State v. Young ( 1981 )

OPINION ON PETITION TO REHEAR

BYERS, Judge.

The State has filed a petition to rehear in which they say the opinion of this Court misapprehended the facts in the record on the issue of venue.

In the trial of this case, the trial judge took judicial notice Johnson City was in Washington County. As we said in the original opinion, this was not sufficient to show venue because Johnson City is in two counties, and further, judicial notice of streets cannot be taken.

In the hearing on the motion for a new trial, the trial judge stated all of the street where the offense occurred is in Washington County.¹

This does not answer the problem. The taking of judicial notice of a fact is permitted because such fact noticed is so universally and commonly known as to carry its own indicia of correctness. Streets, absent unusual circumstances, do not meet the universal and common knowledge criterion for judicial notice. It is true, a judge might know a street to be in a particular location. However, the judge’s knowledge of such, if not a matter commonly and universally known, does not qualify such fact to receive judicial notice.

Beyond this, the taking of judicial notice is a substitute for the necessity of evidence to prove a fact. The fact, once judicially noticed, is for the jury to consider in determining the issues in a case.

Venue is a question for the jury to determine from the evidence in the case. The judicial notice of a fact, even if the fact noticed qualified therefor, at a new trial motion does not supply the factual deficiency of venue upon which the jury acted.

The petition to rehear is denied.

WALKER, P. J., and DWYER, J., concur.

1 . The transcript of the motion for a new trial was not filed with the record in this case when originally received by the Court.