Elzey v. State

• Decision Date: 07 February 1916
• Citation: 110 Miss. 502,70 So. 579
• Court: Mississippi Supreme Court
• Parties: ELZEY v. STATE

70 So. 579

110 Miss. 502

ELZEY v. STATE

Supreme Court of Mississippi

February 7, 1916

October 1915

APPEAL from the circuit court of Harrison county. HON. JAS. H NEVILLE, Judge.

Samuel Elzey was convicted in a justice of the peace court for abandoning his wife, and being again convicted on appeal to the circuit court, he again appeals.

The facts are fully stated in the opinion of the court.

Case reversed and remanded.

Mize &amp Mize, for appellant.

The record shows that appellant was married on the 19th day of August, 1914, and that they lived together about eleven or twelve days. This was an appeal from the justice court of J W. Farrish, the justice's record being found at pages 2-10 of the record, the affidavit being found at page 2 showing that the affidavit was made in justice district number 1 of Harrison county, Mississippi; and in the trial of the case in the circuit court the state must prove that the crime took place in the justice district in which the affidavit was made. Monroe v. State 103 Miss. 759; Coon v. State, 13 S. & M. 246; Thompson v. State, 51 Miss. 353; Isabel v. State, 101 Miss. 371.

These cases hold that this question can be raised for the first time in the supreme court, because it is a matter of jurisdiction. However, this was raised in the lower court, and the court's specific attention was called to it by the peremptory instruction requested by appellant and also by the motion for a new trial as shown at page 18 of the record.

The fact that the witness testified that appellant and his wife separated in Biloxi, Mississippi, does not cure this error, nor can the court take judicial knowledge of what justice district the city of Biloxi is in, because the districts of a county are a matter of regulation by the board of Supervisors of each particular county and are regulated by orders placed on the minutes and can be changed at the will of the supervisors, so that a town might be in one district one month and the next month be in a different district, their authority being derived under sections 4111 and 4112 of the Code of 1906.

So we submit that a peremptory instruction should have been given for appellant. It was therefore error for the court to give the instruction for the state found at page 11 of the record and to overrule appellant's motion for a new trial found at page 18 of the record, no jurisdiction being shown to the court.

Ross A. Collins, attorney-general, for the state.

The case originated in the court of the justice of the peace but on the trial of the case in the circuit court appellant contends that jurisdiction of the court below is not shown, the only testimony in regard thereto being on page 24 of the record when a witness was asked the following question: "Where was she living when he left her? Answer: Biloxi, Mississippi." Nothing is shown as to the trial in the court below, nor is it shown that Biloxi is in the first district of said county, therefore the question decisive of this case is, whether or not the court may take judicial notice of the fact that Biloxi is in the first district of said county.

I have diligently sought to relieve the court of this burden by going into an exhaustive study of the authorities in the hope that I might find a case exactly in point, but I confess that I have been unable to do so, though it would seem that this question must necessarily have been often encountered conceding it to be true that courts do not, unless provided by statute, take judicial cognizance of municipal ordinances, does it necessarily follow that an analogous reasoning is to be applied to the establishment of the supervisors districts in a county? The orders entered of record in establishing such districts, while not in the usual sense public statutes relate to matters of general interest and therefore are not strictly of local concern within the purview of the decisions denying judicial notice in matters strictly of local concern. Circuit courts would...