Skelton v. State , 31 Okla. Crim. 343 ( 1925 )

Since filing the original opinion in this case, a petition in error has been duly filed, calling the attention of the court to the fact that in the trial of the case below there was no proof of venue, and that this question was presented in the briefs and overlooked by the court. An examination of the record and briefs discloses that this contention is well founded. A careful examination of the record discloses that there was no proof of venue in the trial of this case. The proof is that the defendant was seen in Jim Smith's restaurant, and his car was searched in front of Butler's garage. There is no evidence that these places were in Dewey county, nor is there any other evidence from which the conclusion may reasonably be drawn that the offense charged was committed in Dewey county.

The venue of an offense must be proven as charged. Brunson v. State, 4 Okla. Crim. 467, 111 P. 988; Litchfield v. State,8 Okla. Crim. 164, 126 P. 707, 45 L.R.A. (N.S.) 153. It may be proven by circumstantial evidence, and it need not be proven beyond a reasonable doubt. Gritts v. State, 6 Okla. Crim. 534, 118 P. 673,120 P. 669; Harvey v. Territory, 11 Okla. 156, 65 P. 837; Groh v. State, 30 Okla. Crim. 396, 236 P. 435. It is not necessary that any witness state directly that the crime was committed in the county of the prosecution. It will be sufficient if the place of commission be so described that the court may take judicial notice that it is in such county. Hunter v. State,6 Okla. Crim. 446, 119 P. 445.

In this case, however, neither Jim Smith's restaurant nor Butler's garage is so described or identified that the inference may reasonably be drawn, or that the court may take judicial notice, that such places were in Dewey county.

The case is therefore reversed and remanded.

BESSEY, P.J., and DOYLE, J., concur.