Conrad v. State

70 Miss. 733 | Miss. | 1893

Cooper, J.,

delivered the opinion of the court.

The court properly instructed the jury that the act approved March 11, 1886, and commonly known as the local option law, was operative in Yazoo county at the daté of the *738alleged illegal sale of intoxicating liquors by the defendant. If, since the code of 1892 became operative (by § 1621 of which the courts are required to take judicial notice of the result of local option laws), it is admissible for one indicted to traverse the allegation that the act is in effect in the locality, the evidence introduced in the court below was conclusive.

By § 4 of the act, it is made the duty of the commissioners of election to canvass the returns and declare the result of elections held under the provisions of the law, and copies of their report are made evidence in all courts of this state. In McDonald v. State, 68 Miss., 728, we held this return of the commissioners to be the only evidence admissible of the result of such elections. The rule which forbids an investigation, on a collateral inquiry, into the sufficiency of the evidence upon which the commissioners made their report, has no exception from the mere fact that the collateral attack is made in a criminal prosecution.

The sale of intoxicating liquor by the defendant was, in its nature, an offense, irrespective of the question whether the election was in favor of or against the operation of the law. The inquiry as to his guilt or innocence was not involved in oi’ determinable in any degree by its decision. Paine on Elections, § 951.

In cases of contested elections, where the right of one claiming title to an office under a certificate of the returning officers, is directly involved, irregularities upon the face of the certificate may impair or destroy its value as prima facie evidence. McCrary on Elections, § 279. But the return cannot be attacked collaterally. Ib., § 281.

It is conceded that the sentence imposed, as it appears in the record (probably by clerical error), is greater than the maximum prescribed by law. Eor this error, the judgment must be reversed. The verdict, however, will not be disturbed, but the appellant will be held to appear at the next term of the circuit court of Yazoo county for sentence.