PEOPLE v. MONTGOMERY (1939)

Defendant in this case was convicted of a felony, to-wit: a violation of section 484 of the Penal Code, in that, in the county of Mendocino, he feloniously stole, led and drove away a steer which was the personal property of Caspar Lumber Company, a corporation. It was the contention of the defendant at the trial that he had permission from the company to take and sell the steer. Several errors are relied upon for a reversal, but it is only necessary for us to discuss one question—the jurisdiction of the court.

The steer was taken from the slaughter-house of the Caspar Lumber Company, but there is no direct proof in the record as to the county in which that slaughter-house is situated. Appellant therefore contends that there was a failure of proof of venue in the case. The answer of the attorney-general to this contention appears in his brief, as follows: “The portions of testimony above set forth show that the steer with which the defendant was charged with stealing was taken from the slaughter-house of the Caspar Lumber Company; that the slaughter-house was one-quarter of a mile from Caspar; that Caspar was within six miles of Fort Bragg, an incorporated city, of which the court must take judicial notice as hereinabove stated. Therefore, it definitely appears that the slaughter-house from which the steer was taken was approximately six and one-quarter miles from the City of Fort Bragg, and the court will take judicial notice of the fact that any point within a distance of forty miles of Fort Bragg would be within the County of Mendocino.”

The question therefore presented is whether or not those facts of which the court can take judicial notice are thereby placed before the jury without any instructions whatever in respect to them.

The rule of the common law that crimes are, although local, cognizable and punishable exclusively in the jurisdiction where committed, has been adopted under the provisions of section 777 of the Penal Code, which reads in part as follows: “Except as herein otherwise provided, the jurisdiction of every public offense is in the county where it is committed.” It follows that the courts of another county have no jurisdiction to inquire into the case unless authorized by law.

It is a familiar rule of criminal law that the venue of the crime must, like any other fact in the case, be proved by the prosecution. People v. Parks, 44 Cal. 105; People v. Roche, 48 Cal. 382; People v. Bevans, 52 Cal. 470; People v. Murphy, 51 Cal. 376; People v. Aleck, 61 Cal. 137, 138.

Conceding that the court could take judicial notice of the facts detailed by the attorney-general above, we are of the opinion that the only manner in which those facts could be placed before the jury would be through appropriate instructions of the court. This situation is expressly provided for by section 2102 of the Code of Civil Procedure, as follows: “Whenever the knowledge of the court is, by this Code, made evidence of a fact, the court is to declare such knowledge to the jury, who are bound to accept it.” The proper procedure to follow under such circumstances is set forth in People v. Mayes, 113 Cal. 618–624, 45 P. 860, 862, in this language: “A witness on behalf of the defendant testified that on the night when the animal was taken he met Ruiz, one of the witnesses for the prosecution, driving a dark-colored animal; that the moon was up and shining, and the night was pretty light. On being asked what time of the night it was, he said that he was unable to tell, but thought that it was ‘along about ten o'clock, somewheres about there, I suppose,’ and at another time he said that it was ‘betwixt nine and ten, I suppose.’ The court instructed the jury, as a matter of judicial knowledge, that the moon on that night rose at 10:57 p.m. It does not appear that any evidence upon that point had been offered at the trial, nor was such evidence necessary. People v. Chee Kee, 61 Cal. 404. Section 1875, subd. 8, Code Civ.Proc., declares that courts take judicial knowledge of ‘the laws of nature, the measure of time and the geographical conditions and political history of the world,’ and that ‘the court may resort for its aid to appropriate books or documents of reference’; and section 2102, Code Civ.Proc., declares, ‘Whenever the knowledge of the court is by this Code made evidence of a fact, the court is to declare such knowledge to the jury, who are bound to adopt it.’ ‘Judicial notice will be taken of the time the moon rises and sets on the several days of the year, as well as of the succession of the seasons, the difference of time in different longitudes, and the constant and invariable course of nature.’ Case v. Perew, 46 Hun [N.Y.] 57. See, also, State v. Morris, 47 Conn. 179; Munshower v. State, 55 Md. 11 [39 Am.Rep. 414].”

This court referred to the same rule in Fouch v. Werner, 99 Cal.App. 557–562, 279 P. 183, 185, where we said: “It is true that the court will take judicial notice of the time when the sun rises and sets [citing authorities], and may so instruct the jury. (Section 2102, Code Civ.Proc.)” It thus appears that though the trial judge here might have (through judicial notice and by reference to a map of California), known certain facts which would have justified a finding on his part that the crime was committed in Mendocino county, the law did not impute such knowledge to the jury, and they could only acquire it by means of instructions, as required by the code section quoted above. “Judicial notice” means notice to a judicial officer, but not to a jury. In the instant case no instructions whatever were given to the jury bearing on this matter, and necessary facts to establish venue were not proven.

It follows that upon the record before us the court had no jurisdiction to try the case.

It is therefore ordered that the judgment be reversed, and the case remanded for a new trial, or such other proceedings as may be proper in the premises.

On Petition for Rehearing.

The petition for rehearing is granted, and the cause ordered resubmitted as of this date upon the briefs on file.

Mr. Justice TUTTLE delivered the opinion of the court.

We concur: PULLEN, P.J.; THOMPSON, J.