State v. Bennett

OPINION

BROCK, Justice.

Defendant was convicted of selling a Schedule III controlled substance in violation of the Drug Control Act. The Court of Criminal Appeals reversed the conviction and remanded for a new trial, holding that the State failed to establish by a preponderance of the evidence that the offense occurred in the county of trial, Williamson County. To review this determination, we granted the State’s petition for certiorari.

Both Article 1, § 9, Constitution of Tennessee, and T.C.A. § 40-104, provide that the defendant has the right to trial by a jury “ . . .of the County in which the crime shall have been committed.” This right of venue is not an element of the criminal offense and, so, need not be proven beyond a reasonable doubt; preponderance of the evidence is sufficient. Harvey v. State, 213 Tenn. 608, 376 S.W.2d 497 (1964); *950Gilliland v. State, 187 Tenn. 592, 216 S.W.2d 323 (1948). Circumstantial evidence will do. Hopson v. State, 201 Tenn. 337, 299 S.W.2d 11 (1957).

The defendant made this drug sale at his home to undercover agent, Johnson, of the T.B.I. On the issue of venue, agent Johnson testified as follows on direct examination:

“Q. Mr. Johnson, this sale of the PCP on March 1, 1974, for $80.00, did this take place in Williamson County?
“A. Yes, sir.”

On cross-examination, he testified:

“Q. Where did you drive?
“A. Went up to the Interstate until the next exit, got off on Peytonsville Road.
“Q. How far down the Peytonsville Road did you go?
“A. I don’t recall.
* * * * * *
“Q. You know where the County Line is on Peytonsville Road?
“A. No sir, I don’t.
“Q. How do you know it’s in Williamson County?
“A. Well, this is what the Sheriff told me.
“Q. It’s what the Sheriff told you, but you don’t know yourself, while you were there, that the sale happened in Williamson County, do you?
“A. No sir.”

There is no other evidence in the record relevant to the issue of venue, and defendant contends that the foregoing testimony, part of which is hearsay, is insufficient to support the verdict.

Defendant did not object to the hearsay statement at the trial; it is, therefore, rightly to be considered as evidence in the case and is to be given such weight as the jury think proper under the circumstances obtaining. Yates v. State, 206 Tenn. 118, 332 S.W.2d 186 (1960); Paine, Tennessee Law of Evidence, § 185 at 206; McCormick, Law of Evidence, § 54 at 125-126; Uniform Rules of Evidence, Rule 1(1), (2).

This rule is well settled and we adhere to it. We think it is a sound rule. Nor do we agree with the view of the Court of Criminal Appeals that it operated unfairly against the defendant in this case. As noted, he did not object to the hearsay statement; neither did he offer any witness to show that the defendant’s residence where the sale occurred was not located in Williamson County. In short, defendant did not actually attempt to dispute venue in the trial court.

The Court of Criminal Appeals also concluded that “Venue in this case was established, at best, by inference”; but proof by inference is sufficient if the inference is a reasonable deduction from proven facts. Hopson v. State, supra, 299 S.W.2d at 14; Maples v. State, 50 Tenn. 408 (1872). The Court cited Franklin v. State, 64 Tenn. 613 (1875), which holds that proof of venue must not be left to “inference or construction.” However, the inference in that case had to arise from the following facts: The offense was committed near a house; the house was in the county; therefore, the offense occurred in the county. In our view, the inference in that case was much more tenuous than that here, where there is evidence that the sheriff stated that the location of the offense was within the county-

This case is more analogous to Gilliland v. State, supra, in which the defendant was convicted of robbing the prosecutor by taking his taxicab and money. The prosecutor testified that he did not know of his own knowledge the particular county he was in when the theft occurred, but he described the roads he drove over, and mentioned several landmarks. The State then introduced the testimony of the clerk of the criminal court, who had lived in the county thirty (30) years and worked as a postman, who then testified that the area described was, indeed, in the county.

Also quite similar is Taylor v. State, 520 S.W.2d 370 (Tenn.Crim.App.1974), in which *951the defendant was convicted for first degree murder in Shelby County, and one of the two issues in the case was whether venue was proven. The only evidence of venue was provided by the testimony of an eyewitness:

“Q. Mr. Griffin, did the facts that you have testified to here today, did they happen in Memphis, Shelby County, Tennessee?
“A. Yes, Sir.”

The Court found this proof to be sufficient.

Finally, we point out that with respect to venue slight evidence will be enough to carry the prosecution’s burden of preponderance if it is uncontradicted, as it is here. Collins v. Commonwealth, 508 S.W.2d 43 (Ky.1974); 1 Underhill, CRIMINAL EVIDENCE (6th ed. Herrick 1973), § 98. In our judgment, the evidence of venue supports the verdict.

We, therefore, reverse the judgment of the Court of Criminal Appeals and affirm that of the trial court. Costs are taxed against the defendant.

COOPER, C. J., and HARBISON, J., concur. HENRY, J., dissenting, FONES, J., joining in dissent.