Wade v. State

11 Ga. App. 411 | Ga. Ct. App. | 1912

Hill, C. J.

The plaintiff in error was convicted of the offense of assault with intent to rape. . His motion for a new trial was overruled, and he brings error. There are numerous assignments of error in the amended motion for a new trial, none of which need be dealt with more fully than in the headnotes, except the question as to proof of venue. It is insisted that the evidence is not sufficient to prove the venue, and, under repeated rulings of the Supreme Court on this subject, we are constrained to hold that this contention is well founded. The only evidence relating to venue was as follows: The victim of the assault testified that she lived in Grady county, and that the court-house where she was testifying was about five miles from her home; that on the occasion of the assault she and the accused were going to school together, and that the school was about two and a half miles from her home; that she saw the accused in December, 1910, in Grady county, “at my home, and at lots of other places. 'I went to school with him in December. I had to go by his boarding place, and we got together there. When we had gone a little piece from his boarding place, he made me stop. No one was with us. He picked me up and carried me out of sight of the road and laid me down,” .and then the assault was made. “It was near the Cairo and Thomas-ville road, and about two miles from tlie sehoolhouse. We were about a half mile from home.”

The constitution of this State requires that all criminal cases shall be tried in the county where the crime is committed, 'and numerous decisions of the Supreme Court have held that the venue must be clearly and distinctly proved beyond a reasonable doubt. Murphy v. State, 121 Ga. 143 (48 S. E. 909). The statement of the accused that she lived in Grady county was immaterial in the fixing of the venue. Tarver v. State, 123 Ga. 494 (51 S. E. 501); Pope v. State, 121 Ga. 801 (53 S. E. 384, 110 Am. St. Rep. 197, 4 Ann. Cas. 551). In Gosha v. State, 56 Ga. 36, it was held that evidence to prove the place where the crime was committed, to the effect that it was “within fifty yards” of a certain named residence in that county, was not sufficient. In Moye v. State, 65 Ga. 754, the only proof touching the venue was that the crime was committed in the lumber yard of a Mr. Sloan, in the city of Americus, and it was held that this was hot sufficient to show that it was committed in the county of Sumter; that the court did not judicially know that the Americus referred to was in the State of Georgia. In Cooper v. State, 106 Ga. 119 (32 S. E. 23), the proof as to venue was that the difficulty occurred “in Lawrence-ville, in front of Dan Butledge’s store,” and it was decided that this did not show affirmatively that the offense was committed in Lawrenceville, Gwinnett county. If it were an open question for this court, we would be inclined to hold that the court would judicially recognize in the last two eases that the crime was committed in Sumter and Gwinnett counties and in the State of Georgia, as the court judicially knows that Americus is in Sumter county and Lawrenceville is in Gwinnett county, and it seems to us that the court could not by any possibility conjecture that a trial in these two counties might have been for offenses committed in Americus or Lawrenceville in some other State. But the question is not open, and the decisions cited are binding upon us as precedents, .and have been followed in Smith v. State, 2 Ga. App. 413 (58 S. E. 549), Stringfield v. State, 4 Ga. App. 842 (62 S. E. 569), and Minter v. State, 7 Ga. App. 14 (65 S. E. 1079).

It is insisted by learned counsel for the State that the language of the witness, that she saw the defendant in December, 1910, in Grady county, at her home, and “at lots of other places,” is sufficient to prove the venue; that the plain inference from this testimony is that all the “other places” at which she saw him in December, 19.10, were in Grady county, and that one of these places in which she saw him was the place where they went to school together in December, and where the offense was committed. Proof of venue by inference is not sufficient, unless that is the only possible inference from the facts.

It is also insisted that the venue was not an issue in the case; that no question as to venue was made on the trial. Whether it was an issue on the trial or not, if the question is specifically raised by the motion for a new trial, as provided by the act of 1911 (Acts 1911, p. 150), the brief of evidence in this court must disclose the fact that the venue was affirmatively and clearly proved. Here the question is properly made in the record. It is further insisted that this court will judicially know that five miles from the county-site of Grady county, where the trial took place, was in Grady county. Even if this were true, it would not show that the offense was committed in Grady county, for the witness testified that it was committed about a mile from her home, which was about five miles from the court-house, on the side of the roád, where the defendant took her while on their way to school. But whatever may be the law in other jurisdictions, it is very clear, under the decisions above cited, that while courts of this State may take judicial notice of the geographical divisions of the State and the location of the cities and towns thereof, they will not in a criminal prosecution supply by that means an omission to prove the venue. We reverse the judgment on this ground alone.

Judgment reversed.

Russell, J., absent because of illness.