4 Tex. 225 | Tex. | 1849
Without entering upon a particular examination of all the errors assigned, it is clear that the judgment in this case cannot he maintained.
There is no venue laid in the indictment to the facts charged as constituting the offense. And this is a fatal defect, for which the indictment ought to have been quashed or the judgment arrested on the motion of the defendant. At common law, says Mr. Chitty, (1 Chit. Or. L., 177,) the venue should always he laid in the county where the offense is committed. And it does not lie on the prisoner to disprove the commission of the offense in the county in which it is laid, but it is an essential ingredient in the evidence on the part of the prosecutor to prove that it was committed within it.
At the common law the venue was always regarded as a matter of substance; and hence, where the offense was committed in one county and consummated in another, the venue could be laid in neither, and the offender went unpunished. (Ib.) But in the present case the offense is not alleged to have been committed in any county; and we have no statute dispensing with the necessity of that averment.
Judgment reversed.
