35 W. Va. 217 | W. Va. | 1891
L. E. Yelton was convicted before the mayor of the town of Moundsville upon a warrant for selling spirituous liquors without license, in violation of an ordinance of said town, and fined, and upon an appeal to the Circuit Court of Marshall he was again convicted and fined, and he has come to this Court upon a writ of error.
We are asked to reverse the Circuit Court’s judgment, first, on the ground that the ordinance on which the prosecution rests was not given in evidence. It is well settled that courts do not judicially notice the ordinances of a municipal corporation unless directed by charter or statute to do so, but they must be pleaded and proven as facts. 1 Dill. Mun. Corp. § 413. But it is equally well settled that the courts of the municipality will take judicial notice of such ordinances without pleading or proof. Wheeling v. Black, 25 W. Va. 266; 1 Dill. Mun. Corp. § 413. It was
The second ground on which reversal is asked is, that the case was commenced in 1888, and was pending on February 13, 1889, when the town of Moundsville was by an act of the legislature re-chartered under the name of the city of Moundsville, which provided that proceedings then pending in the name of the town of Moundsville should be proceeded with, tried and determined in the name of the city of Mouudsville; and there was no order that the case proceed in the name of the city of Moundsville until after the trial on the evidence and the finding of the defendant guilty. After the judge, who tried the case in place of a jury, had heard the evidence and adjudged the defendant
Another point made against the finding is that there was no evidence of a sale of the aíe; that the witness’s opinion that it was a sale is not evidence of a sale. The witness stated that the defendant kept a saloon. When asked whether he purchased any liquors of defendant, he answered that he got a glass of ale of defendant; that he asked for beer, but defendant said that he had no beer; but would give witness a- glass of ale; that he got the ale, but did not pay for it. When asked why he did not pay for it, he answered : “Well, I don’t know why I didn’t pay for it, unless it was because he was up before the town.” When asked whether he had been in the habit of buying liquor there before or since, he answered: “I had been in the habit of going; yes, sir.” When asked whether he bought any before that time, he auswered: “I may have, but I don’t remember of it.” When asked whether it was a sale or gift of the ale, he auswered: “Well, I regarded it as a sale at the time then.” The witness was evidently unwil
The next point made against the conviction is that the defendant was convicted before the mayor on a sale to one person, and before the circuit court on a sale to another person. There is no need to detail evidence, as to this point. Suffice it to say that it must affirmatively appear that the conviction before the mayor was for one sale, and that before the court for another, and that it does not so appear here. Tor anything appearing, the conviction before the mayor may have been, as it was in the Circuit Court, for a sale to James Burley.
The last point against the judgment is that there was no issue joined. Were this an indictment, certainly a plea would be indispensable. But formal pleadings are not necessary in proceedings before justices. Ho provision of chapter 50, Code 1887, requires such a plea. After providing in section 223 that the warrant shall describe the offence, section 225 provides that, “o.n the appearance of the accused, the justice may proceed to try the ease.” It is not supposed that the charge can be taken for confessed, but that the prosecution must prove its case, though there he no plea of denial. The plea would simply he, “Hot guilty.” And if we see that the town was required to prove its case, as if such plea had been entered, how does the defendant suffer for want of the plea ? In Lexington v. Curtin, 69 Mo. 626,
Aeeirmed.