Puyper v. City of Picayune

Cook, J.,

delivered the opinion of the court.

The appellant was convicted in the police court of the city of Picayune of having in his possession more than one quart of intoxicating liquor. He appealed to the circuit court, and was again convicted, and from this judgment he has prosecuted this appeal.

At the trial in the circuit court the clerk of the city of Picayune was offered as a witness to identify an ordinance of the city making offenses under the penal laws of the state, amounting to a misdemeanor, offenses against the city of Picayune, when committed within the corporate limits of said city. In response to a request so to do the witness read to the jury the caption of such an ordinance, and counsel for the city announced that he desired to introduce the entire ordinance. At the conclusion of the testimony for the city a motion was made for a peremptory instruction to find the defendant not guilty, for the reason that “the city of Picayune has failed to prove any ordinance, except by reading the caption thereof, and it is not shown what the ordinance itself coiitains.” This motion was overruled.

The original transcript of the record as filed in this court contains the caption of a purported ordinance, but the ordinance itself nowhere appears in the record,-and it does not appear that the ordinance, or a copy thereof, was in any way identified by the stenographer, or made an exhibit to the testimony of the witness. After the assignments of error and the appellant’s original brief were filed in this court, a motion was presented to the circuit judge seeking to have an order made directing the circuit clerk to send up “an original paper, or a certified copy of same, to-wit, city Ordinance No. 84, in and for the city of Picayune, which was introduced in the trial of this cause, and which was omitted from the transcript of the record made by the stenographer in' said cause. ” It nowhere appears that any notice of this motion was given to the appellant or his counsel, but the circuit judge thereupon signed an order directing the circuit clerk to forward to the clerk of this court the original ordinance or a certified copy thereof, and the circuit clerk has transmitted to this court the original motion presented to the circuit judge, the original order signed by the judge, and a copy of an ordinance which purports to have been certified by the clerk of the city of Picayune. The circuit clerk certifies that the order of the circuit judge which he forwarded to this court' was the original order signed by the judge, but he does not certify that the paper attached, which purports to be a copy of an ordinance of the city of Picayune, was introduced in evidence, or that it is a copy of any ordinance of the city certified to by the proper municipal authority.

The paper which has been filed with the record in this cause, and which purports to be a copy of the municipal ordinance, does not appear to have been identified or marked as an exhibit by the stenographer, as required by section 4790, Code of 1906 (section 3143, Hemingway’s Code), and the clerk of the circuit court has not certified that it is a copy of any paper or document that was introduced in evidence and made a part of the record, and, since we cannot take judicial notice of municipal ordinances, and this paper has not been properly made a part of the record, it cannot be considered.

The judgment of the court below will therefore be reversed and the cause remanded.

Reversed and remanded.