Gates v. State , 73 Ga. App. 824 ( 1946 )

There was sufficient evidence to establish the venue of the crime.

DECIDED MAY 10, 1946. The defendant was convicted in the superior court of Fulton County of perjury. He filed his motion for a new trial on the general grounds and added one special ground. The judge overruled the motion. On this judgment the defendant assigns error. The only question presented to this court for decision is whether the venue of the case was proved.

As to whether the State proved the venue to be in Fulton County, the evidence substantially shows: Counsel for the State and the defendant entered into a stipulation. This stipulation is to the effect that there was pending a special presentment, before the grand jury, of the State against a third person for the offense of lottery, and that the defendant in the instant case appeared as a witness before the grand jury. Certain direct questions were propounded to him, and he answered them in the negative. The a witness before the grand jury. Certain direct questions were propounded to him, and he answered them in the negative. The indictment is to the effect that the defendant swore falsely when he did not answer the questions in the affirmative. The written stipulation admitted in evidence was headed in part "Fulton Superior Court," and further contained the statement, "a special presentment had been drawn and submitted to said grand jury," which charged two defendants "with keeping, maintaining, and operating a lottery known as the number game . . in above State and county." This stipulation was made a part of the record in the instant case. Also, when the defendant in this case was on the stand at the courthouse in Fulton County, during the course of the trial, while making his statement, he said, among other things: "I could not go downstairs and prosecute that white man and woman and put them on the stand [gang]. I could not when I didn't work for them. I could not. I was indicted." (Italics ours.) The defendant in his statement also said in effect that he had gone before the grand jury and had gone to Mr. Shorty Andrews' office more than once to discuss the charges in the presentment pending before the grand jury, before which he had been called to testify as a witness and before which the evidence on which the instant perjury charge was based. The court judicially knows that the superior court of Fulton County embraces Fulton County only. The instant case shows that the trial was conducted at the county site in the courthouse in Fulton County, and that "downstairs" from the floor on which the defendant was making his statement was in Fulton County, Georgia. The grand jury is but an arm of the superior court of Fulton County, which sits within the county. See Code, §§ 24-2609, 24-3001, 24-3003. In Womble v. State,107 Ga. 666 (33 S.E. 630), it was said: "When all of the evidence introduced on the trial of a criminal case strongly and decidedly tended to show that the offense was committed in the county where the trial was had, and there was no evidence warranting even a bare conjecture that it was committed elsewhere, it will be held that the venue was sufficiently proved." See Hays v. State, 25 Ga. App. 591 (103 S.E. 730); Attaway v. State, 64 Ga. App. 319 (13 S.E.2d 99);Wardlow v. State, 66 Ga. App. 575 (18 S.E.2d 571);Roberson v. State, 69 Ga. App. 541 (26 S.E.2d 142);James v. State, 71 Ga. App. 867 (32 S.E.2d 431).

The court did not err in overruling the motion for a new trial for any of the reasons assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.