Murry v. State

1. Criminal Law and Procedure. False pretenses. Section 1168, Code 1906. Jurisdiction. Where one removed cotton upon which there was a landlords lien from one county into another and sold same without informing the purchaser thereof of such lien, the crime of false pretenses was committed in the county in which the cotton was sold, hence an indictment under section 1168, Code 1906, in his home county for obtaining money by false pretenses should be quashed for want of jurisdiction. ' ■ 2. Criminal Law. Section 1406, Code 1906. Venue. Where an offense is committed partly in one county and partly in another, either county shall have jurisdiction where prosecution shall be first begun.

Appeal from circuit court of Claiborne county. Hon. H. CL Mounger, Judge. John Murry moved some cotton, upon which there was a landlord’s lien, from his home county, Claiborne, to Copiah county, and sold same without informing the purchaser thereof of such a lien; he was indicted under section 1168> Code 1906, in the circuit court of Claiborne county for the crime of false pretenses, was convicted ■and sentenced, and appeals to the supreme court. A full statement of the facts is given in the opinion of “the court. The court below maintained its jurisdiction in this ■case, on basis of sections 1401, 1406 and 1408 of Code •of 1906. The first reads as follows: “The local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where the ■offense was committed. But, if on the trial the evidence make it doubtful in which of several counties, including that in which the indictment alleges it, the offense was committed, such doubt shall not avail to procure the acquittal of the defendant.” The second reads as follows: “When an offense is •committed partly in one county and partly in another, or where the acts, effects, means or agency occur in whole •or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.” The third reads, as follows: “Where property is •stolen in another state or county and brought into this •state, or is stolen in one county in this state and carried into another, the offender may be indicted and tried in any county into or through which the property may have passed, or where the same may be found. Yardaman’s testimony alone is relied on by the state to show a lease of land in Claiborne county to appellant. '2nd. To show that appellant removed from said land three bales of cotton, which he sold to Kemp. 3rd. That appellant owed him three bales cotton rent, which he had not paid. Not one word of his testimony establishes any of said matters. Does the so-called confession, if admissible in evidence, do so? Bead from beginning to end there is nothing that establishes any of said matters. On the contrary, the charge is selling to Kemp, without, disclosing lien on cotton. Every word of the testimony,, as to where the sale was made, shows that if made at all by appellant, ór Ford or Johnson, it was made in Copiah county, at Hazlehurst. Even the inception of any such crime as is charged in indictment, so far as cotton sold Kemp is concerned, fails to have been in Claiborne county. Then section 1401 can have no bearing,, because no element of doubt can exist from the evidence,, as to where the cotton, making 390 pounds sold by Ford, was so sold. It was sold to Kemp by-Ford, thus fixing1 the jurisdiction, if Ford was on trial, instead of appellant. Was the offense, charged against appellant, in the indictment, committed partly in one county, to-wit: Claiborne, and partly in Copiah county, or do the acts, effects, means or agency occur in whole or in part in different counties? One or other of the above must exist to place jurisdiction in the court of either county. The charge intended to be made by the indictment, although in fact it charges no crime enumerated in the section of the Code above quoted, was a sale to Kemp, by which he obtained from Kemp whatever he received, without disclosing to him that there was a lien on the thing sold tollina, Kemp, there being in fact a lien on it, and such lien being known to so exist by appellant. Then, how-does Yardaman, even if the evidence showed a lien on the cotton actually sold to Kemp, or showed that the cotton sold was raised on land belonging to Yardaman, and which he had leased to appellant? The facts as shown in the record are: 1st. That appellant had nothitíg whatever to do with the direct sale of any cotton whatever to Kemp. 2nd. Nothing in the-record shows that three bales of cotton, as charged in indictment, was sold by any one to Kemp. One bale, ginned at Gallatin, in Copiah county, weighing 3-90 pounds, as testified to by Wade, was sold to Kemp by a man giving his name as Ford, as testified to by Kemp. This done at Hazlehurst in Copiah county, Louis Thomas tells that Jack Johnson took a load of cotton in seed to •Gallatin and had it ginned giving the name of Ford. He did not know from whence the cotton came. It was in a wagon owned by appellant, drawn by a team which belonged to appellant. John Murray testified as to how Jack Johnson came into possession of his wagon and team, it being rented to Jack, who used it-doing general hauling; hence, Jack’s possession is explained without •showing any guilty knowledge on the part of appellant, that Jack was using wagon in hauling either stolen cotton, or cotton that belonged to appellant, with appellant’s knowledge and upon which a lien existed in favor ■of Vardaman. The above synopsis of the testimony shows one positive fact, and that is that Johnson, under an assumed name, hauled a load of seed cotton to Gallatin, in Copiah, county, and afterwards took it to Kemp at Hazlehurst in Copiah county and sold it to Kemp. 'Therefore, every element of section 1406 is lacking, whereby the circuit court of Claiborne county can possibly assume jurisdiction. The sale to Kemp constitutes the gist of the crime, if in fact a crime has been committed; and this sale was made wholly within the county of Copiah and not in Claiborne county. Hence the circuit court of Claiborne county is without jurisdiction. The second assignment of error raises what seems to me the only serious question in the record, and that is the question of jurisdiction of the'circuit court of Claiborne county. Before discussing this assignment, it will be well to see exactly what the material facts are. Mr. Vardaman testified that the defendant rented land from bim for the year 190*9, and the rent note which the defendant executed to him was introduced. He testifies that the defendant made between eight and nine bales of cotton, but delivered to him only five bales, aggregating something less than twenty-three hundred pounds. The negro had agreed to pay him three thousand pounds of cotton, so. that he lacked something over-seven hundred pounds of paying Mr. Vardaman in full. Under our law, Mr. Vardaman had a lien for his rent on all of the rest of the cotton which the defendant made-above the five bales which he delivered to Mr. Vardaman. Assuming that the defendant employed or procured Jack Johnson to run this cotton off and have it ginned in Copiah county and then had Jack Johnson to sell it in Copiah county, the question is, I think, whether or not under section 1406 of the Code of 1906, the circuit court of Claiborne county had jurisdiction. There is no question, of course, but that the circuit court of Copiah county would have had jurisdiction. Section 1406 divides itself broadly into two parts. Either of two counties is given jurisdiction: First, when an offense is committed partly in one and partly in an-’ other; and second, where the act, effect, means or agency occur wholly or in part in different counties. Light is thrown on the meaning of the legislature by the following language: ‘ ‘ The jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall first begin.” So far as the first division of the section, given above- is concerned, the offense in this case, consisting of the sale to Mr. Kemp without informing him of Mr. Vardaman’s lien, was committed wholly in Copiah county. No part of the actual offense itself, that is the negotiation of the sale, the sale and transfer of the cotton, occurred in Claiborne county. But the means or agency occurred, in the rather awkward language of the section in Claiborne county, as well as in Copiah county. The means of the sale and the agency out of which it grew, were put in motion in Claiborne county when the defendant procured Jack Johnson, alias Henry Ford, to take the cotton from Mr. Vardaman’s place in Claiborne county to a gin in Copiah county, and afterwards to sell it to Mr. Kemp in Copiah county. Furthermore, “the offense was commenced and prosecuted,” in the language of section 1406, in Claiborne county.