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State v. Howe

Supreme Court of Arizona

November 14, 1949

STATE
v.
HOWE

The appeal being wholly without merit the judgment of conviction is affirmed.

J. Frank Gibson and Marvin Johnson, of Phoenix, attorneys for appellant.

Fred O. Wilson, Attorney General, Chas. Rogers, Assistant Attorney General, Maurice Barth, Assistant Attorney General, Douglas Clark, Deputy County Attorney, of Phoenix, attorneys for appellee.

Udall, Justice. La Prade, C. J., and Stanford, Phelps, and De Concini, JJ., concur.

OPINION

Udall, Justice.

[69 Ariz. 200] The defendant, Carl Howe, was convicted by a Maricopa County jury of

Page 468

receiving stolen property, a felony, Sec. 43-115, A.C.A.1939 and he appeals from the judgment and sentence thereafter imposed by the court. The record discloses that at the close of the State's case the defense moved to dismiss the information on the ground that the State had wholly failed to prove venue and hence the court was without jurisdiction of the purported crime. The defendant's sole assignment of error is predicated upon the trial court's denial of this motion. It is the law that:

"In so far as venue in a criminal case is concerned, the crime must have been committed within the boundaries of the county to give the superior court jurisdiction to try it; * * *." Sam v. State, 33 Ariz. 383, 265 P. 609, 619.

In the instant case, up to the time the State rested, the direct question was not asked as to the city or county in which the alleged criminal transaction occurred. As was stated in Quayle v. State, 19 Ariz. 91, 165 P. 331, 336:

"* * * The matter (of venue) could have been readily established by the simple means of a few questions. It is an inexcusable neglect for the prosecution to omit [69 Ariz. 201] direct proof of the venue in the trial of every criminal case, and trust to the uncertainty of the proof of facts from which the venue may be inferred; yet sometimes this occurs, and this is one of the times of its occurrence. * * *."

However, it does not necessarily follow that a failure to offer direct proof of venue is fatal to an affirmance, for in the case last cited this court found the evidence was ample from which a jury could reasonably have drawn ...


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