Fay v. City of Ft. Collins

• Decision Date: 03 June 1907
• Citation: 90 P. 512,40 Colo. 262
• Parties: FAY v. CITY OF FT. COLLINS.
• Court: Colorado Supreme Court

90 P. 512

40 Colo. 262

FAY v. CITY OF FT. COLLINS.

Supreme Court of Colorado

June 3, 1907

Appeal from Larimer County Court; J. Mack Mills, Judge.

Charles Fay was convicted of willfully and unlawfully keeping and maintaining a disorderly house, in violation of an ordinance of the city of Ft. Collins, and he appeals. Reversed.

Garbutt & Garbutt, Fred W. Stow, and Frank J. Annis, for appellant.

Cornelius Ferris, Jr., for appellee.

MAXWELL J.

Upon an appeal from a judgment rendered by a police magistrate's court to the county court, in a trial before a jury appellant was convicted and fined for the violation of a city ordinance of the city of Ft. Collins.

The complaint alleged that appellant did willfully and unlawfully keep and maintain a certain disorderly house, contrary to the provisions of sections 1 and 2 of Ordinance No 17, 1889, entitled: 'Relating to disorderly houses,' etc. The court instructed the jury that 'it is in violation of the ordinance of the city of Ft. Collins for any person or persons either directly or indirectly to sell or give away intoxicating malt, vinous, mixed, fermented, or spirituous liquors within the corporate limits of the city of Ft. Collins, or within one mile of the outer boundaries thereof.' The ordinance upon which the foregoing instruction seems to have been based was not introduced in evidence. It has been held by this court that courts will not take judicial notice of municipal ordinances; that they must be pleaded and proven. Greeley v. Hamman, 12 Colo. 96, 20 P 1; Drug Co. v. People (Colo. Sup.) 89 P. 778. There is not a word of evidence in the record to the effect, nor was there any attempt made to prove, that appellant had been guilty of a violation of the ordinance embodied in the above instruction, or that any one else had violated the ordinance set forth in the instruction in the house or place maintained by defendant. It has been repeatedly held by the appellate courts of this state that it is error to give an instruction however correct it may be as an abstract proposition of law unless it bears upon and is connected with the issue in the case and is predicated upon competent evidence submitted to the jury, to which evidence the jury may apply it. Such instructions tend to mislead the minds of the jury from the issue involved. Burlington, etc., Co. v. Liehe, 17 Colo. 280, 29 P. 175; Robinson v. D. & R. G. Co., 24 Colo. 98, 49 P. 37; Walsh v....