Griffin v. State

Tom Glaze, Justice,

concurring. The majority indicates venue in this case may have been erroneous but does not reach the issue because the appellant failed to seek a writ of prohibition in circuit court. Based upon that portion of the majority’s holding, I concur in the result it reached. I write because the court is divided four to three in this decision, and I wish to make my position clear that I may well have gone the other way if the court had considered the venue issue.

The venue question posed, but not answered here, arises when a municipal court entertains a state’s misdemeanor action against a defendant where the commission of the crime occurred outside the territorial limits of the municipality but within the county where the alleged violation was committed. Concerning a municipal court’s jurisdiction, the Arkansas Constitution clearly empowered the General Assembly to invest such jurisdiction as may be necessary in municipal corporation courts. This court has approved the General Assembly’s granting such jurisdiction in a number of cases. Pulaski County Municipal Court v. Scott, 272 Ark. 115, 612 S.W.2d 297 (1981); Johnson v. State, 200 Ark. 969, 141 S.W.2d 849 (1940); Brickell v. Guaranty Loan & Trust Co., 192 Ark. 652, 93 S.W.2d 656 (1936); State ex rel. Moose v. Woodruff, 120 Ark. 406, 179 S.W. 813 (1915). In this respect, Ark. Code Ann. § 16-17-206(b) (Supp. 1987) provides the jurisdiction of a municipal court is coextensive with the county except that, in counties having two judicial districts, the jurisdiction is limited to the district in which the court is situated. Of course, venue is distinguishable from criminal jurisdiction, which refers to the judicial power to hear and determine a criminal prosecution, in that it commonly pertains to geographical subdivisions, relates to practice and procedure and may be waived. In the instant case, as Justice Hickman notes in his dissent, five municipal courts have been established by law in Washington County, Arkansas. While each of the five courts has subject matter jurisdiction of traffic offenses, such as those brought against the appellant in this cause, I can find no venue statute that actually provides these misdemeanor offenses must be filed in a municipal court located within a prescribed geographical boundary.

Arkansas statutory law, Ark. Code Ann. § 16-17-116 (1987), does provide for a rather restrictive change of venue procedure from one municipal court to another once a criminal proceeding is filed and two or more municipal courts are located in the county. Section 16-17-116, however is not definitive concerning the court in which the initial criminal proceeding must be filed. I suppose it could be assumed the venue requirement in municipal court is coextensive with that court’s countywide jurisdiction, and it does not matter that the criminal offense occurred or the defendant resided outside the municipality’s territorial limits. However, if that were true, such misdemeanor proceedings can be brought against a defendant in one municipal court in the county no matter how many municipal courts there may be. Also, such a construction of § 16-17-116 would give municipal courts extra-territorial venue — which is not the situation with any other Arkansas trial court with criminal law subject matter jurisdiction. See Ark. Code Ann. § 16-19-402 (1987) (action brought before justice of peace where defendant resides or is found); Ark. Code Ann. § 16-18-110 (1987) (police court has authority to hear criminal offenses committed within the limits of the corporation); Ark. Const, art. 2, § 10 (accused has right to impartial jury trial in county where crime is committed and venue may be changed to any other county within the judicial district upon application of the accused).1

The General Assembly’s failure to provide a venue law for bringing criminal proceedings in municipal court was not argued in this cause. Thus, what effect this omission might have remains unanswered. I have no doubt that the General Assembly has the authority, as well as the responsibility, to resolve this venue question. See Brickell, 192 Ark. at 655, 93 S.W.2d at 657; see also 22 C.J.S. Criminal Law § 176 (1961); 21 Am. Jur. 2d Criminal Law % 365 (1981). If the General Assembly fails to act, I am sure this court can expect some defendant to raise this venue question properly. When that occasion arises, confusion in the state’s municipal court process will surely result if this court holds — contrary to present practice and apparent belief — that a municipal court does not have venue of a crime or misdemeanor offense committed outside its territorial or city limits.

Amendment 55 to the Arkansas Constitution has since been enacted, but I note that prior Arkansas statutory law, still compiled in the code, provides for a change of venue from a justice of peace to municipal court. See Ark. Code Ann. § 16-19-409 (1987); see also Ark. Code Ann. §§ 16-19-401 — 408 (1987) for jurisdiction and venue provisions for justice of peace courts and how those provisions are affected where a municipal court exists.