98 So. 838 | Miss. | 1924
delivered the opinion of the court.
The appellant was tried and convicted of the sale of intoxicating liquor, and was fined five hundred dollars and three months imprisonment in the county jail, from which judgment he appeals.
The case originated in the justice of the peace court of justice of the peace district No. 1, Hinds county, and the evidence charges the selling of whisky in the said district, county, and state. There was a conviction in the justice of the peace court and a fine of three hundred dollars and ninety days’ imprisonment in the county jail, from which the appeal was prosecuted to the circuit court.
The first assignment of error is that the venue was not sufficiently proven to show jurisdiction of the court below, or that the offense was committed in the justice of the peace district No. 1 of Hinds county and circuit court district No. 1 of Hinds county. The proof shows that the sale was committed at T.ougaloo, in the first district of Hinds county, Miss. This was the only proof as to the venue of the offense. After a conviction there was
■ It is well settled in this state that the venue must he proven as charged in the indictment, and on the appeal of cases from the justice court the proof must show that the justice of the peace had jurisdiction to try the offense; that is, that the offense was committed in the justice of the peace district as well as in the county and state, and in a case where there are two. judicial districts in the county1 that it was within the proper judicial district. Monroe v. State, 103 Miss. 759, 60 So. 773; Elzey v. State, 110 Miss. 502, 70 So. 579. Failure to prove venue is jurisdictional and can he raised in this court. Norwood v. State, 129 Miss. 813, 93 So. 354; Quillen v. State, 106 Miss. 831, 64 So. 736; Cagle v. State, 106 Miss. 370, 63 So. 672.
The proof here shows that supervisor’s district No. 1 lies partly in the first district of Hinds county and partly in the second district. The state contends that we shall take judicial notice that Tougaloo is in the first district of Hinds county and also in the first justice of the court district of Hinds county. Tougaloo is not an incorporated town, and if it were we could not judicially know that it was in the first justice of the peace district, because the districts of the justice of the peace courts were not fixed by statute, but are fixed by orders entered upon the minutes of the board of supervisors of which we do not take judicial notice. Cases above cited.
■ As to the other assignments of error we think it is not necessary to pass upon the questions therein presented, for the reason they may not recur on another trial.
The judgment will he reversed for the errors above indicated.
Reversed and remanded.
