Naul v. McComb City

70 Miss. 699 | Miss. | 1893

Cooper, J.,

delivered the opinion of the court.

Although this case appears on the docket of this court, and did so appear on that of the court below; as a prosecution for the violation of a state law, the affidavit, which is the foundation of the proceeding, clearly shows it to be a prosecution for the violation of an ordinance of McComb City. We do not know, and cannot be informed, except by the record, that there is an ordinance of said town against the act charged, for we do not take judicial notice of town ordinances. There is nothing of record to show the existence of such ordinance, and, so far as is disclosed, the appellant is under sentence for an act not prohibited by any other law than that of the state, for a violation of which he is not prosecuted.

But, if there is an ordinance of the town against selling liquor, the conviction could, in no event, be maintained, because of error in the court in admitting evidence of two distinct sales. In King v. State, 66 Miss., 502, this question was fully considered and decided, and that case was followed in Bailey v. State, 67 Miss., 333. We now follow it again, with the hope that by patience and persistence we shall eventually establish the rule it announces.

Reversed.