Horton v. State , 123 Miss. 525 ( 1920 )

Holden, J.,

delivered the opinion of the court.

The appellant was convicted of the crime of seduction. The record fails to disclose that the state proved the venue of the offense, and for this jurisdictional error the judgment of the lower court must be reversed.

The contention by the state that, since no special exception was taken on account of the failure to prove the venue in the lower court, such error cannot be urged-for the first time here, is untenable. The Burnett Case, 72 Miss. 994, 18 So. 432, was a decision rendered under section 4370 of the Code of 1892, but this section appears as 4936 of the Code of 1906 (section 3212, Hemingway’s Code), with the following added provision:

“Except where the errors or omission are jurisdictional in their character.”

Since the adoption of the Code of 1906 this court lias several times held that the omission to prove venue is jurisdictional in its character, and that such omission may be assigned as error on the hearing of the appeal, even though exception ivas not taken in the trial court. Monroe v. State, 103 Miss. 759, 60 So. 773; Quillen v. State, 106 Miss. 831, 64 So. 736.

We omit passing upon the other errors assigned, as they may not arise again on a second trial.

Reversed and remanded.