¶1(after stating the facts). Was there error in the court’s refusal to instruct the jury that, unless the venue was proved beyond a reasonable doubt, the defendant could not be convicted? Upon this question there is diversity of judicial opinion, and it may be that a majority in number of the rulings are that the venue must be proved beyond a reasonable doubt. Bishop, in the first volume of his New Criminal Procedure, section 384, 2, says: “As in other issues, the proof is not required to be delivered in the words of the indictment. Any ordinary evidence suffices which in fact leads the jury to the conclusion, beyond, it is perhaps commonly assumed, a reasonable doubt. But we have some authority for saying that the doctrine of reasonable doubt does not extend to this issue, being only jurisdictional,” — citing Cox v. State, 28 Tex. App. 92; Achterberg v. State, 8 Tex. App. 463; Hoffman v. State, 12 Tex. App. 406, 407. To which we add: Richardson v. Commonwealth, 80 Va. 124; Andrews v. State, 21 Fla. 598; State v. Dent, 6 Rich. (S. C.) 383. We believe that this is the more reasonable view of this question, as the question of venue is a question affecting only the jurisdiction of the court, and does not in fact affect the question of the defendant’s guilt.
¶2The venue must be proved, but the question is whether it must be proved beyond a reasonable doubt, dr by a preponderance of the evidence only. As Bishop says, it is often, and perhaps generally, assumed that it must be proved beyond a reasonable doubt, but we see no reason in this assumption. To hold that it may be proved by a preponderance of the evidence, and that the doctrine of reasonable doubt has no application where the quantum of proof required to show the venue in a criminal case is involved, deprives the defendant of no right, for it is only his guilt that is required to be proved beyond a reasonable doubt. We are of the •opinion that it is sufficient in a criminal prosecution- to prove the venue by a preponderance of evidence only. There was no error in the court’s refusal to give the instruction No. 2 asked by the defendant. The judgment is affirmed.