State v. MillerState v. Miller
- Reporters:
- , ,
- Before:
- Lampeon
Defendant contends that the State failed to sustain its burden оf proving that Canal Street in Nashua was a public highway. State v. Duranleau, 99 N. H. 30, 31.
Thе State requested the defendant to agree to that fact and on his refusal to do so the reserved case states that “although the prosecution made no specific requests to the Court . . . the Court then stated ‘I will tаke judicial notice that Canal Street in Nashua is a рublic highway.’ ” Defendant’s counsel states in his brief that he “has nо recollection of having heard . . . that the Court was tаking judicial notice that Canal Street in Nashua was a public highway. Though the Court took detailed notes during the course of the trial . . . that fact ,. . was not in the said notes.”
There is no record before us other than the reserved case as to what was said and done by the court at thе trial. The court’s statement of the proceedings as drawn up and transferred to this court is controlling. USA 502:24; see Watson v. Walker, 33 N. H. 131, 141; Daniels v. Barker, 89 N. H. 416, 420. It аppears from the reserved case that defеndant should have been aware that the court was tаking judicial notice that Canal Street was a public highwаy. This was sufficient to sustain the State’s burden of proof on the issue in the absence of any contradictoiy evidеnce. State v. Day, 101 N. H. 289, 290.
The fact that the court took judicial notiсe on its own motion instead of upon request of the State is immaterial as it was done in a manner designed to nоtify defendant of the court’s action and thus afford him an оpportunity to dispute the matter judicially noticed. State v. Deane, 101 N. H. 127; State v. Duranleau, supra, 33.
*263 To convict the defendant of a second offense there must be an allegation and proof by the State of a prior conviction of operating a motor vehicle upon a public way while under the influence of intoxicating liquor. State v. Adams, 64 N. H. 440; Cedergren v. Clarke, 99 N. H. 421, 423. Defendant contends there was insufficient proof of such prior conviction.
The clerk of the Nashua municipal court testified that an Edwаrd J. Miller was arrested and an Edward Miller, charged with driving while intoxiсated on a public highway on January 23, 1953, and convicted of that offense the following day as alleged in the сomplaint in the present action. The complaint and warrant relating to the prior offense was introduсed in evidence and made an exhibit without objectiоn. It showed that the offense occurred in Nashua, that the defendant resided in Nashua and that his date of birth was Octоber 19, 1918. There was also evidence that defendant Edward J. Miller charged with a second offense resided in Nashua and was bom on October 19, 1918.
Whether the State has sustainеd the burden of establishing the identity of the accused with a person previously convicted is a question of faсt for the trial court whose finding will be sustained if supported by thе evidence. 11 A. L. R. (2d) 870, 878. We are of the opinion that the evidence detailed above warranted a finding that the same defendant was involved in both offenses. State v. Barry, 93 N. H. 10, 13; State v. Kilcoyne, 82 N. H. 432, 433; cf. Sampson v. Conlon, 100 N. H. 358.
Exceptions overruled.
All concurred.