McFetridge v. State ( 1924 )

ON PETITION FOR REHEARING A petition for rehearing has been filed in this cause which, if determined by the general expressions in the petition and brief in support thereof, would seem to be based upon the ground of fundamental and material error in the instructions to the jury depriving the plaintiff in error of a fair and impartial trial. It is stated as the first ground of the petition that the instructions as a whole presented an erroneous view of the law and the burden of proof as applied to the facts in the case; and in the third ground, that the court failed to instruct "upon its own initiative" in matters affecting the substantial rights of the plaintiff in error. But the point chiefly discussed in support of the petition relates to the matter of venue; and the others may be regarded, we think, as merely incidental, intended to emphasize the importance of that question and counsel's view of the gravity of the alleged error in that matter, which might justify its consideration by this court, notwithstanding that the exceptions in that respect were not properly preserved under our well-settled rules of procedure to entitle them to consideration in this court on error. That question at least is the only one discussed in the present brief which, in our opinion, might have sufficient merit to justify reconsideration. Before concluding, however, we shall refer to some points made respecting instructions upon other points given or refused, to explain our view of their effect under the charge now made respecting the fairness of the trial. For under the rule of practice stated in the original opinion, such matters would not be otherwise entitled to consideration here.

The trial court, by an instruction stating it to be incumbent upon the prosecution to establish all the material allegations of the information beyond a reasonable doubt, and thereupon defining such material allegations "as here used," meaning of course the allegations necessary to be shown beyond a reasonable doubt, omitted a reference to the allegation that the crime charged was committed in the county of Laramie and state of Wyoming. But in a subsequent instruction the court did charge as follows:

"It is also necessary in order to convict the defendant, that you find that the crime charged in the information herein was committed in Laramie county, Wyoming. However, it is not necessary, that that fact, if it be a fact, be established beyond a reasonable doubt. If, therefore, you find beyond a reasonable doubt that the crime charged in the information was committed by this defendant, and you further find by a preponderance of the evidence that such crime was committed in Laramie County, Wyoming, it will be your duty to convict him and return your verdict accordingly."

The record does not show an exception to either of those instructions. But exceptions were reserved to the refusal of certain instructions referring to the matter of venue, requested by the defendant, plaintiff in error here. They each declared in substance that the alleged fact that the crime charged was committed in Laramie County, Wyoming, must be proved beyond a reasonable doubt to justify a verdict of guilty. Neither of said instructions, however, was confined to that particular matter, but each included other matters within the declaration of the necessity of proof beyond a reasonable doubt; and they each might, perhaps, have been refused because of that fact. For we think it possible that some of the added matters might have been deemed confusing or misleading without explanation or modification. But for the purpose of this discussion the fact may be assumed, if entitled to consideration here, that such instructions were refused because requiring proof of venue as alleged beyond a reasonable doubt; and that was assumed in the original opinion.

Without deciding the question raised by the conflict between said given and requested instructions, it was held by the former opinion that there was sufficient, and, indeed, "ample" evidence to sustain the verdict upon the question of venue; and that was intended to express our view of the sufficiency of the evidence upon the theory that the law might require the venue to be proven beyond a reasonable doubt. And upon a further consideration of the facts for the purpose of disposing of the present application, we see no reason for a different conclusion as to that matter. It was then deemed unnecessary, however, to determine the degree of proof necessary upon that subject, and thus decide whether or not the court had erred in refusing the instructions requested as aforesaid, for the reason that the requested instructions were grouped in the defendant's motion for a new trial with other requested instructions refused which were not objected to in this court, thereby bringing the case within a settled rule of practice in this court that error so alleged must be regarded as including the grouped instructions as a whole, and that the assignment cannot be sustained if any one of the group is correct; citing Dickerson v. State, 18 Wyo. 440, 111 P. 857. See also Richey v. State, 28 Wyo. 117, 201 P. 154, 205 P. 304, where, asserting and applying the principle that an aggrieved party must definitely point out the ruling of which he complains, it was held that a general exception to a group of instructions will be disregarded if any one of the group be correct.

Counsel now appearing for plaintiff in error assert in their brief that they are not impressed with the merit of the said rule of practice so established in this jurisdiction, without, however, contending that it should be abandoned or attempting to show wherein it is or might be improper or unreasonable. But it is argued that this case comes within an exception to said rule also established, as claimed, by certain of our decisions cited in the brief, viz: That it need not apply where the record shows fundamental error in the instructions as a whole, or in the proceedings throughout the trial, having the effect of depriving the party of a fair and impartial trial. And it is contended that fundamental error within the meaning and effect of that exception is disclosed by the record in this case. Before proceeding to a discussion of that contention, we think it not improper to say, in view of the implied criticism of the rule, that we remain convinced of its reasonableness and propriety. It seems to be quite generally accepted and applied by the appellate courts in this country; and we believe it to be based upon good and substantial reasons. The rule is stated in 29 Cyc. at pages 949 and 950, in the article upon the subject of "New Trial." We quote therefrom:

"By the weight of authority, the particular instruction or instructions improperly given or refused, or the particular errors or omissions in the charge, must be pointed out with reasonable certainty. * * * Where several instructions are grouped in one specification, they will be examined only so far as is necessary to determine whether all were regularly given or refused. In other words, if the action of the trial court was correct in regard to any one of the instructions so grouped, the assignment must fail."

The paragraph from which we have quoted was cited in the Dickerson case. Many cases are cited in the note to the paragraph on page 951, and later cases adhering to the rule may be found cited in subsequently published volumes of annotations, including the Dickerson case and the following: Eberts v. Mt. Clemens Sugar Co.,182 Mich. 449, 148 N.W. 810; Cowperthwaite v. Brown,82 Neb. 327, 117 N.W. 709; Fletcher v. Brewer, 88 Neb. 196,129 N.W. 288. The court say in the cited Michigan case:

"Error is assigned because the court denied the defendant's motion for a new trial. Turning to the motion, we find that the second ground stated is that the court erred in not charging the jury as requested by the defendant in its several requests, which were refused by the court. An examination of the record discloses that defendant's requests to charge cover six pages of the printed record. An examination of them shows that some were given by the court, and some clearly should not have been given. The assignment of error is too general to be considered, under our repeated decisions" citing cases.

In the Nebraska case of Cowperthwaite v. Brown, where two separate assignments were (7) that the court erred in giving the first, second, third, fourth and fifth paragraphs of the instructions asked for by the plaintiff, and (9) that the court erred in giving the first, second, third and fourth paragraphs of the instructions given on its own motion, the court said:

"These assignments in the motion for a new trial were not sufficient to lay the foundation for the consideration of the instructions here further than to ascertain whether any one of the instructions in either group correctly stated the law."

In Fletcher v. Brewer, the same court say:

"The rule has long been established in this court that parties complaining of errors at the trial must point them out specifically to the district court in the motion for a new trial. Where a general assignment is made that the court erred in giving a group of instructions, it is not error for that court to overrule the motion for a new trial if any one of the instructions in the group has been properly given."

The rule thus established as the result of judicial decisions is in full accord with, and necessary, we think, to render effectual, the spirit and purpose of a written rule in force in this court since early territorial days, adopted pursuant to statutory authority, requiring as a condition to consideration on error the making, and an exception reserved to the overruling of, a motion for a new trial in the court below, as to any matter which could properly have been assigned as a ground for such a motion; the manifest purpose of which was and is that the trial court shall be first advised of alleged error respecting any such matter and afforded an opportunity to consider and correct the same. Wilson v. O'Brien, 1 Wyo. 42. Obviously, that rule would be rendered of slight or no effect in many if not most cases if a general averment or assignment of error of law, without designating the particular ruling or rulings, should be held sufficient. A situation might then be presented imposing upon the trial court the necessity of examining the entire record of the proceedings to ascertain possible error. And in the case of instructions given or refused, a mere general exception to all, or all of specified paragraphs, in and as a group, or a general assignment of error respecting them in a like manner, fails to suggest or point out particular error claimed to have been committed, as we believe to be contemplated by the rule. Such a practice, therefore, is to be condemned, if we are to insist upon a compliance with a procedure established and maintained more than half a century in this jurisdiction. The fact that through ignorance of our rules of procedure, or carelessness, the right to insist in this court upon a consideration of a ruling by the court below may occasionally be lost to a party, constitutes no proper ground for abandoning the rule aforesaid or for establishing an exception to it.

The abstract principle behind the rule is usually applied and has been applied in this court to other matters of procedure. Thus, in North Platte Milling Co. v. Price, 4 Wyo. 293, it was held that where the overruling of a joint motion for a new trial was clearly right as to one of the parties, it was properly overruled as to both. And in Stickney v. Hughes,12 Wyo. 397, 75 P. 945, it was held that where an offer of proof is made as a whole, some of the facts included in the tender being admissible and others inadmissible, the refusal of the court to separate them and admit such parts as are competent will not be error, although the court may, in its discretion, do that.

As above explained, it is here sought to avoid the application of the rule upon the ground of such fundamental error in the instructions as to deprive the accused of a fair trial, and Palmer v. State, 9 Wyo. 40,59 P. 793, is cited in support of the position taken. The accused in that case was charged with murder and convicted of manslaughter; and the cause was remanded for a new trial by this court upon a reversal of the judgment, upon the ground of error in instructions relating to the right of the defendant to resist when attacked, as he was, in his own house, to which he had fled to escape threatened bodily injury at the hands of the deceased. That was the vital question in the case upon the facts. And the court, after stating the facts, which the jury were authorized to find upon the evidence, said:

"With these facts characterizing the case, all instructions which informed the jury that it was the duty of the defendant to retreat before he would be justified in whatever resistance might be, or might reasonably seem to be, necessary against the assault of the deceased, were necessarily inapplicable to the evidence, misleading and prejudicial to the defendant. * * * That it was material can not be doubted. Indeed, it went to the very substance of the defense."

One instruction was given which appeared to be correct, but so inconsistent with others, upon the question, that the court expressed its inability to determine whether the jury had followed the correct or erroneous statement of the law. Upon the contention that sufficient exception had not been taken to entitle the error in the instruction to be considered, it was said that the exception was to the charge itself and sufficient in that case for the reason that "the instructions for the state as a whole present an erroneous view of the law as applied to the facts."

It appears clearly from the opinion, especially the concluding part, that the court considered the case to have been submitted upon a fundamentally erroneous theory of defendant's substantial rights as one assaulted in his own house, permitting him to be convicted when he may have been entirely within the rights accorded him by the law. Thus the opinion concludes:

"But it was uncontroverted upon the former trial that the deceased, after assaulting the defendant and threatening his life, pursued him, invaded his house, and assaulted him there with the avowed purpose of killing him. * * * The person so assaulted has the right to defend himself and to pursue his adversary until he has freed himself from all danger. Whether the defendant kept himself within these principles, is the issue which should be presented to the jury for decision."

The other cases wherein questions have been considered by this court, in the absence of exceptions properly taken and shown by the record, were capital cases, and all that was said therein upon the subject of the right to such consideration was limited to cases involving capital punishment. Parker v. State, 24 Wyo. 491,161 P. 552; Cirej v. State, 24 Wyo. 507, 161 P. 556; Omaha v. State, 24 Wyo. 513, 161 P. 558. In each of these cases the trial court had erroneously defined murder in the first degree, through an incorrect explanation of premeditated malice, and had stated, in a manner likely to mislead the jury, the duty of the court as to sentence in case of a verdict qualified, as allowed by statute, with the words "without capital punishment." And in one or more of them other material errors also appeared. It was said in Parker v. State:

"The taking of the life of a human being as a punishment for crime has not in later years met with general approval; and appellate courts have inclined to the view that in capital cases it is not only their right but their duty to examine the record for the purpose of ascertaining whether or not the defendant has been deprived of his constitutional right to a fair and impartial trial. But it is only in those cases where it clearly appears that such fundamental errors have been committed on the trial as to deprive the defendant of his substantial rights, or that the ruling, decision, or other matters complained of clearly appear to have been prejudicial to the defendant that the judgment should be reversed; and especially so where exceptions have not been timely taken, or the errors have not been fully stated in a motion for a new trial. * * * However, if it clearly appears from the record that such fundamental and prejudicial error has been committed as to amount to a denial of substantial justice, or to deprive the defendant of a fair trial, the court should not hesitate to reverse the judgment and grant a new trial, although proper exceptions were not taken at the time. * * * The case being a capital one, and as the judgment if enforced will deprive a human being of his life, we have deemed it our duty to look into the record for the sole purpose of ascertaining whether or not such fundamental error was committed on the trial as to deprive the defendant of his constitutional right to a fair trial; and in doing so we have followed the humane rule adopted by other appellate courts, by considering some errors which appear to us to be fundamental, although not shown by the record to have been excepted to at the time."

In an earlier capital case, Seng v. State, 20 Wyo. 222,122 P. 631, it appearing that the record was insufficient to present any alleged error argued in the brief of counsel for plaintiff in error, the court by Beard, then Chief Justice, who later wrote the opinion in the Parker case, said:

"On the imperfect record presented we might well dispose of the case without further consideration. But the case being an important one, involving the life of the plaintiff in error, we have carefully examined not only the record properly before us, but also all of the papers on file, including the purported evidence, and we fail to find anything therein that leads to the conclusion that he did not have a fair trial."

And, holding that the instructions given to the jury were as favorable to the defendant as the law would warrant, and that the evidence, assuming it to be shown correctly and in full by the transcript of the reporter's notes, fully supported the verdict of the jury, the judgment was affirmed, and the sentence of capital punishment ordered executed. In the Dickerson case aforesaid it was stated by the writer hereof, speaking for the court in disposing of the petition for rehearing, that a certain instruction defining reasonable doubt was correctly disposed of upon the original hearing, without consideration of its merits, on the ground that it was not mentioned in the motion for a new trial except as one of a group excepted to, following which it was said that the rule followed in Palmer v. State was not applicable to that, the Dickerson case. The Dickerson case was fully as important as the one now under consideration, for the accused was therein charged with the crime of perjury and convicted, and the judgment was affirmed.

The effect and applicability of the rule stated in the Palmer case was considered also in Richey v State, wherein the charge, as in the case at bar, was the larceny of cattle, and the court's instructions, which had been excepted to only as a group, were examined to ascertain (1) whether as a whole they presented an erroneous view of the law as applied to the facts, and (2) whether it might be said that all of the group so excepted to were erroneous. And both of the suggested questions were answered in the negative, the court saying:

"We repeat, the issues in the case were simple, and they were no doubt well understood by the jury. And in view of that, and the convincing character of the evidence pointing to defendant's guilt, we are satisfied that the verdict was not the result of any erroneous statements in the instructions now criticized by counsel."

Referring to the subject again in the opinion disposing of a petition for rehearing in that case, it was said in substance that the court was unable to agree with counsel in the contention that either of the instructions complained of was "fundamentally erroneous or necessarily prejudicial, or announced an incorrect theory affecting the entire charge and the validity of the trial." And it was said as to one instruction that, while disapproved and condemned either as useless and unnecessary, or as liable to mislead the jury, by the very clear weight of authority, yet, by such authority, it was held not to be either fundamentally erroneous or inherently prejudicial, and not reversible error unless appearing to be prejudicial in the particular case. That opinion also quoted the following from Ohama v. State, touching the propriety of our rule of practice now criticized:

"The rule is a salutary one in most cases and should not be departed from even in criminal cases, except where deemed necessary to the security of defendant's right to a fair trial or the just administration of the law."

The contention of fundamental prejudicial error in this case is based chiefly upon the action of the court in refusing to instruct that the alleged venue must be proven beyond a reasonable doubt, and directly instructing that it may be proved by a preponderance of the evidence. As stated in the former opinion, there is a sharp conflict of authority upon that question, and we cited generally 16 C.J. 769; Ann. Cas. 1912 B, note 939; L.R.A. 1918 B 1187. There is respectable authority either way, even where the question is whether the crime was committed in one or the other of two adjoining states. A Louisiana case was also cited in the former opinion, holding that whether or not a crime has been committed within the state where the crime is being prosecuted is a question bearing directly upon the guilt or innocence of the accused, and must be proven beyond a reasonable doubt. State v. Jackson, 142 La. 540, 77 So. 196, L.R.A. 1918 B, 1178. But it was dictum in that case, for the opinion states that the single question of law presented as to venue was whether, "as between two parishes" in the state, it should have been established, by a preponderance of the evidence, to the satisfaction of the jury, or "beyond a reasonable doubt." The trial court had instructed that it might be established by a preponderance of the evidence, and that was sustained, the decision being limited, however, to a situation where the dispute relates to political subdivisions of the same state, the court saying:

"It is no doubt true, we think, that, where venue is an essential element of a crime, it must be proved beyond a reasonable doubt; but where it is proved beyond a reasonable doubt or conceded that an act denounced by the law of a particular state as a crime has been committed within the territorial limits where that law prevails, the question whether it was committed within the limits of one political subdivision of the state or another concerns, as we have said, not the guilt or innocence of the person accused, but merely the question of the place and court in which he shall be prosecuted; and that being the case, we are of opinion that such fact may be established by a preponderance of the evidence, to the satisfaction of the jury, and that there was no error in the ruling of which defendant complains."

But where the question arose as between adjoining states, the same principle of the sufficiency of a preponderance of evidence was applied in Oklahoma, though seemingly also as dictum. Jentho v. State, 200 P. 253. It seems to have been questioned in that case whether the alleged offense was committed in Oklahoma or Texas, and the court held that the place established by the testimony as the place of the crime was in Oklahoma, since the court would take judicial notice of the boundary line south of that. But it was said further:

"Also it has been held that the venue in a criminal cause does not have to be proved beyond a reasonable doubt. * * * We deem the venue of this case to have been sufficiently established to have been in Bryan County, Oklahoma."

And in Arkansas (Cuzic v. State, 152 Ark. 230,237 S.W. 1094) it was held that venue need not be proved beyond a reasonable doubt, but may be proved by a preponderance of the evidence, where the question was the sufficiency of the evidence to show the commission of the alleged crime in Arkansas, as against the possibility that it might have been committed in Oklahoma. And see Patrick v. State, 135 Ark. 173,204 S.W. 852.

Again, in U.S. v. Clein, 189 Fed. 201, decided in the U.S. district court for the Eastern District of Washington, it appeared that the accused was convicted of murder alleged to have been committed within a U.S. military reservation situated within said district. The opinion states that the sole question presented was the sufficiency of the evidence to prove that the crime was committed within the court's jurisdiction; and that was to be determined, as we understand, from testimony showing merely that the body of the deceased was found on the reservation about 150 yards from its eastern boundary, and perhaps double that distance from its western boundary. Holding the proof of venue to have been sufficient, the court said in substance that the finding of the body on the reservation with the marks upon it of injuries sufficient to cause death, showing that it must have been placed there by the hand of man, was sufficient to warrant a finding that the homicide was committed upon the reservation, and therefore within the jurisdiction of the court, notwithstanding that the prisoner's counsel had contended that any inference or presumption arising from the finding of the body and wearing apparel of the deceased on the reservation had been overcome by testimony tending to show that the body was moved after death, and by other testimony needless to mention. In declaring the legal rules to be followed in determining the question, the court in its opinion quoted, among other statements, the following from Underhill's Criminal Evidence:

"The venue need not be proved beyond a reasonable doubt. If the only rational conclusion from the facts and evidence is that the crime was committed in the county alleged, the proof is sufficient."

The question, as related to state boundaries, appears also to have arisen in Tennessee, Norris v. State,127 Tenn. 437, wherein the court said that "the best and latest authority is, by a decided weight, to the effect that the issue of venue, being jurisdictional, need not be established beyond a reasonable doubt," citing cases, and Bishop's New Criminal Proc., Sec. 384, Underhill's Crim. Ev. Sec. 36, 4 Elliott on Evidence, Sec. 2214, and 13 Enc. Ev. 931. And the court then said further:

"The rule announced by these authorities is that a preponderance of the evidence relating to that issue is sufficient. * * * Why should the prosecution by the state be made to carry a burden of proof in respect to venue not logically imposed? A fact of this case — the turning out of horses, alleged to have been stolen, to range and graze at will, particularly if assumed to belong to an owner living near a county or state line — brings into view the practical effect of applying the rule of reasonable doubt to proof of venue. Added emphasis is given by a consideration of the fact that the cities of Memphis, Chattanooga and Bristol, and other considerable towns in this State, lie near or immediately on the State line."

Other cases holding, generally, that a preponderance of evidence is sufficient are: People v. McIntosh,204 Ill. 602; People v. Adams, (Ill.) 131 N.E. 76; Lowman v. State, 80 Fla. 18, 85 So. 166. The Illinois court say, by Mr. Justice Cartwright, in People v. McIntosh:

"The venue was a jurisdictional fact which the people were required to prove (citing cases), but it was not an element of the crime to be proved beyond a reasonable doubt (citing cases). The venue is proved if there is evidence from which it can reasonably be inferred that the crime was committed within the jurisdiction where the prosecution takes place."

The instruction given by the court in People v. Adams was substantially the same as Instruction No. 5 given in this case, except that it did not expressly permit a finding upon a preponderance of the evidence, and that case expressly distinguishes between proof of the commission of the crime and proof of venue, which, although said to be an element of the crime and a jurisdictional fact, it is held need not be proved beyond a reasonable doubt.

A rule seeming to be peculiar to North Carolina is that while the fact that an offense charged may have been committed in another state is available under the plea of "not guilty," it is nevertheless a matter of defense and the burden of proving it is on the defendant. State v. Mitchell, 83 No. Car. 582; State v. Buchanan, 130 No. Car. 660; State v. Blacksley,138 No. Car. 620; State v. Barrington, 141 No. Car. 820,53 S.E. 663.

On the other hand, there are several authorities to the effect that the fact of venue in a criminal case is an essential averment to be established by the prosecution beyond a reasonable doubt. 1 Wharton's Crim. Ev., 10th Ed., Sec. 107a; Jolly v. Commonwealth (Va.)118 S.E. 109; Dossett v. State (Ala.) 98 So. 359; State v. Casey (Ore.) 213 P. 771; Marakes v. State (Ga.)123 S.E. 687; State v. Jackson, 77 O. St. 34, 82 N.E. 969, 122 Am. St. Rep. 479, 13 L.R.A.N.S. 341; U.P.R.R. v. State, 88 Neb. 547,130 N.W. 277; Ann. Cas. 1912 Barb. 836; State v. Keeland,39 Mont. 506, 104 P. 513. And see cases cited in Note 97, to Sec. 1574, page 770, 16 C.J.

In the Alabama case of Dossett v. State, the accused was indicted for manufacturing liquor, and the dispute as to venue was whether defendant's still was located in Alabama or in Mississippi. The court said, in substance, that it was material to show the location of the still, and therefore to show where the state line was located, placing the burden upon the state to show by the evidence beyond a reasonable doubt that the location was in Mobile County. In the section of Corpus Juris above cited (Volume 16, Sec. 1574), the fact of the conflict in the authorities upon the question of the degree of proof might seem to be stated in such a manner as to indicate that the cases maintaining the preponderance of evidence rule represent the weight of authority, though it may not have been so intended, and some of the cases cited as supporting that rule do not directly so hold. And that is said to be the "majority rule" in a note to the Nebraska case of R.R. Co. v. State, Ann. Cas. 1912 B, p. 939; but in the 10th edition of Wharton's Criminal Evidence it is said that "the weight of authority is that venue must be proved beyond a reasonable doubt." Sec. 107a. We shall not attempt a decision as to which rule is supported by the better or the weight of authority. But, as in the original opinion, we shall leave the question as to the correct rule undecided, deeming such a decision unnecessary in this case; though perhaps we should express our inclination, where at least the dispute relates to adjoining states, to regard the proposition that a mere preponderance of evidence is sufficient as subject to much doubt.

The principle, however, seems to be well established that direct evidence is not necessary to prove venue, but that, like any other fact, it may be established by proof of facts and circumstances from which it may reasonably be inferred. 16 C.J., Sec. 1573, pp. 768, 769; 1 Wharton, Crim. Ev., 10th Ed., Sec. 108. Thus it is said in Wharton:

"To prove venue, it is not necessary that the witnesses should testify in terms that the offense was committed in the place charged. As in all other essential matters, the proof is not required to be direct, nor in express terms, but all reasonable inferences of which the testimony will admit may be drawn by the jury, under the instructions of the court, as to where the crime charged occurred."

And we quote the following judicial expressions on that subject: "Venue may be inferred from circumstantial evidence as well as proved by direct evidence." State v. Greene, 38 Utah 389, 115 P. 181. "Whether the venue is properly laid is to be gathered from the evidence as a whole, and competent evidence of the fact, sufficient to satisfy the jury, satisfies the law." State v. Dooley, 82 Wash. 483, 144 P. 654. "Since it does not affect the issue of guilt or innocence, * * * slight evidence will be sufficient to sustain the venue, and slight circumstances from which the jury might infer the place where the crime was committed, are held to be sufficient." Stubblefield v. Comm., 197 Ky. 718,246 S.W. 444; Sebree v. Comm. (Ky.) 255 S.W. 142. "But the question of venue is always a question of fact, and it may be proved like any other fact. If the evidence raises a violent presumption that the offense was committed in the county where he is tried, it is sufficient." State v. Burns, 48 Mo. 438; Richardson's Case, 80 Va. 174; Lowman v. State, 80 Fla. 18, 85 So. 166. "Unquestionably the commonwealth was as much bound to prove the venue as to prove the larceny itself. The evidence to prove it, however, may be either direct or circumstantial." West v. Comm. (Va.) 90 S.E. 654. And the Nebraska court, both before and after the decision in Railroad v. State, supra, held that if from the facts in evidence the only rational conclusion is that the crime was committed in the county alleged, the proof is sufficient. Weinecke v. State, 34 Nebr. 14, 51 N.W. 307; Booton v. State, 86 Nebr. 114, 125 N.W. 144. See also State v. Frost (Minn.) 200 N.W. 295; Herdison v. State (Ark.) 265 S.W. 84; State v. Meyer,135 Ia. 507; State v. Gow, 235 Mo. 307.

From this review of the authorities upon the subject of the degree and quantum of proof required to establish venue in a criminal prosecution, presenting a situation considered by the court in disposing of the cause upon the original hearing, as shown by the opinion then filed, it appears that many courts, including several state courts of last resort, have adopted the preponderance of evidence rule, where the question affects the jurisdiction, not only of a court of one political or judicial subdivision of a state as between it and another like court in the same state, but also where it involves the jurisdiction of the state or government creating the court. And, further, as established by what may be deemed, at least, the weight of authority, whatever the rule as to degree of proof, the evidence will be sufficient, if reasonably justifying an inference of the place of the crime from the proven facts and circumstances. In view thereof, we think the conclusion unavoidable that, if erroneous, which need not be decided, the court's action in the matter of the instructions aforesaid was neither fundamentally erroneous, in the sense of having deprived the defendant of a fair trial or of any substantial right, nor necessarily prejudicial. And in view of our expressed conviction that the evidence was sufficient to establish the alleged venue, upon any theory, the error, if any, in said instructions cannot be held to have been prejudicial in this case.

The case did not present a situation involving difficult or intricate legal principles. It was a simple case of the larceny of a cow, described as a pure-bred registered Hereford, kept, with other pure-bred Hereford cattle, within a well fenced enclosure, and known to have been therein upon a certain date and later found to be missing, but afterwards found, disfigured and mutilated, in the possession of the defendant, about 22 miles from said enclosure, though on the other side of the boundary line dividing this from an adjoining state. The jury had a right to believe from the evidence that the animal did not escape from the enclosure unassisted, but was taken therefrom by someone with felonious intent. The evidence does not show that any gates were found open, or that the fence was down or broken. There was no conflict in the evidence as to venue. If the jury believed the defendant's testimony stating the manner in which he came into possession of the animal, it would not have disproved the fact of the larceny in this state by someone, but merely that he was not the one who committed it. A belief of his story would have acquitted him of the larceny of the animal in either state. It is evident that the jury did not believe his testimony, but were left with the duty of determining the question of venue upon the facts and circumstances brought into the case through the evidence of the prosecution. And in addition to the pertinent uncontradicted facts aforesaid there was the circumstance of the letter mentioned in the former opinion, addressed to defendant and mailed at Carpenter, in this state (a place located in Laramie County, and but a very few miles from the eastern or southeastern part of the Hereford Ranch where the alleged stolen animal was pastured), which the jury, disbelieving defendant's testimony, might have considered as indicating guilty knowledge of the place where the animal had come from and belonged.

It is further contended in the brief that manifest prejudicial error was committed in permitting the State to inquire of so-called character witnesses called by the defendant as to the defendant having been "subsequently" indicted in Colorado for stealing, bringing out the fact that he had been, that the Colorado juries had disagreed, but that some of the people believe the defendant to have been guilty, and others have a contrary opinion. And it is argued that such inquiry must relate to reputation "prior" and not subsequent to the offense for which defendant was on trial. All of that testimony was received without objection. The only objection in the record as to any such testimony was on the prosecution's re-direct examination of one of said witnesses when the ground of the objection was merely "improper redirect-examination." And the court remarked upon that objection being made that the witness had answered that he didn't know; the question having been whether it was not a fact that there was a hung jury in the last case, that he was still under indictment and was still to be tried thereon before another jury. The answer was that he had been acquitted of all cases so far as the witness knew.

However, the questions now complained of propounded to such witnesses were not in form inquiries as to "subsequent" indictments or offenses. For example, upon cross examination of the first witness, the question as to such other indictments was: "Now, you do know that McFetridge has been indicted down there in that county three or four different times for cattle stealing, don't you?" And the witness gave an affirmative answer, and a like answer to the next question: "Accused by the authorities of that county?" A few of the following questions may also be here given as illustrative of the cross-examination of all of such witnesses:

"Q. There is a difference of opinion there as to the integrity of this defendant, isn't there? A. There seems to be; yes, sir. Q. Some people give him the character that you have given him, and others believe him to be guilty, don't they? A. Well, I think they do. Q. Then his general reputation isn't good, is it? A. It is with us. Q. What? A. It is with the bank. Q. It was with the bank, and that's as far as you want to go, isn't it? A. Yes sir."

We observe nothing in any of that essentially improper, if improper at all. In the absence of a proper presentation of the matter before this court upon exception properly taken, it is certainly not incumbent upon us to determine the limitation, if any, upon such cross examination.

It is further contended, in an attempt to show that the whole of the instructions were based upon an erroneous theory, that the second instruction given, defining the material allegations of the information, omitted the matter of venue therefrom. But we have above called attention to the fact that the 5th instruction declares it necessary, also, in order to convict, that the jury find that the crime charged was committed in Laramie County, Wyoming. The second instruction may reasonably be construed, especially when not excepted to, as having intended and purported to define only the material allegations necessary to be shown beyond a reasonable doubt. At any rate, we think it quite clear that the omission of the averment as to venue, in view of what was contained in the 5th instruction, cannot be held to be either fundamentally erroneous or necessarily prejudicial.

It is mistakenly stated in the brief that there was no direct evidence of venue. That the Hereford Ranch, where the animal was shown to have been kept, was located in Laramie County, Wyoming, and that she was seen upon that ranch a comparatively short time before she was noticed to be missing, was directly testified to. Also that the part of the ranch or the pasture wherein she was kept and was last seen before found to be missing was about ten miles from the Colorado line. And the person whose duty it was to look after the maintenance of the fences testified that they were all in good condition at the time; that every post was in, and every wire — a cedar post and four barbed-wire fence, and a fence that had always held their cattle. The evidence that the animal was afterwards found to be missing from said pasture and later discovered in Colorado, about twenty-two miles from the ranch, was also shown by direct evidence. And that, in our opinion, justified a finding that, if the animal was found by the jury to have been stolen, the act occurred in this state and the county alleged in the information. Douglass v. State, 91 Ark. 492, 121 S.W. 923. Among the several criticisms of the instructions to sustain the contention that they presented an erroneous view of the law of the case, the following words of the second instruction are referred to as having that effect (quoting from the brief): "That `some of the facts or circumstances (but not stating which) may be established by a preponderance of the evidence or may not be established.'" These words were used as a part of the following, contained in the second instruction, which defined the material allegations of the information necessary to be shown beyond a reasonable doubt:

"If these allegations are established in your mind, beyond a reasonable doubt, then the prosecution has established beyond a reasonable doubt all of the material allegations of the information. It is not necessary that other facts or circumstances surrounding such testimony as has been given on behalf of the State should be established beyond a reasonable doubt. Some of these facts or circumstances may be established by a preponderance of the evidence, or may not be established. It is not meant that it is incumbent upon the prosecution to prove every fact surrounding such testimony, as given, beyond a reasonable doubt. All that is incumbent on the prosecution is that all the facts and circumstances taken together should establish the defendant's guilt beyond a reasonable doubt. If you are satisfied beyond a reasonable doubt from all the evidence in the case, of the defendant's guilt, you should find him guilty."

A like instruction, given in a homicide case where the accused was found guilty of first degree murder, was approved in Horn v. State, 12 Wyo. 80, 73 P. 705; the only material difference between the instruction in that case and the second instruction in this being that in the former the instruction included, among the material allegations, that the crime was committed within the county alleged at or about the time stated. The instruction was criticized in the Horn case for stating it to be unnecessary that "other facts or circumstances surrounding such testimony should be established beyond a reasonable doubt, that some of such facts or circumstances may be established by a preponderance of the evidence, or may not be established, and that it is not meant that it is necessary for the prosecution to establish every fact surrounding such testimony beyond a reasonable doubt." And this court said:

"It is not true that the prosecution is bound to establish beyond a reasonable doubt every minor circumstance given in proof as tending to establish the main or ultimate fact essential to conviction. * * * It is not every circumstance entering into the proof that the law requires to be established beyond a reasonable doubt. * * * The words objected to are not misleading, nor liable to be misunderstood, when considered in connection with the remainder of the instructions. * * * It is evident that all that it was intended to say was that every circumstance offered in evidence tending to establish the ultimate facts or circumstances upon which a conviction depended, need not be proven beyond a reasonable doubt."

And the discussion of the question by this court in that case is approvingly referred to in a note under section 2497 of Wigmore on Evidence (Volume 4); and again in the second edition of that work, in a note under a section of the same number. So far as the criticism of the words of the instruction quoted, as above, in the brief, may be based upon the omission from the instruction of the averment of the place where the crime was committed as a material allegation, it is fully answered by what has been said above with reference to that omission, viz: the giving of the 5th instruction stating such alleged fact to be necessary to be proven by the state before the defendant could be convicted.

We should not further extend this opinion by reference to other instructions requested by the defendant. Most, if not all, were misleading and would have confused the jury because of unnecessary additions therein to the law of larceny and the rules of evidence. But we shall mention one, the 14th requested instruction, which declared that if the jury should find that the animal came into defendant's possession "through accident or mistake or by a trick of some other person" then their verdict should be acquittal. There was nothing in the evidence to justify the giving of that instruction. It was not claimed upon the trial, so far as the record shows, that the defendant had been, or claimed to have been "tricked" into the possession of the animal, or that he obtained possession through accident; nor that such possession was taken through mistake, unless the jury should believe his testimony that he acquired possession through authority given him by one Smith, from whom he claimed to have received authority to take possession. But he had all the advantage of that testimony without this 14th request. Several of the instructions given urged upon the jury the necessity of considering the testimony of the defendant, who was presumed to be innocent, and that his testimony should not be objected to merely because he was the defendant. Thus, one of the instructions stated that the jury have no right to disregard testimony of the defendant on the ground alone that he is the one charged with the commission of the crime; that the law presumes him to be innocent until proven guilty, and allows him to testify in his own behalf, and that the jury should fairly and impartially consider his testimony, together with all the other evidence in the case. They were also instructed that if they believed from the evidence that prior to the alleged commission of the offense, the defendant had borne a good reputation among his acquaintancs in the community where he lived, that was a fact to be considered by them with all the other evidence, in determining the question of his guilt. We do not conceive it possible, upon any theory of the instructions, that the jury could or would have found the defendant guilty if they believed his testimony concerning the manner in which he obtained possession of the animal.

We can only say, in conclusion, that a re-examination of the record in this case has failed to convince us of the existence of any reasonable ground upon which it might be held that the defendant did not receive a fair and impartial trial, or that he has been deprived of any substantial right accorded him under the law. An order must, therefore, be entered denying the petition for a rehearing.

Rehearing Denied.

BLUME and KIMBALL, JJ., concur.