STATE of North Carolina
v.
David Owen BATDORF.
No. 34.
Supreme Court of North Carolina.
November 11, 1977.*501 Rufus L. Edmisten, Atty. Gen. by J. Michael Carpenter, Associate Atty., Raleigh, for the State of North Carolina.
David J. Turlington, Jr., Clinton, for defendant-appellant.
*502 HUSKINS, Justice:
Defendant contends there was insufficient evidence to show (1) that the murder with which he is charged was committed in North Carolina so as to confer jurisdiction on the courts of this State and (2) that the crime was committed in Sampson County so as to fix venue in that county. Denial of his motions challenging both jurisdiction and venue constitutes his first assignment of error.
This Court has traditionally regarded a challenge to jurisdiction as an affirmative defense with the burden of persuasion on the defendant. State v. Golden, 203 N.C. 440, 166 S.E. 311 (1932); State v. Davis, 203 N.C. 13, 164 S.E. 737, cert. denied, 287 U.S. 649, 53 S.Ct. 95, 77 L.Ed. 561 (1932); State v. Long, 143 N.C. 670, 57 S.E. 349 (1907); State v. Barrington, 141 N.C. 820, 53 S.E. 663 (1906); State v. Blackley, 138 N.C. 620, 50 S.E. 310 (1905).
The majority of states, however, require the state to prove beyond a reasonable doubt that its courts have jurisdiction in a criminal case. See Annot., 67 A.L.R.3d 988, 1004 (1975); State v. Wardenburg, 261 Iowa 1395, 1401-02, 158 N.W.2d 147, 151 (1968), a case dealing with venue which necessarily entails a resolution of jurisdiction, and cases therein cited. For reasons which follow, we think North Carolina should adopt the majority rule.
We have recognized from earliest times that the criminal jurisdiction of our courts is territorially restricted. State v. Brown, 2 N.C. 100 (1794); State v. Knight, 1 N.C. 143 (1799); State v. Cutshall, 110 N.C. 538, 15 S.E. 261 (1892); State v. Jones, 227 N.C. 94, 40 S.E.2d 700 (1946). A defendant's contention that this State lacks jurisdiction may be an affirmative defense in that it presents, in the words of Justice Barnhill in State v. Davis, 214 N.C. 787, 793, 1 S.E.2d 104, 108 (1939), a matter "beyond the essentials of the legal definition of the offense itself." Jurisdictional issues, however, relate to the authority of a tribunal to adjudicate the questions it is called upon to decide. When jurisdiction is challenged, the defendant is contesting the very power of this State to try him. We are of the view that a question as basic as jurisdiction is not an "independent, distinct, substantive matter of exemption, immunity or defense" (State v. Davis, supra) and ought not to be regarded as an affirmative defense on which the defendant must bear the burden of proof. Rather, jurisdiction is a matter which, when contested, should be proven by the prosecution as a prerequisite to the authority of the court to enter judgment.
Moreover, problems akin to double jeopardy are involved. The Full Faith and Credit Clause, U.S.Const. art. IV, § 1, does not require one state to accept the judicial determinations of a sister state as to which possesses jurisdiction in a given case. Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 21 L.Ed. 897 (1873). See also State v. Baldwin, 305 A.2d 555 (Me.1973); Frances Hosiery Mills, Inc. v. Burlington Industries, Inc., 285 N.C. 344, 204 S.E.2d 834 (1974). If different states could successively try an accused for equivalent criminal offenses arising out of the same conduct, the spirit, if not the letter, of the provisions against double jeopardy would be violated. Fox v. Ohio, 46 U.S. (5 How.) 410, 435, 12 L.Ed. 213, 224 (1847) (dissenting opinion); State v. Brown, supra. See Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957); State v. Knight, supra. It seems appropriate, therefore, that when jurisdiction is challenged the State should bear the burden of showing the authority of its trial courts to proceed to judgment. By placing upon the State the burden of proving beyond a reasonable doubt that the crime with which an accused is charged was committed in North Carolina, we minimize the possibility that a defendant will be tried here for a crime actually committed elsewhere. By so doing we enhance the prospect that sister states will give full faith and credit to our decisions respecting criminal jurisdiction even though such deference is not constitutionally required. See State v. Baldwin, supra. This is most desirable. For these reasons we hold that when jurisdiction is challenged, as here, the State must carry the *503 burden and show beyond a reasonable doubt that North Carolina has jurisdiction to try the accused. Our former cases holding that a challenge to the jurisdiction is an affirmative defense with the burden of persuasion on the accused are no longer authoritative.
In the present case Judge Webb properly placed the burden of proof and instructed the jury that unless the State had satisfied it beyond a reasonable doubt that the killing of Leroy West occurred in North Carolina, a verdict of not guilty should be returned. While the court should have instructed the jury, if not so satisfied, to return a special verdict indicating lack of jurisdiction, the instruction given was favorable to defendant and affords him no just grounds for complaint.
Defendant argues, however, that the State's evidence on the question of jurisdiction was insufficient to carry the case to the jury. Therefore, he contends the court erred in denying his pretrial motion for dismissal and his motion for nonsuit at the close of all the evidence. For reasons which follow we hold these motions were properly denied.
A valid bill of indictment, regular on its face, was returned against defendant by the Sampson County Grand Jury. The murder weapon was concealed by defendant in North Carolina and was recovered in North Carolina. The victim's body was found in North Carolina. Materials with which the victim's body was trussed and weighted came from the North Carolina home of defendant's girl friend. These undisputed facts make out a prima facie showing of jurisdiction sufficient to carry the question to the jury and permit the jury to infer that the killing took place in North Carolina. See, e.g., People v. Peete, 54 Cal. App. 333, 202 P. 51 (1921); Breeding v. State, 220 Md. 193, 151 A.2d 743 (1959); Commonwealth v. Knowlton, 265 Mass. 382, 163 N.E. 251 (1928); Commonwealth v. Costley, 118 Mass. 1 (1875); State v. Fabian, 263 So.2d 773 (Miss.1972).
Even if In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), include within their uncertain ambit the requirement that a state's jurisdiction to try a criminal defendant be proved beyond a reasonable doubt, permitting the jury to infer from the prima facie showing that the killing took place within North Carolina does not offend the Due Process Clausethe "rational connection" between the evidence offered and the inference which the jury was permitted to draw is sufficiently strong to meet due process standards. See Mullaney v. Wilbur, 421 U.S. at 702, n. 31, 95 S.Ct. 1881; Barnes v. United States, 412 U.S. 837, 845-46, nn. 9-11, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), and cases there cited. See also United States v. Jones, 508 F.2d 1271 (4th Cir. 1975), cert. denied, 421 U.S. 950, 95 S.Ct. 1684, 44 L.Ed.2d 105.
Defendant's contention that the evidence was insufficient to fix venue in Sampson County is likewise without merit. Former G.S. 15-134 (repealed effective 1 July 1975) provided that all offenses were deemed to have been committed in the county alleged in the indictment unless defendant denied same by plea in abatement and indicated by affidavit the proper county for trial of the charges against him. The statute did not state which party had the burden of proof if such plea were filed. "At common law, the burden of proof was upon the State to prove that the offense occurred in the county named in the bill of indictment. State v. Oliver, 186 N.C. 329, 119 S.E. 370." State v. Overman, 269 N.C. 453, 153 S.E.2d 44 (1967). The purpose of former G.S. 15-134 was to forestall the possibility that a criminal offender would escape punishment merely because of uncertainty as to the county in which the crime was committed. State v. Mitchell, 83 N.C. 674 (1880); State v. Overman, supra.
Former G.S. 15-134 has been replaced by G.S. 15A-135 which deletes the requirement that a defendant contesting venue execute an affidavit setting forth the proper venue and replaces the plea in abatement by "a motion to dismiss" for improper venue under G.S. 15A-952. The new statute, *504 like the old, is silent concerning the burden of proof. Hence, the common law controls and the burden of proof is upon the State to show that the offense occurred in the county named in the bill of indictment. State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975). Venue need not be shown beyond a reasonable doubt since it does not affect the question of a defendant's guilt or the power of the court to try him. Proof of venue by a preponderance of the evidence is sufficient. This accords with the rule in many states. See Annot., 67 A.L.R.3d 988 at 1000 (1975), and cases there cited from sixteen states and from seven federal circuit courts.
Here, the bill of indictment alleges that defendant committed the offense in Sampson County. The body of Leroy West was discovered in Sampson County. That evidence makes a prima facie showing that Sampson County is the proper venue. See United States v. Rees, 193 F.Supp. 849 (D.C. Md.1961); People v. Peete, supra; Breeding v. State, supra; Commonwealth v. Knowlton, supra; Commonwealth v. Costley, supra; People v. Sparks, 53 Mich.App. 452, 220 N.W.2d 153 (1974); Sanders v. State, 286 So.2d 825 (Miss.1973); State v. Fabian, supra; Hawkins v. State, 60 Neb. 380, 83 N.W. 198 (1900); State v. Coolidge, 109 N.H. 403, 260 A.2d 547 (1969), reversed on other grounds, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); McGlocklin v. State, 516 P.2d 1357 (Okl.Cr.App.1973). Upon such prima facie showing defendant must go forward with evidence sufficient to rebut the inferences arising therefrom. He remains silent at his own risk. Since defendant's rebuttal evidence points to no particular place beyond the boundaries of Sampson County as the scene of the crime, we hold that the State's evidence was sufficient to support the conclusion that the offense occurred in Sampson County and to fix venue in Sampson County. Defendant's motion to dismiss for improper venue was properly denied. His first assignment of error is overruled.
Defendant's remaining assignments concern alleged inadequacies in the charge to the jury. He contends Judge Webb failed to instruct that in order to convict defendant the jury must be satisfied beyond a reasonable doubt that the killing occurred in North Carolina and that the burden was on the prosecution to prove that fact. This contention is puzzling. The court instructed the jury at length that unless the prosecution had satisfied it beyond a reasonable doubt that the killing occurred in North Carolina, it should return a verdict of not guilty. This charge was reiterated near the end of the judge's instructions. As noted above, a correct instruction would have required the jury, if not so satisfied, to return a special verdict indicating lack of jurisdiction because a court with no jurisdiction could neither acquit nor convict. Even so, Judge Webb's instruction was favorable to defendant and adequately guaranteed him the right to have the facts determinative of jurisdiction found beyond a reasonable doubt by a jury of his peers.
Finally, defendant assigns as error the court's charge with respect to permissible inferences arising from the discovery of the corpse in Sampson County. Defendant argues that Judge Webb failed to instruct the jury that the inference arising from the discovery of the body in North Carolina is rebuttable and failed to require the jury to consider the evidence of both the State and defendant in its determination of where the killing occurred.
The court charged the jury as follows, the challenged portion being in parentheses:
"Now, (I charge you ladies and gentlemen, if you are satisfied from the evidence beyond a reasonable doubt that the body was found in North Carolina, that is some evidence from which you may conclude that the killing occurred in North Carolina.)
However, you are not compelled to do so. That is evidence which you will take into account along with all other evidence in determining whether you are satisfied beyond a reasonable doubt that this killing occurred in North Carolina."
We hold this instruction was entirely proper. The assignment of error based thereon is overruled.
*505 For the reasons given, the verdict and judgment must be upheld.
NO ERROR.