#### Edwards v. State.

4979

337 S. W. 2d 865

Opinion delivered September 12, 1960.

N. L. Schoenfeld and Tilghman E. Dixon, for appellant.

Bruce Bennett, Attorney General, by John T. Haskins, Asst. Attorney General, for appellee.

Carleton Harris, Chief Justice.

Appellant, E. W. Edwards, was charged by Information with violation of the Overdraft Act (Ark. Stat. Anno., 1947, Sections 67-714 to 67-716), was found guilty by the jury, and Ms punishment fixed at six months imprisonment in the State Penitentiary. Several points are raised in urging a reversal, but the first contention effectively disposes of the appeal, vis., the Garland County Circuit Court was without jurisdiction.

The undisputed proof reflects that appellant, a building contractor, issued a payroll check upon the Worthen Bank and Trust Company of Little Bock in the amount of $48.10 on May 29, 1959, to an employee, Howard Duff. The check was delivered to Duff, a resident of Hot Springs, in appellant’s office in Little Bock. Duff subsequently cashed the check at Halsell’s service station and grocery store in Hot Springs. Thereafter, the bank at Hot Springs processed the check for payment, but it was returned by Worthen Bank and Trust Company with the notation “insufficient funds.” On two later occasions, the check was presented for pay*404ment, but was returned with tbe same notation. Thereafter, tbe prosecuting attorney of Garland County filed tbe Information against Edwards. An oral motion to dismiss for lack of jurisdiction was made, both during tbe trial, and at tbe end of tbe State’s evidence, on tbe ground that tbe State bad failed to prove that the crime was committed in Garland County. A written motion in arrest of judgment and motion to set aside tbe verdict of tbe jury and dismiss for want of jurisdiction was filed at tbe end of tbe trial. All of these motions were denied.

Appellant’s primary assertion, that tbe Garland County Court was without jurisdiction, is well founded. Section 10, Article II, of the Arkansas State Constitution provides:

> “In all criminal prosecutions tbe accused shall enjoy tbe right to a speedy and public trial by impartial jury of the county in which the crime shall have teen committed; 1 provided that tbe venue may be changed to any other county of tbe judicial district in which tbe indictment is found, upon application of tbe accused, in such manner as now is, or may be, prescribed by laws; . . . ”

"We have held that jurisdiction of statutory offenses is within tbe county where tbe crime is committed, Smith v. State, 169 Ark. 913, 227 S. W. 530. Tbe venue of tbe offense charged herein is not transitory, Cousins v. State, 202 Ark. 500, 151 S. W. 2d 658, and tbe alleged violation was consummated when tbe check was executed in Pulaski County and delivered to tbe payee in Pulaski County. In Shepherd v. State, 221 Ark. 191, 252 S. W. 2d 621, this Court said:

> “Appellant contended that tbe venue was in Clark, bis home county, and not in Hempstead County, where be was charged and tried. It appears undisputed that tbe check in question was executed in Arkadelpbia, but there is conflict in tbe testimony as to whether it was delivered in Clark or Hempstead County. If delivered in Clark County, as appellant contended, then tbe venue would be in Clark, and not Hempstead.”

*405It is therefore clear, in the canse before us, that if Edwards committed a criminal offense, same was committed in Pulaski County, and not in Garland County, and the Circuit Court of the latter county was without jurisdiction.

Reversed.

1

Emphasis supplied.