Howard v. Town of Newton

• Citation: 108 Miss. 548,67 So. 49
• Court: Mississippi Supreme Court
• Decision Date: 25 January 1915
• Parties: HOWARD v. TOWN OF NEWTON

67 So. 49

108 Miss. 548

HOWARD v. TOWN OF NEWTON

Supreme Court of Mississippi

January 25, 1915

October 1914

APPEAL from the circuit court of Newton county. HON. C. L. DOBBS Judge.

Anse Howard was convicted of petty larceny and appeals.

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

Affirmed.

W. I Munn, for appellant.

Jesse Jones, and Fulton Thompson, for appellee.

OPINION

SMITH, C. J.

Appellant was convicted in the court of the mayor of the town of Newton of the crime of petit larceny as defined by an ordinance of that town, and was again convicted on appeal to the circuit court.

The marshal of the town of Newton was introduced as a witness and identified the ordinance book of that town, whereupon the ordinance in question contained therein was introduced in evidence. An objection to this evidence, and the ruling of the court thereon, which is here assigned for error, appears in the record following its introduction in the following language:

"Objection by counsel for defendant. Objection overruled by the court, and the defendant then and there excepted to the ruling of the court."

Conceding for the sake of the argument that this ordinance was not properly proven, the ruling of the court below on the objection thereto cannot be availed of here, for the reason that it was general when it should have been specific. In the brief of counsel for appellant it appears that the ground of the objection to this evidence, here made specific for the first time, is that the ordinance was not proven in the proper manner, the contention being, as we understand the brief, that the ordinance should have been proven either by a certified copy thereof, or the book containing it should have been identified by the clerk of the city, its legal custodian. It will be observed that this objection goes not to the admissibility of the ultimate facts sought to be proven, that is, the ordinance itself, but simply to the method by which the ordinance was proven. Had the objection to the method of proving the ordinance been pointed out in the court below, it may be that counsel for appellee could have met it by making the proper proof; and the rule was long since settled in this state that:

"When an objection is made to evidence which in its nature is such as may be obviated, it must be specific, so as to allow the party offering an opportunity to supply its place if the objection is...