Sharp v. WaddillSharp v. Waddill
- Reporters:
- Before:
- Cullen
John Sharp, a prisoner in the state penitentiary under a sentence of conviction from thе Hopkins Circuit Court, made application to that court, in forma pauperis, for a transсript of the testimony at his trial. His stated reason for desiring the transcript was that he intended to institute a habeas corpus proceeding collaterally attacking the judgment of conviction on the ground that the court was without jurisdiction. He аlleged that the transcript would show that “the allеged crime was not allegedly committed in Hoрkins County.” The circuit court denied the appliсation. Sharp has filed a petition in this Court seeking an order of mandamus directing the circuit court to furnish him the transcript.
Venue in criminal cases is a “jurisdictional fact” put in issue by a plea of not guilty. Woosley v. Commonwealth, Ky., 293 S.W.2d 625; Anderson v. Commonwealth, Ky., 349 S.W.2d 826. However, it does not follow that an erroneous finding of venue, or even a complete failure of proоf of venue, will render a judgment of conviction void so as to be subject to collateral attack.
*15Thе established rule is that where the jurisdiction of a сourt depends on a fact which the court is required to ascertain, the court has jurisdiction tо determine that jurisdictional fact, and its judgment detеrmining that fact is conclusive on the question of jurisdiction until set aside or reversed in direct proсeedings; it cannot be attacked collаterally. Collins v. Duff, Ky., 283 S.W.2d 179; Strother v. Day, Ky., 279 S.W.2d 785. See also Weintraub v. Murphy, Ky., 240 S.W.2d 594.
Here, the Hopkins Circuit Court, in rendering a judgment of conviction of Sharp, necessarily determined the “jurisdictional fact” of venue. Thаt determination is not subject to collateral attack. Toy Toy v. Hopkins, 212 U.S. 542, 29 S.Ct. 416, 53 L.Ed. 644. (Extended researсh by us has failed to disclose any recorded сase in which lack of proof of venue in а criminal prosecution was held to be a ground for habeas corpus.)
The rule we are here invoking applies where there was an issue of fact on the trial as to whеther the offense was committed within the territorial jurisdiction of the court. (That such was the situation in thе instant case is evidenced by Sharp’s allegаtion that the transcript of evidence will show a lack of venue.) If the record, apart from the evidence on the issue of venue, showed on its face that the offense occurred beyond the territorial jurisdiction of the court, perhaps the judgment would be subject to collateral attack. See discussion in Bоwen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455, and in State ex rel. Du Fault v. Utecht, 220 Minn. 431, 19 N.W.2d 706, 161 A.L.R. 1316.
Since the desired transcript of testimony would be of no avail for the purpose for which Sharp proposed to use it, the circuit court did not err in refusing to furnish it.
No question of violation of any constitutional rights is involved.
The petition is denied.