Kyle v. Town of Calhoun City

• Decision Date: 08 November 1920
• Docket Number: 21343
• Citation: 123 Miss. 542,86 So. 340
• Court: Mississippi Supreme Court
• Parties: KYLE v. TOWN OF CALHOUN CITY

86 So. 340

123 Miss. 542

KYLE v. TOWN OF CALHOUN CITY

No. 21343

Supreme Court of Mississippi

November 8, 1920

October 1920

1. CRIMINAL LAW. Municipal corporations. Supreme Court does not take judicial notice of ordinances.

This court does not take judicial notice of municipal ordinances. In a prosecution for the violation of an alleged municipal ordinance, a conviction thereunder will not be sustained, if the ordinance is not introduced in testimony.

2. CRIMINAL LAW. Failure to prove venue reviewable, although not raised below.

The failure of the state in a criminal case to prove the venue is a jurisdictional error, and may be reviewed in this court although not raised in the court below.

HON. C LEE CRUM, Judge.

APPEAL from circuit court of Calhoun county, HON. C. LEE CRUM Judge.

B. F. Kyle was convicted in the mayor's court of the town of Calhoun City for the violation of an ordinance by wagering or betting, and from a conviction on appeal to the circuit court, Kyle appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Mayes & Potter, for appellant.

It is well settled in this state that our courts other than municipal courts do not take judicial notice of town ordinances. In the case of Naul v. State, 12 So. 903, this court said in reversing a case appealed from the municipal court of McComb City, to the circuit court, where no ordinances was offered in evidence that: "Although this cause appears on the docket of this court and did so appear on that of the court below as a prosecution for the violation of a state law, the affidavit which is the foundation of the proceeding clearly shows it to be a prosecution for the violation of an ordinance of the Town of McComb City. We do not know, and cannot be informed, except by the record, that there is an ordinance of said town against the act charged, for we do not take judicial notice of town ordinances. There is nothing in the record to show the existence of such ordinance, and so far as is disclosed, the appellant is under sentence for an act not prohibited by any other law than that of the state for a violation of which he is not prosecuted."

In the case of Spears v. The Town of Osyka, 46 So. 558, 92 Miss. 790, Spears was tried and convicted in the municipal court of Osyka for violating an ordinance of the town prohibiting the use of profane language on the streets; he appealed to the circuit court and was again convicted and appealed to the supreme court. In deciding this case the court said:

"This appeal is prosecuted from a conviction in the mayor's court in the town of Osyka of the violation of a town ordinance. An appeal was taken to the circuit court and on the trial there the ordinance under which the prosecution is conducted was not introduced in evidence. When the testimony was in, counsel for appellant, he moved to exclude the testimony because of the failure on the part of the prosecution to introduce in evidence the ordinance. This motion was overruled by the court, and this is assigned as error. The question was settled in the case of Naul v. McComb City, 70 Miss. 699, 12 So. 903, and is reaffirmed.

It will be noted that the point was made in the case by the assistant attorney-general (refer brief on page 791 of 92 Mississippi), that in a number of states, Kentucky, Kansas, West Virginia, Oregon and Iowa, and perhaps others, upon appeal from a municipal court the appellate court is bound to take judicial cognizance of the ordinance which would be judicially known to the municipal court, and such is the holding of the courts in those states, but it will be noted that this point, though raised in that case and properly raised, was held not to be well taken, but the general rule was followed.

In Volume 17 Encyclopedia of Law, page 937, the general rule is laid down as follows: "The general rule is that state courts of general jurisdiction will not take judicial notice of municipal ordinances. A municipal ordinance is not regarded in the light of a public law, of which the courts should take judicial notice but the party relying thereupon must...