Thomas v. State
| Decision Date | 12 February 1912 |
| Docket Number | 15,570 |
| Citation | 57 So. 364,101 Miss. 74 |
| Court | Mississippi Supreme Court |
| Parties | WILL THOMAS v. STATE |
APPEAL from the circuit court of Hinds county, HON.W. A. HENRY Judge.
Will Thomas was convicted of the unlawful sale of liquor in the town of Clinton and appeals.
The facts are fully stated in the opinion of the court.
Judgment reversed and case remanded.
Lamar F. Easterling, for appellant.
The question to be determined is, was the defendant being prosecuted for a violation of the ordinance of the town of Clinton or for an offense against the state of Mississippi? If this was a prosecution by the town of Clinton for an alleged violation of the ordinances of the town of Clinton then it was error for the court to overrule the motion in arrest of judgment for there could be no legal conviction for the violation of the town ordinance without proof of the ordinance under which the prosecution was taken. It has been held repeatedly by this court that the court will not take judicial notice of municipal ordinances. Naul v. McComb City, 70 Miss. 699, 12 So. 903; Spears v Osyka, 90 Miss. 790; Allen v. City of Jackson, 53 So. 498.
If it should be held that the affidavit in question charged a violation of the laws of the state of Mississippi and was a state case, then appellant was not tried for such offense in the mayor's court and the circuit court had no jurisdiction of the case at all, but should have promptly dismissed the case. The circuit court had only such jurisdiction as it acquired on appeal and no other.
Looking at the affidavit in question it will be seen that it is impossible to tell from the affidavit whether this was a prosecution for violation of the state laws or for ordinance of the town of Clinton and on the authority of Washington v. State, reported in 93 Miss. 270, it was the duty of the court to have dismissed this proceeding and discharged appellant because the record failed to show what offense was charged and against what power.
Frank Johnston, assistant attorney-general, for appellee.
The style of the case was "Town of Clinton v. Will Thomas." An appeal was taken to the circuit court of Hinds county at Jackson. There the case was proceeded with as a state case.
On the trial in the circuit court, the ordinances of the town of Clinton were not introduced in evidence. It appears to have been tried under the general state law. There was a conviction on the appeal in the circuit court.
A motion in arrest of judgment presents the questions for the decision on the present appeal. The mayor of Clinton testified that he tried the case, as mayor, under the ordinances of the town.
The questions for decision here are:
(1) Could there have been a conviction, treating the case as an appeal from the judgment of the mayor's court, without any evidence in the circuit court of the ordinances of the town?
(2) Can the court judicially take notice of municipal ordinances?
(3) Did the circuit court have the authority on the appeal from the mayor's court to convert the case into a prosecution by the state and try the accused for a violation of the general law of the state?
(4) On the failure to introduce the ordinances of the town of Clinton on the trial de novo in the circuit court, could there have been a valid conviction of the accused?
The affidavit in this case is as follows:
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