Opinion
No. 34367.
December 9, 1940.
1. CRIMINAL LAW.
One who is accused of larceny may be tried in any county into which he has carried the goods, but if they are carried into another county without participation of accused, he may not be tried in county wherein the goods are found under statute permitting offender to be tried in county wherein the stolen property may be found, since to permit prosecution therein would violate constitutional provision under which venue in prosecutions for crime is in the county wherein offense was committed (Code 1930, sec. 1188; Const. 1890, sec. 26).
2. CRIMINAL LAW.
Where evidence warranted finding that accused stole a cow in Carroll county and there sold it to another who sent it into Leflore county where it was found by its owner, venue of prosecution was in Carroll, and not in Leflore, county (Code 1930, sec. 1188; Const. 1890, sec. 26).
APPEAL from the circuit court of Leflore county, HON. S.F. DAVIS, Judge.
Gordon L. Smith, of Greenwood, for appellant.
In all criminal cases the state must prove venue; and a failure to do so is fatal to the state's case. It is also well settled that the question of venue may be raised for the first time by timely presentation to the Supreme Court.
Allen v. State, 98 Miss. 192; Cawthan v. State, 100 Miss. 834; Horton v. State, 123 Miss. 525; Griffin v. State, 140 Miss. 175; Brasham v. State, 140 Miss. 712; Dorsey v. State, 141 Miss. 712; Crosby v. State, 151 Miss. 512.
Section 26 of the Mississippi Constitution guarantees to every defendant a speedy and public trial by an impartial jury of the county where the offense was committed.
The exact question involved in this case has been decided in Alabama in the case of Lucas v. State, 62 Ala. 26, wherein the court used the following language: "The thief can be tried only in the county into which the goods are brought when they are under his control at the time. If he sells them and they are brought into the county by another, he cannot be tried there, although he may have been with that other."
The provision in Section 1188 of the Mississippi Code of 1930 that where property "is stolen in one county in that state and carried into another, the offender may be indicted and tried in any county into or through which the property may have passed, or where the same may be found" indicates that the stealing and bringing must be done by one offender.
A search of Mississippi Reports has failed to reveal any case involving the same proposition. However, the language used in those cases concerning Section 1188 of the Code of 1930 and previous statutes to the same effect clearly indicate that the thief had control of the property in the county where found or through which it passed.
Watson v. State, 36 Miss. 593; Johnson v. State, 47 Miss. 671.
This case clearly presents a situation where the appellant has been denied the constitutional guaranty of a trial in the county where the alleged offense was committed. We submit that Section 1188 of the Mississippi Code of 1930 cannot be construed as meaning that an accused may be tried in any county where the goods alleged to have been stolen are found regardless of the control exercised over the goods by the accused. There is no new taking and asportation where no control is exercised in a county different from that of the original taking, and therefore, the commission of no crime that gives the foreign county jurisdiction.
W.D. Conn, Jr., Assistant Attorney-General, for appellee.
It is true that, if property is stolen in one county and carried into another, prosecution may be begun in either county. However, it appears from the decisions of this court that to bring this rule into play, it is necessary that the proof show that the property was carried into the other county by the thief. Johnson v. State, 47 Miss. 671; Watson v. State, 36 Miss. 593. If these cases state a correct rule of law, and we find nothing to conflict therewith, then this prosecution was not properly brought in Leflore County.
The question was not raised in the trial court, but, under the decisions of this court, this matter may be raised here for the first time.
This is an appeal from a conviction of larceny. The error assigned, raised first in this court, is that the venue is in Carroll and not Leflore County. The Assistant Attorney General admits that such is the fact.
The evidence warrants a finding that the appellant stole a cow in Carroll County and there sold it to another who sent it into Leflore County where it was found by its owner. After selling the cow the appellant had no further control over or connection with it, and had nothing to do with its being carried into Leflore County.
Section 1188, Code 1930, provides that "Where the property is stolen in another state or country and brought into this state, or is stolen in one county in this state and carried into another, the offender may be indicted and tried in any county into or through which the property may have passed, or where the same may be found." This section is in accord with the common law except as to the provision "where the same may be found."
The stolen cow was found in Leflore County; but to apply the last quoted words of the statute here would violate Section 26 of the State Constitution under which the venue in prosecutions for crime is in "the county where the offense was committed." "`Larceny, like every other offense, must regularly be tried in the same county or jurisdiction in which it was committed; but it should be noted with respect to larceny, that the offence is considered as committed in every county or jurisdiction into which the thief carries the goods; for the legal possession of them remains in the true owner, and every moment's continuance of the trespass and felony, amounts to a new caption and asportation.' 2 Russell Cr. Law, 116." Watson v. State, 36 Miss. 593, 605. Where the stolen property is carried into another county without the person by whom it was stolen being in any way a party thereto, no crime is committed by him in the county into which the property was carried.
Reversed and remanded.