Opinion
No. 34843.
February 9, 1942.
1. CRIMINAL LAW.
Where indictment was captioned, "The State of Mississippi, Tallahatchie County, Second Circuit Court District," testimony that crime was committed "in the Second District of Tallahatchie County, Mississippi," was sufficient proof of venue as against contention that supervisor's district, or beat, two was meant, and that such beat was located in the First Circuit Court District of the county.
2. HOMICIDE.
Where the evidence would justify a conviction of murder, accused may not complain of conviction of manslaughter or of an instruction covering the offense of manslaughter.
APPEAL from the circuit court of Tallahatchie county, HON. JOHN M. KUYKENDALL, Judge.
J.W. Kellum, of Tutwiler, for appellant.
Where there are two districts in the same county, an offense can be tried only in the judicial district in which offense is committed, and evidence must show that offense was committed in district charged in the indictment.
Isabel v. State, 101 Miss. 371, 58 So. 1; Heidelberg v. State, 151 Miss. 648, 118 So. 624; Johnson v. State, 186 Miss. 544, 191 So. 115.
Proof of venue must not only be consistent with the theory sought to be proven, but must be absolutely inconsistent with any other reasonable theory.
Ussery v. State, 154 Miss. 704, 123 So. 854.
Proof of venue, in criminal case, is jurisdictional.
Sandifer v. State, 136 Miss. 836, 101 So. 862; Slaton v. State, 134 Miss. 419, 98 So. 838.
A criminal case will be reversed wherein the venue is not proven.
Mississippi Code of 1930, Sec. 3403.
Instructions granted which are inapplicable to the evidence or based upon facts not in evidence are erroneous.
Oliver v. State, 39 Miss. 526, 2 Morris State Cases 1374; Cothran v. State, 39 Miss. 541, 2 Morris State Cases 1382; Wheeler v. State, 76 Miss. 265, 24 So. 310; Canterberry v. State, 90 Miss. 279, 43 So. 678; Crawford v. State, 144 Miss. 793, 110 So. 517.
Greek L. Rice, Attorney-General, by R.O. Arrington, Assistant Attorney-General, for appellee.
It is argued that the record fails to show that the offense was committed in the Second Circuit Court District of Tallahatchie County, Mississippi. Counsel cites many cases as to venue and jurisdiction. Under all the authorities, it is necessary that venue be shown in order that the court might have jurisdiction of the offense. In cases appealed from the justice of the peace court to the circuit court, it is necessary for the state to prove that the offense was committed in the supervisor's district from which the case was appealed.
Johnson v. State, 186 Miss. 544, 191 So. 115.
Under an indictment, venue must be proved as laid in the indictment, and in the county where there are two judicial districts, as in the case at bar, the districts are treated as separate counties insofar as the jurisdiction of the circuit court is concerned.
Heidelberg v. State, 151 Miss. 648, 118 So. 624.
The indictment charges the offense to have been committed in the Second Circuit Court District of Tallahatchie County, Mississippi. The killing was shown to have occurred on the place of Jimmie Graham, and the only evidence in the record as to the venue is that this killing took place in the Second District of Tallahatchie County, Mississippi.
The organization of the court shows that it was in the Second Court District of the Circuit Court of Tallahatchie County, in the Town of Sumner, State of Mississippi. The indictment charges that it was in the Second Court District of said county and state and that the proof shows that the killing occurred in the Second District of Tallahatchie County, Mississippi. This evidence could not have had reference to any other district other than the Second Circuit Court or judicial district of Tallahatchie County, Mississippi. If this had been an appeal case from a justice of the peace court, counsel would have been eminently correct, but in the case of an indictment either for a misdemeanor or a felony, it is immaterial as to in what supervisor's district the offense was committed.
It is now quite well settled that the defendant cannot complain of the giving of a manslaughter instruction on a trial for murder, even though the evidence would have sustained a verdict of guilty of murder and would not have sustained a verdict of guilty of manslaughter.
Alexander v. State, 145 Miss. 675, 110 So. 367; Bradford v. State, 161 So. 138; Ozzie Holmes v. State, 192 Miss. 54, 4 So.2d 540.
Appellant was tried under an indictment for murder and convicted of manslaughter. The indictment was captioned "The State of Mississippi, Tallahatchie County. Second Circuit Court District." The testimony showed that the crime was committed "in the Second District of Tallahatchie County, Mississippi." This was sufficient proof of venue as against a contention that supervisor's district, or beat, two was meant, and that such beat was located in the First Circuit Court District of the county. There was no occasion for the prosecuting attorney to inquire as to or seek to establish venue with respect to supervisors' districts, and a contrary contention would be against both reason and practice.
Appellant contends further that it was error to give on behalf of the state an instruction upon manslaughter. We have held repeatedly that when the evidence would justify a conviction of murder, the defendant may not complain of a conviction of the lesser offense of manslaughter, nor of an instruction covering such offense. Holmes v. State, 192 Miss. 54, 4 So.2d 540, and cases cited.
Affirmed.