Kyle v. Town of Calhoun City

Mississippi Supreme Court

Kyle v. Town of Calhoun City

86 So. 340, 123 Miss. 542

CourtMississippi Supreme Court

DecidedOctober 15, 1920

DocketNo. 21343

StatusPublished

Cited by2 cases

This text of 86 So. 340 (Kyle v. Town of Calhoun City) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kyle v. Town of Calhoun City, 86 So. 340, 123 Miss. 542 (Mich. 1920).

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Opinion

Sykes, J.,

delivered the opinion of the court.

An affidavit for wagering or betting was made out against'the appellant before the mayor of the town of Calhoun City for the violation of a town ordinance. The appellant was convicted in the mayor’s court, and appealed to the circuit court, in which court he was also convicted, and from which judgment this appeal is prosecuted. -

The material testimony in the case indicates that appellant and the party with whom the alleged wager or bet was made met in a barber shop, and thereafter fifty dollars was put in an envelope and turned over to some employee of the bank by the other party to the transaction. The appellant was not present when the envelope was delivered to the bank. That this alleged wager took place in the town of Calhoun City is not directly shown by the testimony. It nowhere appears therein that this barber shop is within the corporate limits of this town, and it only inferentially appears that the bank is in Calhoun City. The town introduced the mayor, and identified by him the ordinance book of the town, but failed to introduce ifi testimony the book, or any ordinance making it a municipal offense to wager or bet. .

This court does not take judicial notice of municipal ordinances, and it devolved upon the town to introduce in testimony the ordinance claimed to be violated. Naul v. McComb City, 70 Miss. 699, 12 So. 903; Spears v. Town, of Osyka, 92 Miss. 790, 46 So. 558. The town should have proven the venue, viz., that the alleged offense was committed within the limits of the municipality. The venue in [546]*546a criminal case is jurisdictional. Monroe v. State, 103 Miss. 759, 60 So. 773.

At the conclusion of the testimony in the case appellant, defendant in the lower court, was refused a peremptory instruction. Under the testimony in the case this instruction should have been granted.

The judgment of the lower court is reversed, and the cause remanded.

Reversed and remanded.

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Sykes, J.,

delivered the opinion of the court.

An affidavit for wagering or betting was made out against'the appellant before the mayor of the town of Calhoun City for the violation of a town ordinance. The appellant was convicted in the mayor’s court, and appealed to the circuit court, in which court he was also convicted, and from which judgment this appeal is prosecuted. -

The material testimony in the case indicates that appellant and the party with whom the alleged wager or bet was made met in a barber shop, and thereafter fifty dollars was put in an envelope and turned over to some employee of the bank by the other party to the transaction. The appellant was not present when the envelope was delivered to the bank. That this alleged wager took place in the town of Calhoun City is not directly shown by the testimony. It nowhere appears therein that this barber shop is within the corporate limits of this town, and it only inferentially appears that the bank is in Calhoun City. The town introduced the mayor, and identified by him the ordinance book of the town, but failed to introduce ifi testimony the book, or any ordinance making it a municipal offense to wager or bet. .

This court does not take judicial notice of municipal ordinances, and it devolved upon the town to introduce in testimony the ordinance claimed to be violated. Naul v. McComb City, 70 Miss. 699, 12 So. 903; Spears v. Town, of Osyka, 92 Miss. 790, 46 So. 558. The town should have proven the venue, viz., that the alleged offense was committed within the limits of the municipality. The venue in [546]*546a criminal case is jurisdictional. Monroe v. State, 103 Miss. 759, 60 So. 773.

At the conclusion of the testimony in the case appellant, defendant in the lower court, was refused a peremptory instruction. Under the testimony in the case this instruction should have been granted.

The judgment of the lower court is reversed, and the cause remanded.

Reversed and remanded.

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Bluebook (online)

86 So. 340, 123 Miss. 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kyle-v-town-of-calhoun-city-miss-1920.

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