Bugg v. Town of Houlka

• Decision Date: 10 April 1920
• Docket Number: 21268
• Citation: 84 So. 387,122 Miss. 400
• Court: Mississippi Supreme Court
• Parties: BUGG v. TOWN OF HOULKA

84 So. 387

122 Miss. 400

BUGG v. TOWN OF HOULKA

No. 21268

Supreme Court of Mississippi

April 10, 1920

March 1920

1. MUNICIPAL CORPORATIONS. Identified book of ordinances competent to prove ordinance.

On the trial of a defendant charged with the violation of a municipal ordinance, a book identified by the mayor as the ordinance book in which all ordinances of the municipality are kept and recorded, and there is nothing in the evidence to impeach the document as a public record, is competent testimony to prove the existence of the ordinance in question; and, in the absence of evidence to the contrary, at least, makes a prima-facie case that the ordinance is one duly passed and in existence.

2. CRIMINAL LAW. Witnesses. Deaf-mutes may give evidence by signs or in writing or through an interpreter.

If deaf-mutes have sufficient understanding to comprehend facts about which they undertake to speak, and appreciate the sanctity of an oath, they may give evidence by signs, or through an interpreter, or in writing, and such testimony through an interpreter, is not hearsay.

3 WITNESSES. Evidence of deaf-mute given through an interpreter admissible.

The evidence of a deaf-mute given through an interpreter is admissible if the interpreter understands the signs usually employed by the witness and can well and truly interpret the meaning.

APPEAL from the circuit court of Chickasaw county, HON. CHAS. LEE CRUM, Judge.

Will Bugg was convicted of a violation of an ordinance of the Town of Houlka by unlawfully and feloniously stealing meat, and he appeals. Affirmed.

Affirmed.

J. E. Harrington, for appellant.

1. The first assignment of error is the failure of the town to prove a valid ordinance. No valid ordinance was proved. The mayor was not on the board when the alleged ordinance was passed, nor did he have the minutes of the board showing the passage of the ordinance. Section 3405, Code 1906, Hemingway's Code, section 5935, provides the way that town ordinances shall be passed, and the burden is upon the Town of Houlka in this case to show that they have a valid ordinance, passed as required by this section of the Code. Morris v. Greenwood, 73 Miss. 430, 19 So. 105; Sample v. Verona, 94 Miss. 264, 48 So. 2; Corinth v. Sharp, 107 Miss. 696, 65 So. 188. These ordinances must be proved and the court will not take judicial notice of the same. Naul v. McComb City, 70 Miss. 699, 12 So. 903.

2. We think the evidence in the case is insufficient to support the verdict of the jury, because we think that it fails to show the defendant guilty beyond a reasonable doubt. The only witness that identified the meat alleged to have been stolen, which was found in the possession of the defendant was the witness Will Darden, better known as Dummy, and we have him testifying that Will Bugg was up behind his chimney when in fact he states further on in the testimony that he had not seen him that afternoon, and still further on we have him testifying that Will Bugg was outside waiting for some one to jar the house, and that then he walked into the house, when later it appears that he did not know that Will Bugg was there, and in fact did not see him, showing that he was giving what he surmises to be facts as absolute truth.

Necessarily the defendant was very much limited in his cross-examination of the defendant by reason of the fact that the only way to communicate to him was through an interpreter. We find Darden testifying that his meat had been hung with strings, when the uncontradicted testimony of the witnesses who saw the meat of the defendant say the same had been strung with wire. We think the evidence against the defendant is too weak to sustain a conviction.

3. It was error to allow the interpreter to testify to the answers, when he stated that there were questions and answers that he might not be able to give on cross-examination. The right of cross-examination will not be abridged. Mask v. State, 32 Miss. 405; Walton v. State, 78 Miss. 303, 39 So. 690; See, also, 40 Cyc. 2473, 2475, and 2476.

4. The affidavit was made before the mayor of the Town of New Houlka, and the judgment of the court was rendered, or purported to be rendered by the Mayor of Houlka. The court will take judicial notice that there are two towns in the Chickasaw, one being the Town of Houlka, and the other the Town of New Houlka. As the judgment appealed from was in favor of Houlka, Mississippi, and the judgment rendered in the circuit court was in favor of New Houlka, the judgment of necessity would have been void, and the verdict should have been set aside on the motion for new trial, and the proceeding so amended as to present a case to the jury of which the circuit court had jurisdiction.

J. H. Ford, for appellee.

The general ordinance of the town making all offenses amounting to misdemeanor under the state laws offenses against the town was properly identified by the mayor and read and introduced to the jury. It was in due form and showed on its face that it had been properly passed according to law.

The evidence of Bill Dummy was competent. However, the conviction in this case does not rest solely on his testimony. There was other and ample testimony showing that this helpless deaf and dumb negro was robbed of his meat by this defendant. The meat was properly identified. There was absolutely no dispute between the town and the defendant as to whether Dummy's meat was hung by wire. This is undisputed. It was hung by a wire and then a toesack slipped up over it and tied with a string. This string had been cut and left there at the place from which the meat had been stolen.

The meat taken by the officers with the search warrant in the house of the defendant next day, concealed, was identified as the meat stolen from Dummy. It had been hung by wire. There was green grass in the sack where the officers found the meat and other evidences that this meat had been recently placed there.

If this defendant can escape the sentence of the law simply because one of the main witnesses for the prosecution happens to be deaf and dumb and has to testify through an interpreter, such folks have no protection under the law and they may be deprived of their property by thieves who go unwhipped of justice.

OPINION

STEVENS, J.

Appellant was charged with the violation of an ordinance of the town of New Houlka, the affidavit before the mayor...