Monroe v. State

60 So. 773 | Miss. | 1912

Smith, C. J.,

delivered the opinion of the court.

Appellant, having been convicted in the court of a justice of the peace of the unlawful sale of intoxicating liquor, appealed to the circuit court, and, being there again convicted, appeals to this court.

The evidence discloses the county and state in which the crime is alleged to have been committed, but is wholly •silent as to whether or not it was committed within the district of the justice of the peace in whose court the case originated, and thus fails to show that he, and consequently the circuit court on appeal, had jurisdiction to try the case. No exception was taken to the failure to prove the venue in the court below, that point being made in this court for the first time.

In support of the contention that this objection cannot be raised here for the first time, we are referred by the attorney-general to the cases of Burnett v. State, 72 Miss. 994, 18 South. 432, and Lea v. State, 64 Miss. 201, 1 South. 51, wherein it was held that failure to prove the venue can be assigned for error only when made ground of special objection in the trial court. These cases on this point were predicated upon section 1433 of the Code of 1880, which section was brought forward without material change in the Code of 1892 as section 4370 thereof, and was as follows: “A judgment in a criminal case shall not be reversed because the transcript of the record does not show a proper organization of the court below or of the grand jury,'or where the court was held, or that the prisoner was in court during the trial or any part of it, or that the court asked him if he had anything to say why judgment should not be pronounced against him upon the verdict, or because of any error or omission in the case in the court below, unless the record shows that the errors complained of were made ground of special-exception in that court.”

When this section was brought forward into the Code of 1906, as section 4936 thereof, it was materially changed by the insertion between the words “below” and “unless, ’ ’ in next to the last line thereof, of the words ‘ ‘ except where the errors or omissions are jurisdictional in their character.” The venue in a criminal case is jurisdictional, and therefore within the above exception in-grafted upon this statute in the Code of 1906, and the record on appeal must affirmatively show that it was proven. Coon v. State, 13 Smedes & M. 246; Thompson v. State, 51 Miss. 353; Isabel v. State, 58 South. 1.

Reversed and remanded.