Anderson v. Commonwealth , 100 Va. 860 ( 1902 )

Cardwell, J.,

delivered the opinion, of the court.

This is a writ of error to a judgment of the Circuit Court of Campbell _ county affirming the judgment of the County Court of that county, sentencing plaintiff in error to the penitentiary for a term of eight years for murder.

It is argued on behalf of the Commonwealth that the bills of exception taken by plaintiff in error at his trial are not properly a part of the record here, because not tendered and signed during the term at which he was tried.

All that can be alleged in support of this contention is that the record shows that the defendant (plaintiff in error) was allowed thirty days in which to tender his bill of exception, and that he was sentenced at the same term, but that he took the thirty days or any part thereof nowhere appears. On the contrary, it appe'ars from each bill of exception, under the signature and seal of the presiding judge, that it is “made a part of the record,” and the clerk certifies the whole, including the bills of exception, as the record of the proceedings at the trial.

Hothing affimatively appealing in the record to show irregularity in the proceedings, it is to be taken as importing absolute verity, and presumptions of irregularity are not permitted. Gilligan’s Case, 99 Va. 822; Reed’s Case, 98 Va. 817; Dove’s Case, 82 Va. 301.

Of the assignments of error, two' of them only require our consideration, as the others are not likely to aiise upon another trial of the cause.

Exception is taken to the ruling of the trial court permitting the introduction of evidence showing that plaintiff in error, six weeks after the homicide with which he is charged, and twelve days 'before the term of the court at which he was tried began, attempted to break jail and escape.

This ruling is not erroneous. When a suspected person attempts to escape or evade a threatened prosecution, it may be argued that he dora so from consciousness of guilt; and though the inference is by no means strong enough by itself to warrant a conviction, yet it may become one of a series of circumstances from which guilt may be inferred. An attempt to escape or evade prosecution is not to be regarded as a part of the res gestae, but only as a circumstance to. be considered by the jury along with the other facts and circumstances tending to establish the guilt of the accused. The nearer, however, to the commission of the crime committed, the more cogent would be the circumstance that the suspected person attempted to escape, or to evade prosecution, but it should be cautiously considered, because it may be attributable to a number of other reasons, than consciousness of guilt. Wharton’s Crim. Ev., secs. 750-51.

The remaining assignment of error is the refusal of the court to set aside the verdict on the ground that it is contrary to the law and the evidence.

The indictment charges that the murder, for which the plaintiff in error was tried and convicted, took place in the county of Campbell, but there is not the slightest proof in the record that such is a fact. The only proof as to the location of the crime is that it took place at “Anderson’s Store,” about a quarter of a mile or more from “Lynch’s” or “Lynch’s Station,” but neither “Lynch’s Station” nor “Anderson’s Store” is shown to be located in Campbell county.

It is contended, however, that the court should take judicial notice that “Lynch’s Station” is in Campbell county, and deduce from that fact that “Anderson’s Store” is also in that county.

“When a crime is committed in an incorporated town, the court will notice in what county the town is situated.” State v. Reader, 60 Iowa, 527. It was, therefore, held in Sullivan v. People, 122 Ills. 385, 13 N. E. 248, that proof that a crime was committed in Chicago is proof that it was committed in Cook county, judicial notice being taken that Chicago is in Cook county. But courts will not take judicial notice that a particular locality is within a county; nor of the local situation and distances in a county. Note to Oliver v. State of Alabama, 4 L. R. A. 33, and authorities cited.

We have been cited no authority, and we have been unable to find any, for taking judicial cognizance of the fact that a point a given distance from Lynch’s Station, an unincorporated hamlet or village, is in the county of Campbell.

All crimes are local, and must be tried in the court which has jurisdiction over the locality where they are committed. The ■burden is just as great on the Commonwealth to prove that the offence was committed within the jurisdiction of the trial court as it is to prove the commission of the offence itself. Fitch’s Case, 92 Va. 824, and authorities cited; also Butler’s Case, 81 Va. 163; and Savage’s Case, 84 Va. 585.

There being no proof in this case of the jurisdiction of the County Court of Campbell to try it, the Circuit Court erred in affirming the judgment of the County Court; therefore, its judgment must be reversed and annulled, the verdict of the jury set aside, and a new trial awarded.

Reversed.