Witcher v. State, 33767

• Decision Date: 24 January 1952
• Docket Number: No. 2,No. 33767,33767,2
• Parties: WITCHER v. STATE
• Court: Georgia Court of Appeals

Page 203

69 S.E.2d 203

85 Ga.App. 289

WITCHER v. STATE.

No. 33767.

Court of Appeals of Georgia, Division No. 2.

Jan. 24, 1952.

Syllabus by the Court.

1, 7. Proof that the crime was committed 'about a half mile below the city limits of Cleveland' is not proof of venue in White County, georgia.

2, 3, 4, 5, 6. The other special grounds of the motion for a new trial are not meritorious for the reasons stated in the opinion.

Irwin R. Kimzey, Clarkesville, C. H. Edwards, Cleveland, J. H. Crutchfield, Atlanta, Kimzey & Kimzey, Cornelia, for plaintiff in error.

Jeff C. Wayne, Sol. Gen., Sidney O. Smith, Jr., Gainesville, for defendant in error.

MacINTYRE, Presiding Judge.

The defendant, Charles Witcher, Jr., was indicted in the Superior Court of White County for murder and convicted of involuntary manslaughter in the commission of an unlawful act. The defendant's challenge to the array of jurors put upon him was overruled and he preserved his exceptions to such ruling of the trial court. His motion for a new trial, based upon the usual general grounds and nine special grounds, was overruled and he excepted.

1. Proof that the crime was committed 'about a half mile below the city limits of Cleveland' is not proof of venue in White County, Georgia. Upon proof that the offense was committed in the named county, the presumption arises that the county referred to is in this State. If the proof had shown that the crime was committed in White County, it would have been sufficient to show venue in White County, Georgia. Lewis v. State, 129 Ga. 731(2), 59 S.E. 782; Gibson v. State, 52 Ga.App. 297, 183 S.E. 83, 84. Or, if the proof had been that the crime was committed in the town or city of Cleveland, Georgia, the trial court could have taken judicial cognizance of the charter of Cleveland, Georgia, and its contents as stated in the Georgia statute, granting such charter, including the location of the boundaries of such city and since the charter designates Cleveland, Georgia, as being in White County, the court could take judicial cognizance notice that White County is in Georgia and that the crime was committed in that county. 'However, both the Supreme Court and this court have consistently ruled, since the case of Moye v. State, 65 Ga. 754, that proof that an offense was committed in a designated municipality is not of itself sufficient to show venue in any particular county in this state. Thus proof that the crime was committed 'in the lumber-yard of Mr. Sloan, in the city of Americus' was not sufficient proof of venue. Moye v. State, supra. Proof that the crime was committed 'in the city of Atlanta' was not sufficient proof of venue. Murphy v. State, 121 Ga. 142, 48 S.E. 909. Nor that the crime was committed 'in Lawrenceville in front of Dan Rutledge's store' sufficient. Cooper v. State, 106 Ga. 119, 120, 32 S.E. 23.' Gibson v. State, supra.

This case is differentiated from the case of Porter v. State, 76 Ga. 658, in that in that case the venue was made certain by the defendant's statement; the defendant there was charged with larceny from the house in stealing from the courthouse of Habersham county certain property belonging to the county, and the venue was laid in that county. In his statement to the jury the defendant stated: 'I was at work on the jail here in this place'; and the Supreme Court in passing on the question asked: 'What place?' and answered, 'Of course, the place where the case was being tried, which is Clarkesville, the county site of Habersham county, and this court will officially know that this case was tried here, and that Clarkesville is the place where the court sits for Habersham county.' See Beatty v. City of Atlanta, 15 Ga.App. 515, 518, 83 S.E. 885.

The instant case is also differentiated from the case of Davis v. State, 66 Ga.App. 214(1), 17 S.E.2d 554, where there was evidence introduced during the trial that the crime was committed in 'here in Decatur' and the charter of Decatur showed that all of the city of Decatur was in DeKalb county, Georgia. Thus the court in that case could take judicial cognizance of the fact that Decatur was in DeKalb County and that DeKalb County is in Georgia, and the proof in that case was, therefore, sufficient to show that the crime was committed in DeKalb County, Georgia.

This case is also differentiated from the case of Seabord Air-Lane Railway v. Peeples, 12 Ga.App. 206, 208, 77 S.E. 12, 13, in that in that case there was undisputed evidence that the tort was committed 'between Kingsland and St. Mary's river' and the court said in that case: 'The courts take judicial notice of incorporated towns and of the boundaries of counties. From the Acts of 1908, p. 815, we know, as did the trial judge, that Kingsland is in Camden county. It is also a matter of judicial knowledge that the St. Mary's river is the southern boundary of Camden county. Hence the tort, if committed at all, must have been committed in Camden county.' The evidence in that case showed that the tort was committed between two termini the locations of...