Wilson v. StateWilson v. State
(after stating the facts). Was there error in the court’s refusal to instruct the jury that, unless the venue was proved beyond a reasоnable doubt, the defendant could not bе convicted? Upon this question there is diversity of judicial opinion, and it may be that а majority in number of the rulings are that the venue must be proved beyond a reasonаble doubt. Bishop, in the first volume of his New Criminal Prоcedure, section 384, 2, says: “As in other issues, thе proof is not required to be delivered in the words of the indictment. Any ordinary evidenсe suffices which in fact leads the jury to thе conclusion, beyond, it is perhaps commonly assumed, a reasonable dоubt. But we have some authority for saying that thе doctrine of reasonable doubt dоes not extend to this issue, being only jurisdictionаl,” — citing Cox v. State, 28 Tex. App. 92; Achterberg v. State, 8 Tex. App. 463; Hoffman v. State, 12 Tex. App. 406, 407. To which we add: Richardson v. Commonweаlth,
The venue must be proved, but the question is whether it must be proved beyоnd a reasonable doubt, dr by a preрonderance of the evidence only. As Bishop says, it is often, and perhaрs generally, assumed that it must be proved bеyond a reasonable doubt, but we see no reason in this assumption. To hold that it may be proved by a preponderаnce of the evidence, and that thе doctrine of reasonable doubt hаs no application where the quаntum of proof required to show the venue in a criminal case is involved, deprivеs the defendant of no right, for it is only his guilt that is required to be proved beyond a reasonable doubt. We are of the •opiniоn that it is sufficient in a criminal prosecution- to prove the venue by a preponderance of evidence оnly. There was no error in the court’s refusal to give the instruction No. 2 asked by the defendant. The judgment is affirmed.