Isabel v. State

58 So. 1 | Miss. | 1911

Mayes, C. J.,

delivered the opinion of the court.

The appellant was indicted for a felonious assault • upon one Frank Duncan.- The indictment charges that the offense was committed in the first judicial district of Chickasaw county, there being two judicial districts in that county. The trial resulted in the conviction of appellant and a two-year sentence in the penitentiary, and from this conviction and sentence an appeal is prosecuted. ■

The proof in the case fails to show where this offense was committed; that is to say, it merely shows that the offense was committed in Chickasaw county, hut there is no proof as to whether it occurred in the first or second judicial district. This was made a ground of exception in a motion for a new trial, and the court overruled the same. The contention in the case on the part of appellant is that it must affirmatively appear, not only that the offense was committed, but that it was committed in the judicial district in which the indictment charges it to have been committed or else there is no jurisdiction shown in the court to try the case. When the laws create two judicial districts in any county, the effect is the same, as to jurisdiction, as if there were two counties. An offense committed in one judicial district must be tried in the district in which the offense was committed, and cannot be tried in' the other-. This was expressly held in the case of Spivey v. State, 58 Miss. 858.

•But it is claimed that section 1401 of the Code cures the failure to prove the district in which the offense is charged, and the failure to make the proof should not cause a reversal. Section 1401 of the Code of 1906 is as follows: “The local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county in which the offense was committed. But, if on the trial the evidence make it doubtful in which of several counties, including that in which the indictment alleges it, the offense was committed, such doubt shall not avail to secure the' acquittal of defendant.” This section has no application to this case. The evidence does not leave it doubtful as to where the offense was committed in the sense of the statute, but the evidence utterly fails to prove or attempt to prove where the offense was committed; that is to say, whether in the first or second judicial district. The state did not attempt to prove anything about where the offense occurred, further than to show that it occurred in Chickasaw county. If the proof offered placed the commission of the, crime so close to both judicial districts as to leave it in doubt as to which it actually occurred in, whether the first or second district, the statute would apply. The jurisdiction of the court to try this case depended upon its being committed in the first judicial district of Chickasaw county.

For the above reason, the case must be reversed and remanded. Reversed and remanded.