Sandifer v. State

101 So. 862, 136 Miss. 836, 1924 Miss. LEXIS 190

• Court: Mississippi Supreme Court
• Decided: December 8, 1924
• Docket: No. 24508
• Status: Published

Opinion

Sykes, P. J.,

delivered the opinion of the court.

The appellant, Turner Sandifer, was indicted, tried, and convicted of having* in his possession a distillery, commonly called a still. By the judgment of the court he was sentenced to serve a term of two years in the penitentiary, from which judgment this appeal is here prosecuted.

The affidavit for a search warrant and the search warrant were both introduced in evidence by the state. Both of these in effect describe the place to be searched as the residence, premises, automobiles, and outhouses occupied by Turner Sandifer in district No. 5-, Copiah County, Miss., near Georgetown. A deputy sheriff who testified to the finding of the distillery on the premises of the appellant testified that is was in the state of Mississippi, Pike county.

One of the causes for reversal urged by the appellant is the failure of the state to prove venue. The venue, of course, must be proven. This question is jurisdictional. A failure to prove venue necessarily results in a reversal of'a cause. While the only witness who testified as to the venue for the state laid it in Pike county instead of Copiah,■ it is the contention of the state that this was a lapsus Ungues, and that the witness meant to say Copiah county instead of Pike. We do not know what he meant to say, but we do know that he said Pike county, and we have no reason to know that the witness meant Copiah.

-It is next insisted by the state that since the affidavit and search warrant were both introduced in testimony, and both allege the residence and premises to be searched as being in Copiah county, then we can consider the search warrant and affidavit as tending to prove the venue. This position is not tenable. Neither the affidavit nor search warrant is testimony of the venue. The only purpose served by the introduction of these papers is to show that there was a proper affidavit and a valid search warrant issued thereupon. This is the only question to which this testimony pertains. While it is true that the proper venue must be laid in the affidavit and search ■warrant, they are not proof of this fact. This case then resolves itself into one where the only testimony about where the offense was committed is that it was committed in a different county from the one in which the appellant was indicted and tried.

Por failure to prove the venue the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.