64 So. 736 | Miss. | 1914
delivered the opinion of the court.
Appellant was convicted on a charge of unlawful sale of intoxicating liquors, and was sentenced to pay a fine of two hundred dollars and to serve a term of ninety days in the county jail. He assigns as error the failure of the state to prove venue. The indictment charged that the offense was committed in Tishomingo county, but we are unable to find any testimony in the record to prove that the sale took place in that county. For this failure to prove venue this case is reversed. Cagle v. State, 63 So. 672.
There was no exception made during the trial to the failure of the state to prove venue. The exception is made for the first time in this court. In the brief for the state it is contended that such error could only be availed of where special objection or exception was made in the. trial court. The cases of Burnett v. State, 72 Miss. 994, 18 So. 432, Lea v. State, 64 Miss. 201, 1 So. 51, and Hunt v. State, 61 Miss. 577, are cited to sustain this position. These case were decided before the adoption of the Code of 1906.
Section 4936 of the Code of 1906, providing that the judgment shall not be reversed for certain errors, is the same as section 4370 of the Annotated Code of 1892, with the addition of the following words: “Except where the errors or omissions are jurisdictional in their character. ’ ’ The statute (section 4936, Code of 1906).now provides that a judgment in a criminal case shall not be reversed “because of any error or omission in the case in the court below, except where the errors or omissions are jurisdictional in their character, unless the record shows that the errors complained of were made ground of special exception in that court.”
Reversed and remanded.