dissenting. The only fact connecting the crime to Conway County was the discovery of the body of the victim of this murder in Conway County. The only evidence having a tendency to locate the place of the murder indicated it occurred near Lake Conway in Faulkner County.
Although the corpse was found in Conway County about an hour after the victim and the appellant were seen together at Lake Conway, the uncontroverted testimony by the state medical examiner was that the body had been moved after the death. Death was caused by trauma from a blunt instrument and/or by strangulation. The apparent murder weapon, a blunt stick or club, with human blood on it, was found at Lake Conway where the parties were last seen. The Morrilton Chief of Police, who investigated the murder, concluded it happened in Faulkner County.
Proof of lack of venue is clearly discernible in the majority opinion. I agree with the opinion where it states that the state need not prove jurisdiction “unless evidence is admitted that affirmatively shows that the court lacks jurisdiction.” We stated in Gardner v. State, 263 Ark. 739, 746, 569 S.W.2d 74 (1978), that “before the state is called upon to offer any evidence on the question of jurisdiction there must be positive evidence that the offense occurred outside the jurisdiction of the court.”
Arkansas Statute § 41-110(2) (Repl. 1977) states: “[t]he state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.” The statute also specifically requires that “jurisdiction” and “venue” be proven by the state “beyond a reasonable doubt” when there is such affirmative evidence.
Article 2, Section 10, of the Arkansas Constitution provides that “the accused shall enjoy the right to a speedy and public trial by impartial jury of the county in which the crime shall have been committed. . . .” the Sixth Amendment to the Constitution of the United States reads as follows: “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. . . .”
The danger of allowing a defendant to be tried in any county where the victim’s body is found is that it expands the jurisdiction of the courts beyond their statutory and constitutional limitations. It creates the possibility of a body being moved to another county. This Court has, in my opinion, legislated a venue change which serves the public interest and the desire of the Court. Even though the purpose is a noble one it has been accomplished in the face of existing law. We have authority to point out needed changes in the law, but not to enact legislation or amend the Constitution.
I would reverse and remand the matter for a trial in Faulkner County, where the crime no doubt occurred.