*1 Tennessee, BENNETT, Respondent. William
Supreme Court Tennessee. 25, 1977. Gen., Caulkins, Atty. Asst. for
Donald S. Gen., Jr., petitioner; Ashley, Atty. A.R. Nashville, of counsel.
Wayne Taylor, Taylor Taylor, & Nash- S. ville, respondent.
OPINION
BROCK, Justice. selling a was convicted of
Defendant III substance in viola- controlled Schedule Drug Control Act. The Court of tion of the Appeals reversed the conviction trial, holding that for a new and remanded by preponder- failed to establish offense oc- of the evidence that ance trial, curred determination, we To review this petition for certiorari. granted State’s Both Article Constitution provide and T.C.A. § trial has the that the defendant “ County . . .of crime shall have been committed.” is not an element of and, so, need not be criminal offense doubt; preponderance beyond a reasonable Harvey v. is sufficient. of the evidence *2 State, McCormick, Evidence, v. 187 Tenn. Law of 54 at 125- S.W.2d § 126; (1948). Evidence, Rules of 1(1), Uniform Rule Circumstantial evidence will do. State, Hopson (2). (1957). This rule is well and we settled adhere to think it is a it. We sound rule. Nor do we The defendant made this drug sale at his agree with the view of the Court of Crimi- agent, Johnson,
home to undercover
of the
operated unfairly
venue,
T.B.I. On the
agent
issue of
John-
against the defendant
in this case. As not-
son testified as follows on direct examina-
ed,
object
hearsay
he did not
state-
tion:
ment; neither
any
did he offer
witness to
“Q.
Johnson,
this sale of the PCP on
show that
the defendant’s residence where
$80.00,
March
did this
sale occurred
the
was not located in Wil-
take
in
County?
Williamson
short,
liamson
defendant did
“A.
sir.”
actually attempt
dispute
venue in the
trial court.
cross-examination,
On
he testified:
“Q.
you
Where did
drive?
The Court of
concluded that “Venue in this case was
up
“A. Went
to the Interstate until the
established,
best,
inference”;
exit, got
next
off on Peytonsville
proof by inference is sufficient if the infer
Road.
ence is a reasonable
deduction from
“Q.
Peytonsville
How far down the
Hopson
facts.
S.W.2d
you go?
Road did
14;
(1872).
Maples v.
County? county. offense occurred view, the in inference that case was much Well, this is what the told here, more tenuous than that where there is me. evidence that the sheriff stated It’s what the you, Sheriff told location of the offense was within the coun you yourself, know don’t while ty- there, were happened sale This case is more to Gilliland v. County, you? in Williamson do State, supra, in which the defendant was “A. No sir.” by tak- robbing prosecutor convicted is no other evidence the record money. prosecutor his taxicab and venue, relevant to the issue of and defend- know of his own testified that he did not ant contends that the foregoing testimony, county he knowledge particular was in part hearsay, of which is is insufficient occurred, when the theft but he described support the verdict. over, the roads he drove and mentioned several landmarks. The then intro- Defendant did not the clerk of the duced trial; hearsay statement at the there court, criminal who had lived in the fore, rightly to be as considered evidence thirty years postman, worked as a given weight the case and to be who then testified that the area described proper think under the circum was, indeed, county. obtaining. stances Yates v. Paine, S.W.2d quite Taylor Also similar is 206; Evidence, (Tenn.Crim.App.1974), Tennessee Law of 185 at by preponderance convicted for first de- defendant was evidence, proving with the burden of one of Shelby murder gree prosecution. Harvey resting upon the venue case was whether issues in the the two proven. only evidence of an provided by venue was eyewitness: general proposition *3 agree I Griffin, incompetent, did facts that otherwise hearsay or evidence objection, “may be con- today, to here did without
have testified admitted by the it is worth happen Memphis, Shelby sidered for whatever they This is the jury trying or the case.” court County, Tennessee? 118, Tenn. holding of Yates v. 206 Sir.” by the (1960), upon proof found this to be sufficient. The Court sentence, ensuing apparent- majority. The point that with re Finally, we as fol- ly majority, reads overlooked slight evidence will be to venue spect lows: carry prosecution’s burden of enough to proba- intrinsically destitute of Evidence uncontradicted, if it is preponderance attribute in acquires no new quality tive Commonwealth, 508 here. Collins in the weight by production its point of Underhill, (Ky.1974); CRIMI 121, 332 S.W.2d case. 206 Tenn. (6th 1973), ed. Herrick NAL EVIDENCE 187. of judgment, the evidence Moreover, Yates did not deal with a con- supports verdict. Again, venue is con- stitutional We, judgment reverse the jurisdiction stitutionally indispensable to of Criminal and affirm the Court proved. be and must of the trial court. Costs are taxed that places strong emphasis on majority against the defendant. of the defendant to the failure of this hearsay testimony. context J., HARBISON, J., COOPER, C. con- objection, point, at this would have trial an cur. The witness had a tactical blunder. been on direct examination testified J., FONES, J., HENRY, join- dissenting, place in Williamson drug sale took ing in dissent. on cross-examination he admitted But took not know that the sale he did HENRY, Justice, dissenting. Sheriff, citizen, prosecuted A Tennessee for crimi- sale, at the told him was not who conduct, constitutionally has a ordained county. This cross-exami- happened in that “in which the to trial proof the State’s utterly demolished nation 1, crime shall have been committed.” Art. yet, majority holds of venue and 9, Sec. Constitution See objected to an should have counsel defense may He not be de- T.C.A. See. to completely which was favorable answer consent, of this his prived without failing object, the And his client. Denton, testimony, utterly holds that majority value, of venue must not be left to inference is sufficient to probative destitute or of ven- imperative construction. meet the constitutional A due won’t wash. defendant’s ue. This holding that he rights preclude a process venue is both a constitutional Proof of at the peril at his own cross-examines imperative predicate and an essential validating incompetent testimony. risk may be of the trial court. It jurisdiction majority upon relies Gilliland course, by circumstantial evi- proved which, has no my view dence, fully the venue was case, es- an relevance. earlier proof. by competent failure to call such tablished a witness “affords an inference.” Kidd v. Tennessee Gas upon Taylor v. placed is also Reliance (Tenn.Cr.App.1974). case, (1950), a later expression, uses the “a opinion of the Court of authoritative arises”, presumption and Wooten v. sense, in no seems to There the witness tes- the instant case. “inference”, view it as an not conclusive as positively that the criminal acts oc- tified any party merely fact for the He Shelby County. did not ren- curred in jury. consideration of the by affirming worthless his der Whether the failure to call the Sheriff disaffirming examination and fact on direct possessed peculiar who knowledge of the same fact on cross. facts, relying one who had no in this case shows that The record *4 knowledge, such presumption, creates a County of Williamson Sheriff strong presumption, inference, affords an Indeed, during the trial. he was in court inference, or is an the fact remains that this lead-off witness for the State. He was gives pause. situation cause for It leaves recalled to establish venue. At not dangling requirements of a constitu- proof, conclusion of the State’s the defend- tional acquittal moved for a verdict of on the ant Under these circumstances I cannot re- ground that had failed to single verse the unanimous conclusion reached prove venue. Appeals. Court of Criminal simple been a matter for It would have I would affirm. re-opened to have and called the supply the void in critical Sheriff It did not.
area. FONES, J., concurring in dissent. calling Instead of the Sheriff the State who, of a witness admission, did not know in what his own just the sale what occurred — told him. trigger
This set of facts is sufficient
missing witness rule first announced in
v. Travelers’
Insurance Company,
Fisher