88 Ga. App. 804 | Ga. Ct. App. | 1953
This case turns on the question of whether or not the State proved the venue. While, in the absence of evidence sufficient to raise an inference to the contrary, slight proof that the venue of the crime is properly laid is sufficient, nevertheless, venue is a fact essential to the jurisdiction of the court and must be proved by evidence and beyond a reasonable doubt. Dempsey v. State, 52 Ga. App. 35 (2) (182 S. E. 56); Green v. State, 4 Ga. App. 260 (1) (61 S. E. 234). The State depends here for proof of the venue on the answer of a State’s witness to the following question: “In this State and county about the 24th of December, last year, turn to the jury and describe what happened between you and Thomas Hammond.” The witness then proceeded as follows: “Gentlemen of the jury, at approximately 7 p.m. on the 23rd of December, this last year, in company with Officer Cook, C. V. Cook with the State Alcoholic Tax Unit, went out 13th Street,” etc., without anywhere in his testimony making any further reference to the location of the place, as to State, county, or municipality. While a direct affirmative answer to the question, “Did this occur in-County?” would certainly establish the venue in the absence of any evidence to the contrary, yet there are three reasons why this testimony and the question here fail to constitute proof thereof. First, the answer is not entirely responsive to the question, which included what happened between the witness and the defendant in Richmond County on December 24, last year. The witness then proceeded to narrate what happened between him and the defendant on another date, namely, the 23rd, and without designating the place of the occurrence. At most, a mere inference arises from his failure to contradict the place stated by the solicitor, as well as the date, and, as stated in Wharton’s Criminal Evidence, Vol. 2, 1854, § 1053, “No principle is more firmly settled than that venue must not be left to inference.” Second, had other witnesses
The trial court erred in denying the motion for new trial, one special ground of which assigned error on the failure to establish the venue of the offense.
Under authority of the act of the General Assembly approved March 8, 1945 (Ga. L. 1945, p. 232), this case was decided by the court as a whole.
Judgment reversed.