State v. Shull

40 Tenn. 42 | Tenn. | 1859

Wright, J.,

delivered the opinion of the Court.

The Circuit Court quashed the presentment upon the ground that the venue was not sufficiently laid. This is error. In the caption of the presentment, the State and county are stated, and the presentment itself contains the averment that the grand jurors are empannelled to inquire for the body of the county aforesaid, and then proceeds as follows: “ On their oath aforesaid present that a certain Lafayette Shull, heretofore, to wit, on the first day of June, in the year of our Lord, one thousand eight hundred and fifty-eight, in a certain pub-lie place, then and there situate, and in the hearing of divers good citizens, then and there being, and in the hearing of a certain public assembly, then and there assembled and gathered together, did, then and there, utter and publish, &c.” The words, in a certain public place there situate, and there, as used in this presentment, refer to the county as mentioned in the caption and body of the presentment, and renders it sufficient in this respect. In Jacobs v. The Commonwealth, 5 Serg. and Rawle, 315, it was held that the day of the commission of the offence might be rendered certain by reference to the year stated in the caption.

Again: we think it was unnecessary to state any venue. The Code, in sec. 5125, provides that it shall not be necessary for the indictment to allege where the offence was committed, but the proof shall show a state of facts bringing the offence within the jurisdiction of the county in which the indictment was preferred. It is true that a presentment is not here embraced in terms; but there can be no reason why the venue should be laid in a presentment and not in an indictment. The distinction, in common sense, cannot exist; and we are satisfied, from an examination of the chapter in the Code in which the section is found, that none was intended.

Reverse the judgment, and remand the cause to the Circuit Court of Johnson county, to the end the defendant may be arraigned and tried upon the presentment.