Dorsey v. State , 141 Miss. 600 ( 1926 )

The appellant was tried and convicted in the circuit court on the charge of selling intoxicating liquor, sentenced to pay a fine of five hundred dollars and to serve a term of ninety days in jail, from which judgment he appeals here.

The record shows that the state failed to prove the venue as laid in the affidavit, the prosecution having been begun in the justice of the peace court, the affidavit alleging that the offense was committed in district No. 1 of Leake county. None of the witnesses who testified in the case testified that the offense occurred in the state of Mississippi.

We have held repeatedly that venue is jurisdictional and must be proven, and that the question could be raised for the first time in this court. Norwood v. State, 129 Miss. 813, 93 So. 354; Slaton v. State, 134 Miss. 419, 98 So. 838; Sullivan v. State, 136 Miss. 773, 101 So. 683; Sandifer v. State,136 Miss. 836, 101 So. 862; Quillen v. State, 106 Miss. 831, 64 So. 736; Cagle v. State, 106 Miss. 370, 63 So. 672;Monroe v. State (Miss.), 104 So. 451; Pickle v. State,137 Miss. 112, 102 So. 4; Carpenter v. State (Miss.), 102 So. 184. The state, however, contends that the facts in the record are sufficient to show circumstantially that the offense was committed in district No. 1, Leake county, Miss.

It is true that venue may be proven by circumstantial evidence, but to so prove it the circumstances must not only be consistent with the defendant's guilt, but it must be absolutely inconsistent with any other reasonable theory. There is nothing in the record to identify with the requisite certainty the place of the commission of the offense. There were no questions asked with reference to the place where the trial was being conducted, nor was any other point proven to be in the state of Mississippi which would locate the distance with reasonable certainty. It is an easy matter to prove the venue in a criminal case ordinarily, and it is much safer to prove it by direct and positive evidence where that can be done.

The record did not contain a transcript from the justice court to the circuit court, and when the record reached here the attorney-general caused a certiorari to be issued commanding the clerk below to certify to the court a copy of the record of the proceedings in the justice court to the circuit court. It appears that after this writ was issued the justice of the peace who tried the case originally certified to the circuit court a transcript of his record. The certificate of the justice of the peace was dated November 30, 1925, whereas the trial occurred in the circuit court in November, 1924. This justice of the peace transcript was marked filed November 30, 1925, by the clerk of the circuit court.

In order for the court to have had jurisdiction to try the case, the transcript of the record should have been before the court at the time of the trial, and we cannot entertain jurisdiction and the court below could not acquire jurisdiction subsequent to the rendition of the judgment. It must have had jurisdiction at the time.

This is also a fatal error, for which the judgment must be reversed and the cause remanded.

Reversed and remanded.