Spears v. Town of Osyka

Municipalities. Ordinances. Violation. Evidence on appeal. Tlie conviction in tlie circuit court, on appeal from a municipal court, of a person for violating a municipal ordinance, is erroneous where the ordinance was not offered in evidence on the circuit court trial.

From the circuit court of Pike county. Hon. Moyse H. Wilkinson, Judge. Spears, appellant, 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. The opinion of the court states the facts. The district attorney on the trial in the circuit court failed to introduce the ordinance, if there be one, which defendant is charged to have violated. For this failure the court below should have sustained the appellant’s timely motion to exclude all the evidence and direct a verdict for the appellant. Naul v. McOomb Gity, 70 Miss., 699, 12 South., 903. It cannot be denied that if the doctrine set forth in Naul v. McGomb Gity, 70 Miss., 699, 12 South., 903, be law, the judgment in this case must be reversed and the cause remanded. 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 ordinances which would be judicially known to the municipal court. 7 Encyc. Ev., 1025. And all of the authorities agree that a municipal court will take judicial knowledge of the ordinances of the municipality. Accordingly, the circuit court should take judicial knowledge of the ordinance in this case, for it would be absurd to say that the appellate court will not take judicial knowledge of what the law requires the lower court judicially to know.