Smith v. Town of Oxford, 45 So. 365

Smith v. Town of Oxford

45 So. 365 | Miss. | 1907

Calhoon, J.,

delivered the opinion of the court.

There is no stenographic report of the evidence taken on the trial, and therefore we are confined to the record itself. The appellant, Smith, was tried,in the mayor’s court; that court sitting either as a mayor’s court or as the court of the mayor as ex-officio justice of the peace. This is the point of one of the controversies. There appears in the record of the appeal from the lower court to the circuit court, as being among the papers, two distinct and separate affidavits, the. first one charging the sale of intoxicating liquors within five miles of the University of Mississippi, which would pertain to ex-officio proceedings. The second affidavit charges the unlawful sale to have been made “ at his place of business in the town of Oxford, Mississippi, against the ordinance of the town and the peace and dignity of the state of Mississippi.”

The corporation of Oxford made a motion which is disposed *655of in these words by the circuit 'court: “ On motion by the plaintiff that the officer, in sending up the record in this case, had by mistake attached to the papers sent up the wrong affidavit, plaintiff is allowed to withdraw the affidavit attached and file the affidavit alleged to be the correct one, and the cause is continued until next term of court.” No testimony appears pro or con on this motion, and it must be presumed that the court acted intelligently. It also appears that there was an order of the court allowing the first affidavit charging that the offense was committed within five miles of the University of Mississippi, to be withdrawn; and it further appears by an order of the court that the second affidavit was filed pursuant to order- allowing the same. The appeal from the court of original jurisdiction to the circuit court, and the appeal from that court to this, distinctly shows that they were from a judgment rendered in favor of the corporation of Oxford. It is plain that the appellant was tried in the court of original jurisdiction and in the circuit court on only one of the affidavits, and that was for the sale of the liquor “ at his place of business in the town of Oxford, Mississippi, against the ordinance,” etc. His appeal to the circuit court was from that, and the bond for appeal recites that he was duly convicted before the mayor of Oxford. Undoubtedly this was the affidavit on which he was tried in both courts.

To the objection here for the first time that this affidavit did not lay any venue, we have only to refer to Code 1906, § 1428, and Brame & Alexander’s Dig., p. 296, cl. 5. The statement of the venue at most was simply imperfect, and the affidavit is headed by the officer, “ The State of Mississippi, Lafayette County,” and the statute and all the decisions bearing on the question in Mississippi prevent reversal, unless the objection to the statement of venue was taken in the court below, when it could have been promptly amended.

The motion for a new trial is based on two grounds only: Hirst, because the affidavit charged no offense; and, second, *656because of the discovery since the trial that the ordinance relied on was illegal. This motion for a new trial was filed on March 21, 1907, while the court was in session, and on the same day the court overruled that motion. Subsequently, on October 7, 1907, nearly six months afterwards, a bill of exception was signed by the presiding judge which recites that a motion to set aside the verdict and for a new trial was entered, and that upon said motion the corporation ordinance book was introduced, which recites an ordinance of the town of Oxford, said to be void, denouncing a penalty against those who unlawfully sold intoxicating liquors in that town. It nowhere appears whether or not that particular ordinance or some other ordinance was introduced on the trial itself. -Another and valid one may have been introduced on the trial, or there may have been a waiver. We do not know what happened, and, if we were at liberty to take this bill of exceptions, signed six months after the trial, into consideration at all, we cannot say that everything was not regular on the main trial.

The judgment appealed from is affirmed.