atty. Gen. by Marshall G. Bennett and Edwin A. Snyder, Sp. Asst. Attys. Gen., Jackson, for appellant.

Garner, Whitten & Garner, Jon B. Love, Hernando, for appellee.

SUGG, Justice.

Bobby J. Fabian, appellee and cross-appellant hereinafter referred to as appellee, was indicted by the Grand Jury of Marshall County, Mississippi for the murder of George Lenox. Appellee filed a motion to quash the indictment for lack of jurisdiction and assigned the following grounds:

1. That there has been no crime committed in the State of Mississippi and therefore the State of Mississippi has no jurisdiction under this indictment.

2. That the indictment herein does not state the violation of any law of the State of Mississippi.

When the motion to quash came on for hearing, appellee refused to offer evidence in support of his motion and the Circuit Court overruled the motion. The Court, on its own motion, inquired into the question raised by the motion to quash, and, after a lengthy hearing, held that it did not have jurisdiction because the proof did not show beyond a reasonable doubt that the fatal shots which killed decedent were fired in the State of Mississippi.

Appellee also filed a motion to suppress a confession signed by him on January 21, 1971 including any statements or admissions made by him. The court overruled the motion to suppress the confession and appellee filed a cross-appeal from this action of the court.

The first question to be considered is whether or not the court was correct in its preliminary examination of the question of venue.

Under Mississippi criminal procedure, questions of fact as to venue are for the determination of the jury and are not to be decided by the trial court. An accused who, by motion, seeks to challenge the venue of the court on the ground the crime charged was committed in another state or another circuit court district, is not entitled, as a matter of right, to have a preliminary evidentiary hearing with a determination by the trial court of the question raised in advance of trial.

Rare and exceptional circumstances might justify the trial court, in the exercise of sound judicial discretion, in granting a hearing upon such a motion. In such an event, the burden of going forward must rest upon the movant, and the motion should be denied if the evidence adduced, whether pro or con, would be capable of supporting a factual finding by the jury on the trial that venue of the crime was as charged in the indictment.

Upon the failure or refusal of the movant to go forward with proof in support of his motion, it should be overruled. For the purpose of such a hearing, an indictment establishes a prima facie case that the crime was committed at the place charged therein. In the present case, the court correctly overruled the motion of accused because of his refusal to offer any evidence whatever.

The Court elected, in the exercise of its judicial discretion, after overruling the motion, to inquire preliminarily into the question of its jurisdiction based upon venue.

In such cases, the court need only determine that there is relevant and competent evidence supporting the allegations of the indictment with respect to venue and that this evidence is sufficient to warrant submission of the issue to the jury for determination. This is true, of course, where countervailing evidence is offered. If there is no evidence whatever supporting the allegation of venue, then the court will dismiss the case for that reason without prejudice to try the case in the court having venue.

The procedure adopted in this case is novel and hitherto unknown to Mississippi criminal practice and procedure. While its use is not to be entirely excluded, and it must be regarded as a matter lying within the range of the permissible exercise of sound judicial discretion, it should be permitted only rarely and under the most exceptional circumstances.

We next consider the evidence adduced at the hearing and the applicable law to determine if the Court erred in holding that the State failed to prove beyond a reasonable doubt that Lenox was killed in Marshall County, Mississippi.

The body of decedent was found in the State of Mississippi and the evidence showed that he died as a result of two gunshot wounds fired by a pistol.

In other jurisdictions the rule has been announced that the finding of a dead body in a particular county raises a presumption, or supports an inference, that the killing took place there. Another well known presumption is that life, like any other condition, continues until there is evidence to the contrary. ¹ We adopt both presumptions as a rule in Mississippi.

In United States v. Rees, 193 F.Supp. 849 (Md.1961) the United States District Court stated:

The evidence justifies the inference that both Mrs. Jackson and Susan were killed at or near the spot where they were buried.

That inference is aided by a number of presumptions. The first is the reasonable presumption, generally recognized, that a person died in the state and county where his body was found. In Breeding v. State, 220 Md. 193, at page 200, 151 A.2d 743, at page 747, the court said: 'Finally, the appellant contends that the State failed to prove that the killing took place in Caroline County or in Maryland. It is true that the State of Maryland cannot punish for a crime committed in another state, Bowen v. State, 206 Md. 368, 111 A.2d 844. But venue may be established by circumstantial evidence. The cases hold that the finding of a dead body in a particular county raises a presumption, or supports an inference, that the killing took place there.' Some of the authorities speak in terms of venue, rather than jurisdiction but it is clear that the prosecution must show that the crime was committed in the state as well as in a particular county, and the facts support the inference of the one as well as of the other. See People v. Peete, 54 Cal.App. 333, 202 P. 51, 64; Commonwealth v. Costley, 118 Mass. 1, 26; Hawkins v. State, 60 Neb. 380, 83 N.W. 198; Wharton on Homicide, 3d ed., 1907, pp. 901-2.

There is also the presumption that life, like any other condition, continues until there is evidence to the contrary. ¹¹

Wigmore on Evidence, sec. 2531, p. 462, 3d ed., and cases cited; McCormick on Evidence, p. 462; Allen v. Mazurowski, 317 Mass. 218, 57 N.E.2d 544. (193 F.Supp. at 859.)

In 22 C.J.S. Criminal Law § 185(17) the rule is stated as follows:

Aside from any statutory provision, the finding of the body in a county would warrant a finding that the murder was committed in that county. One should not be permitted to escape punishment for murder because he is clever enough to conceal the place where the victim was killed or died.

The presumption that death occurs where a body is found coupled with the other evidence heard by the court was sufficient to establish the venue of the crime in Marshall County, Mississippi. The proof of venue was by circumstantial evidence.

In Poore v. State, 205 Miss. 528, 37 So.2d 3, suggestion of error overruled, 205 Miss. 528, 37 So.2d 357, certiorari denied 336 U.S. 992, 69 S.Ct. 656, 93 L.Ed. 1084, rehearing denied, 336 U.S. 947, 69 S.Ct. 810, 93 L.Ed. 1104 (1948), we held that venue can be proved either by direct or circumstantial evidence.

We are not unmindful of the rule in Mississippi that when venue is shown by circumstantial evidence it must be shown to the exclusion of every other reasonable hypothesis. 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 element of an offense, must be made beyond a reasonable doubt and when circumstantial evidence is relied upon to prove venue, it must not only be consistent with the theory sought to be proven, but must be absolutely inconsistent with any other theory as pointed out in Ussery.

The presumption that the killing took place where the body was found is a rebuttable presumption; however, when this fact is shown the state has met all requirements of venue in a murder case to that point. If evidence is offered to rebut this presumption, the question of venue is a matter for the jury to determine under proper instructions.

Section 2430 of the Mississippi Code of 1942 Annotated (1956) provides:

Where the mortal stroke or other cause of death occurs or is given or administered in one county, and the death occurs in another county, the offender may be indicted and tried in either county; and so, also, if the mortal stroke or cause of death occur or be given or administered in another state or country and the death happen in this state, the offender may be indicted and tried in the county in which the death happened.

Section 2430, supra, was held constitutional in Caldwell v. State, 176 Miss. 80, 167 So. 779 (1936).

Appellee attacks the constitutionality of Section 2430, supra, on the ground that the United States Supreme Court has, since the decision in Caldwell, supra, held that the first eight Amendments to the United States Constitution apply to states by virtue of the Fourteenth Amendment. Crapps v. State, 221 So.2d 722 (Miss.1969).

Appellee states in his brief that he has been unable to find any case directly in point in support of his argument that Section 2430, supra, is unconstitutional because it violates the provisions of the Sixth Amendment to the Constitution of the United States.

Our research does not reveal a case precisly in point but in Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967), certiorari denied, 389 U.S. 848, 88 S.Ct. 71, 19 L.Ed.2d 116, rehearing denied, 389 U.S. 997, 88 S.Ct. 461, 19 L.Ed.2d 499, appellant was convicted of murder in Ohio...