dissenting.
A Tennessee citizen, prosecuted for criminal conduct, has a constitutionally ordained right to trial in the county “in which the crime shall have been committed.” Art. 1, Sec. 9, Constitution of Tennessee. See also See. 40-104, T.C.A. He may not be deprived of this right without his consent, State v. Denton, 46 Tenn. 539 (1869), and proof of venue must not be left to inference or construction. Franklin v. State, 64 Tenn. 613 (1875).
Proof of venue is both a constitutional imperative and an essential predicate to the jurisdiction of the trial court. It may be proved of course, by circumstantial evidence, Gilliland v. State, 187 Tenn. 592, 216 S.W.2d 323 (1948), and by a preponderance of the evidence, with the burden of proving venue resting upon the prosecution. Harvey v. State, 213 Tenn. 608, 376 S.W.2d 497 (1964).
I agree with the general proposition that hearsay or evidence otherwise incompetent, admitted without objection, “may be considered for whatever it is worth by the court or jury trying the case.” This is the holding of Yates v. State, 206 Tenn. 118, 332 S.W.2d 186 (1960), relied upon by the majority. The ensuing sentence, apparently overlooked by the majority, reads as follows:
Evidence intrinsically destitute of probative quality acquires no new attribute in point of weight by its production in the case. 206 Tenn. at 121, 332 S.W.2d at 187.
Moreover, Yates did not deal with a constitutional imperative. Again, venue is constitutionally indispensable to jurisdiction and must be proved.
The majority places strong emphasis on the failure of the defendant to object to the hearsay testimony. In the context of this trial an objection, at this point, would have been a tactical blunder. The witness had testified on direct examination that the drug sale took place in Williamson County. But on cross-examination he admitted that he did not know that the sale took place in Williamson County, but that the Sheriff, who was not present at the sale, told him it happened in that county. This cross-examination utterly demolished the State’s proof of venue and yet, the majority holds that defense counsel should have objected to an answer which was completely favorable to his client. And by failing to object, the majority holds that this testimony, utterly destitute of probative value, is sufficient to meet the constitutional imperative of venue. This won’t wash. A defendant’s due process rights preclude a holding that he cross-examines at his own peril and at the risk of validating incompetent testimony.
The majority relies upon Gilliland v. State, supra, which, in my view has no *952relevance. There the venue was fully established by competent proof.
Reliance is also placed upon Taylor v. State, 520 S.W.2d 370 (Tenn.Cr.App.1974). This authoritative opinion of the Court of Criminal Appeals is, in no sense, analogous to the instant case. There the witness testified positively that the criminal acts occurred in Shelby County. He did not render his testimony worthless by affirming a fact on direct examination and disaffirming the same fact on cross.
The record in this case shows that the Sheriff of Williamson County was present in court during the trial. Indeed, he was the lead-off witness for the State. He was not recalled to establish venue. At the conclusion of the State’s proof, the defendant moved for a verdict of acquittal on the single ground that the State had failed to prove venue.
It would have been a simple matter for the State to have re-opened and called the Sheriff to supply the void in this critical area. It did not.
Instead of calling the Sheriff the State relied upon the testimony of a witness who, by his own admission, did not know in what county the sale occurred — just what the Sheriff told him.
This set of facts is sufficient to trigger the missing witness rule first announced in Fisher v. Travelers’ Insurance Company, 124 Tenn. 450, 138 S.W. 316 (1911), and set out in Craig v. Marquette Cement Co., 190 Tenn. 234, 229 S.W.2d 148 (1950) as follows:
The failure to call an available witness possessing peculiar knowledge concerning facts essential to [a party’s] cause, relying instead upon evidence of witnesses less familiar with the matter, gives rise to a strong presumption that the testimony of such uninterrogated witness would not sustain the contentions of [the party failing to call him]. (Emphasis supplied). 190 Tenn. at 237, 229 S.W.2d at 149.
The “strong presumption” phraseology is not universally used in the cases. Waller v. Skeleton, 31 Tenn.App. 103, 117, 212 S.W.2d 690, 697 (1948), an earlier case, holds that the failure to call such a witness “affords an inference.” Kidd v. Tennessee Gas Co., 33 Tenn.App. 302, 314, 231 S.W.2d 793, 798 (1950), a later case, uses the expression, “a presumption arises”, and Wooten v. State, 203 Tenn. 473, 314 S.W.2d 1 (1958) seems to view it as an “inference”, not conclusive as to any party but merely a fact for the consideration of the jury.
Whether the failure to call the Sheriff who possessed peculiar knowledge of the facts, relying instead upon one who had no such knowledge, creates a presumption, a strong presumption, affords an inference, or is an inference, the fact remains that this situation gives cause for pause. It leaves dangling the requirements of a constitutional imperative.
Under these circumstances I cannot reverse the unanimous conclusion reached by the Court of Criminal Appeals.
I would affirm.
FONES, J., concurring in dissent.