Weaver v. United States, 19071.

• Decision Date: 05 February 1962
• Docket Number: No. 19071.,19071.
• Parties: Carl Turner WEAVER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

298 F.2d 496 (1962)

Carl Turner WEAVER, Appellant, v. UNITED STATES of America, Appellee.

No. 19071.

United States Court of Appeals Fifth Circuit.

February 5, 1962.

M. A. Marsal, Mobile, Ala., for appellant.

Ralph Kennamer and Vernol R. Jansen, Jr., U. S. Attys., Alfred P. Holmes, Jr., Asst. U. S. Atty., Mobile, Ala., for appellee.

Before RIVES and WISDOM, Circuit Judges, and CARSWELL, District Judge.

CARSWELL, District Judge.

This appeal was taken after appellant's conviction under a two count indictment charging him with violation of the Internal Revenue law relating to non-tax paid liquor, 26 U.S.C. § 5205(a) (2) and 26 U.S.C. § 7206(4).

Appellant contends that the Government failed to prove that the offenses were committed in Mobile, Alabama, as charged in the indictment. This is the sole issue before the Court here.

In the Government's opening statement, counsel stated that appellant was seen on "Sage Avenue here in Mobile;" and that appellant was driving his automobile "here in Mobile." The indictment charges that the offenses were committed in Mobile. While the above are not evidence they are factors which the jury may consider to infer that the offense was committed in the location as charged.

Proof of venue as a jurisdictional fact may be shown by circumstantial evidence as well as by direct evidence, and the venue may be deemed proven by inference drawn by the jury from the circumstantial evidence presented at time of trial, or from the record as a whole. Holdridge v. United States, 282 F.2d 302 (8th Cir. 1960).

In Dean v. United States, 246 F.2d 335 (8th Cir. 1957), the court stated:

"* * * The indictment charges the offenses as having been committed in `Kansas City, Missouri, in the Western Division of the Western District of Missouri.\' Government counsel in his opening statement prior to the introduction of any evidence recited that the various offenses were committed in Kansas City, Missouri. This, to be sure, was not testimony but it is part of the background. The case was tried in Kansas City and the witnesses who testified identified each transaction as having occurred at certain street corners or street numbers in Kansas City. As they were at the time of giving this testimony in Kansas City as were the jurors hearing the case we think, viewing the evidence in a light most favorable to the government, the jury may well have inferred that they were talking about Kansas City, Missouri."

Here the transcript reveals that the arresting officer testified that he was employed as an agent of the Alcohol and Tobacco Tax Division of the Treasury Department and was assigned on that day to Mobile, Alabama.

The testimony related to the streets in question by specific name, i. e., Sage, Dauphin, Lafayette, Old Shell Road, Grant Street. Moreover, the directional relationship of these streets was made quite clear, and included some indication of compass direction. Certainly, it cannot be said that these names are themselves commonplace. Indeed, their appellations are somewhat unique. This, together with a clear verbal account of their interlacing pattern placed on the record for the jury and for the trial Court a locale distinguishable by plain inference as Mobile, Alabama.

Absence of direct proof of venue will not defeat conviction where inferences of venue may properly be drawn from circumstantial evidence. George v. United States, 75 U.S.App.D.C. 197, 125 F.2d 559 (1942). If upon the whole evidence it may be inferred that the crime was committed where the venue was laid, that is sufficient. United States v. Chiarelli, 192 F.2d 528 (7th Cir. 1951), certiorari denied 342 U.S. 913, 72 S.Ct. 359, 96 L.Ed. 683 (1952).

There was sufficient evidence here, therefore, from which the jury could infer venue. It was not error for the District Court to deny motion for directed verdict or to deny judgment notwithstanding the verdict. Upon these grounds alone the conviction must stand, although the District Court in denying these motions did so by taking "judicial knowledge" of the fact that the streets were located in Mobile, Alabama. This was unnecessary in view of the reasons given above but in no way discloses error.

While there is a distinction between judicial knowledge and judicial notice, as used in the case before us, such distinction is largely academic. 20 Am.Jur. Evidence Sec. 21 at p. 52.

Judicial notice may be taken of facts known at once with certainty by all the reasonably intelligent people in the community without the need of resorting to any evidential data at all. Judicial notice may be taken without request by a party of such facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of...