Thomas v. State

Whitfield, C.

The affidavit in this case is as follows:

“Before me, the undersigned,, mayor of Clinton, and ex officio justice of the peace of said county in the town of Clinton, in justice’s district No. 1, said county and state, N. M. McClennon on information makes affidavit that Will Thomas, on or about June 4, 1911, in the county aforesaid, in the justice’s district and in the town of Clinton, did willfully and unlawfully sell vinous, malt, spirituous, and intoxicating liquors, against the ordinances of the town of Clinton in such cases made and provided, against the peace and dignity of the state of Mississippi.

“N. M. McClennon.

“Sworn to and subscribed before me this 4th day of June, 1911. R. R. Hardy, Mayor & Ex. Off. J. P.”

In the mayor’s court the appellant was convicted and sentenced to pay a fine of one hundred dollars and to serve thirty days in the town calaboose. On the mayor’s docket the case was styled “The Town of Clinton v. Will Thomas,” and this was shown in the transcript of the proceedings sent up to the circuit court by the mayor. The case was proceeded with in the circuit court as a case against the town of Clinton until the prosecution rested its case. . Counsel for the defendant then requested that the court decide whether this was a prosecution by the town of Clinton or by the state of Mississippi. The court held that it was a prosecution by the state, and it was so proceeded with to the end. The defendant was convicted in the circuit court, whereupon the defendant filed a motion in arrest of judgment, one of the grounds of which was that the court erred in holding this to he a prosecution of the defendant under the state laws, and the appellant afterwards filed his motion for a new trial.

The ordinances of the town of Clinton were not introduced. This court has several times held that it will not take judicial notice of municipal ordinances. Without the ordinances, therefore, there could have been no conviction in the circuit court, if the prosecution was by the town of Clinton.

It is perfectly evident that the case was proceeded with in the mayor’s court as an offense against the - town of Clinton, and, if so, manifestly the circuit court had no other jurisdiction than to try it in the circuit court as it had been tried in the mayor’s court. We think it is clear from the record that this was a prosecution by the town of Clinton, and the case must necessarily he reversed, for the reasons indicated on the authority of Washington v. State, 93 Miss. 270, 46 South. 539.

But we do not concur in the conclusion reached in the case of Washington v. State, as to the judgment which should he rendered here. We think the proper disposition of the case is to reverse the judgment and remand the case, to be proceeded with as a prosecution by the town of Clinton. Reversed and remanded.

Per Curiam.

The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment is reversed, and the cause remanded, and the prisoner will he held to answer as for an offense against the town of Clinton; the circuit court amending the affidavit accordingly.