Naul v. McComb City

1. Criminal Laiv. Evidence. Town ordimm.ce. Judicial notice thereof. This court will not take judicial notice of town ordinances. Hence, in a prosecution for the violation of an alleged ordinance, a conviction will not he sustained if the evidence fails to show its existence. 2. Criminal Procedure. Sale of liquors. Evidence of distinct sales. Where it is alleged that accused unlawfully sold spirituous liquors, it is. error to admit evidence of two distinct sales. King v. State, 66 Miss., 602; Bailey v. State, 67 lb., 333.

From the circuit court of Pike county. Hon. W. P. Cassedy, Judge. Appellant, Naul, was convicted before the mayor of McComb City upon an affidavit charging that “■ within the corporate limits of McComb City, in Pike county, Mississippi, and within the jurisdiction of the undersigned, he, Naul, did unlawfully and wilfully sell spirituous liquor without authority of law, and against the ordinances of said town made and provided, and against the peace and dignity of the state of Mississippi.” He appealed to the circuit court, and there made a motion to quash the affidavit, which was overruled. After one witness for the prosecution had testified that he bought whisky from the accused on a certain occasion, another witness was permitted to testify to another and distinct sale. Defendant objected generally to this testimony, and the objection was overruled. He was again convicted, and'sentenced to pay a fine of $100. From this judgment he appeals. The opinion contains a further statement of the facts. 1. It was error to allow evidence of two separate sales. King v. State, 66 Miss., 502; Bailey v. State, 67 lb., 333. 2. There is nothing to show that McComb City has an ordinance against the sale of whisky. If it has, this is a fact to be proven like any other fact. 17 Am. & Eng. Ene. L., 262-Courts do not take cognizance of town ordinances. Ib., 362. • The objection to the evidence of a distinct salé was general. The record does not show the ground'of the objection, nor present the point now argued; hence King v. State, 66 Miss., 502, does not apply. The offense should be treated as one under the laws of the state against retailing, and in this view the conviction was proper.