otherwise unexplained presence, shortly after crime, with accomplice in early morning hours in small town near crime scene, immediate journey to city hundreds of miles south, and pawning of victim's pistol after crime provided sufficient corroboration
How later courts described this case
- otherwise unexplained presence, shortly after crime, with accomplice in early morning hours in small town near crime scene, immediate journey to city hundreds of miles south, and pawning of victim's pistol after crime provided sufficient corroboration
- presence shortly before crime with accomplice near crime scene in small town in early morning hours without explanation, immediate journey to city hundreds of miles south, and pawning of victim's pistol after crime provided sufficient corroboration
- taking judicial notice Breckenridge is in Stephens County
- venue may be proved by circumstantial evidence
Written by the judges who cited it.
The opinion
OPINION ON APPELLANT’S MOTION FOR REHEARING
BELCHER, Judge.
The appellant re-urges his ground of error that the state failed to establish venue in Stephens County, Texas.
A re-examination of the record reveals the following:
Tom Sullivan testified that about 8 a. m., July 4, 1966, while he was traveling along a road southeast of Breckenridge he saw a man lying out in a field, and he immediately reported it to the owner of the land.
Deputy Sheriff Ragland of Stephens County testified in part as follows:
“Q * * * Who owned the land where the body was found?
*635 “The Witness: A Doc Ritchey.
“Q You know this of your personal knowledge ?
“A It’s on the Tax Roll that way, yes, sir.”
Mrs. Christine Ritchey testified that she and her husband owned and lived on a farm about six miles from Breckenridge; and that she called Sheriff Booth after Tom Sullivan came to her house about 9 a. m.
Sheriff Booth, of Stephens County, after testifying that about 9 a. m., July 4, he went to the “Ritchey place,” further testified as follows:
“Q What did you find?
“A I found Clarence Swaim (deceased) out in the field, off to the right of the road.
“Q When you got there at the scene, who was there, do you recall?
“A I don’t believe there was anyone there when I arrived. There had been, and shortly after that, there was several people came up.
“Q You don’t recall whether or not Doc Ritchey and Tom Sullivan were there when you arrived?
“A (No audible answer)
“Q At the body?
“A If they wasn’t, they were there shortly thereafter.
“Q They were around there close, they got there about the same time?
“A Yes.
“Q Now, then, what did you do when you got there to the scene where the body was?
“A I called on the radio for an ambulance and for a coroner.
“Q All right, sir. And, then, what did you do?
“A Waited for the ambulance and the coroner.
“Q All right. Did you aproach the body and disarrange the body at that time?
“A No, I didn’t disarrange it. I just approached the body.
“Q Did you touch the body before the coroner got there?
“A No.
“Q How long was it before the coroner got there?
“A Oh, I imagine it was 30 minutes, maybe longer.
“Q Was the ambulance coming along pretty quick?
“A About the same time, yes, sir.
“Q * * * Was the coroner Cecil Mayes ?
“A Yes, Cecil Mayes.
“Q What is his capacity in Stephens County ?
“A County Judge.
* * * * * *
“Q You arrived at the scene where the body was, on July 4, 1966, in Stephens County, Texas, at approximately what time, if you recall?
“A Well, I don’t remember the time exactly, but it was sometime around *636 8:30, to a quarter to nine, somewhere about that time.”
Art. 13.10, Vernon’s Ann.C.C.P. (1965), authorizes a prosecution in the county “where the dead body is found.”
In considering the construction to be applied to the above quoted phrase which was added by amendment in 1935, this court in McCaine v. State, Tex.Cr.App., 211 S.W.2d 190 , said:
“As contended by the State, the reason for such addition is given in the emergency clause, suggesting that the old article above quoted was not sufficiently broad and definite so that the Legislature thought it best to add a further clause relative to the venue in murder cases. The contention of appellant that such added clause can only be applied in the event that the injury herein took place in Harris County, the death therefrom occurring in Jefferson County and the body be found in a further county, is not sound. Evidently the last amendment was intended to and did fix the venue of any homicide, either in the county where the injury occurred, where the death therefrom occurred, or where the dead body was found, and added a third place of venue to an already existing statute, * * See also: 29 Tex.Jur.2d 161, Sec. 135; Gunn v. State, 170 Tex.Cr.R. 288 , 340 S.W.2d 496 .
Venue being a jurisdictional fact, not an element of the offense, it need not be established by evidence beyond a reasonable doubt, and may be proved by circumstantial as well as direct evidence. 24 Tex.Jur.2d 418, Sec. 740; 1 Branch 2d 464, Sec. 471.
The facts and circumstances in evidence are sufficient to authorize the conclusion that the dead body of the deceased was found in Stephens County, Texas.
The motion for rehearing is overruled.