Opinion
No. 33354.
November 7, 1938.
1. CRIMINAL LAW.
Neither circuit court nor Supreme Court takes judicial notice of municipal ordinance.
2. MUNICIPAL CORPORATIONS.
It is presumed that officer, preferring charges of violation of city ordinance, knows facts, and that his affidavit charges facts constituting such violation, where substance of alleged ordinance is not stated.
3. MUNICIPAL CORPORATIONS.
While affidavit, made on trial de novo in circuit court on appeal from sentence imposed by mayor for violation of city ordinance, may be amended, motion to amend should set forth ordinance in haec verba or show substance thereof and acts intended to be prohibited thereby by sufficient allegations.
4. AUTOMOBILES.
A motion to amend affidavit, charging operation of automobile on city streets at speed exceeding 15 miles per hour in violation of ordinance, on appeal from conviction before mayor, by substituting words "thirty miles per hour" for "fifteen miles per hour," without setting forth ordinance in haec verba or sufficiently alleging substance thereof and acts prohibited thereby, was properly overruled as not showing that amended affidavit would charge offense under ordinance.
APPEAL from the circuit court of Jackson county; HON.W.A. WHITE, Judge.
Ford Ford, of Pascagoula, for appellant.
The court erred in sustaining the demurrer to the amended affidavit.
As to the first ground of demurrer, the affidavit as amended affirmatively alleged that Ordinance No. 20-1923 of the City of Pascagoula was violated by the appellee, and we respectfully submit that this allegation could not have been made stronger, save possibly by setting out the entire ordinance in the affidavit, however, we do not believe that this has ever been required nor will it even be required as the ordinance is a matter of proof on the hearing and need not be set forth in the affidavit. We respectfully submit therefore that this ground of demurrer was not and could not have been properly sustained.
The second ground of demurrer was that it was not a violation of any city ordinance to operate a motor vehicle at a rate of speed in excess of fifteen miles per hour. This too was a matter for proof and not for hearing on demurrer. No proof was offered in the case nor did the case reach the state where proof could be offered, and, of course, the ordinances of the city do not appear in the record.
Under the provisions of Section 5569 of the Code of 1930, as amended by Chapter 309 of the Laws of 1936, a speed within the corporate limits of municipalities in excess of thirty miles per hour is prohibited. Municipalities are authorized to reduce this speed limit from thirty to not in excess of ten. The affidavit specifically charged the appellee with violation of a certain ordinance of the city in that he operated a motor vehicle over certain streets named in the affidavit in excess of fifteen miles per hour. The ordinance was not in the record and we respectfully submit that the lower court erred in holding that there was no ordinance prohibiting the operation of a motor vehicle within the corporate limits of the City of Pascagoula in excess of fifteen miles per hour. Of course, the ordinance will speak for itself when offered in the record, but this case was never allowed to reach that point.
The court erred in declining lieve to amend the affidavit after the demurrer was sustained. After the demurrer was sustained the appellant offered to amend the affidavit so as to charge the car was being operated by the appellee in excess of thirty miles per hour. The court refused to grant lieve to amend. This we submit was error in view of the provisions of Section 1292 of the Mississippi Code of 1930 which authorizes amendments to affidavits and also in view of the provisions of Section 567 of the Code of 1930.
City of Pascagoula v. Seymour, 135 Miss. 502; Wampold v. State, 170 Miss. 732.
On the 13th day of July, 1936, affidavit was made before the clerk of the police court of the city of Pascagoula, charging that "Bruno Rogers, Lawrence Cropp and Jesse Allen, in the city of Pascagoula, on or about the 12 day of July, 1936, did violate Ordinance No. 20-1923 to wit: Speeding and reckless driving, and operating automobile while under the influence of intoxicating liquor, against the peace and dignity of the City of Pascagoula and State of Mississippi. (Signed) C.F. Hudson, V.P. DeJean, Clerk."
The case was tried before the mayor on a plea of not guilty, and the defendant was fined $100; from which sentence Rogers appealed to the Circuit Court, in which court the city moved to amend the affidavit on file by striking therefrom the following: "Speeding and reckless driving, and operating automobile while under the influence of intoxicating liquor, against the peace and dignity," etc., substituting therefor, "By operating a motor vehicle on Pascagoula street and the Beach Boulevard in the said City of Pascagoula, the same being public streets in said city and within the corporate limits thereof at a rate of speed in excess of fifteen miles an hour." The Circuit judge sustained the motion, whereupon the defendant demurred to the affidavit, on the ground that it did not charge violation of law or of any city ordinance; and contended that it is not a violation of any city ordinance to operate any motor vehicle at a rate of speed in excess of fifteen miles per hour. The court sustained the demurrer, whereupon the appellant requested leave to amend the affidavit, as amended, and on file; changing the words, "fifteen miles per hour," to "thirty miles per hour." The motion was overruled by the court, the charge dismissed, and the defendant discharged; from which order this appeal is prosecuted.
Neither the Circuit Court nor this Court takes judicial notice of a municipal ordinance, and no ordinance is embraced in the motion to amend the last affidavit, showing that the city had an ordinance covering the subject sought to be charged in the amended affidavit. It is here argued that the proper time in the trial had not been reached for the introduction of the ordinance, and consequently the motion should have been sustained; that the court erred in not doing so.
When the city instituted the prosecution against the defendant, it charged violation of an ordinance by number, but the substance of the ordinance was not alleged. It is presumed that the officer preferring charges knows the facts, and that the affidavit made by him charges the facts which violate the alleged ordinance. While it is permissible to amend an affidavit made on the trial de novo in the Circuit Court, the motion to amend should either set forth the ordinance in haec verba, or by sufficient allegations to show the substance of the ordinance, and what acts were intended to be prohibited by it. In the present case the motion did not do this, and the court is not required to sustain the motion to amend until it appears to the court that the affidavit, as amended, would charge an offense upon an ordinance enacted by the city.
The city had the opportunity to amend, and failed to set forth the violation of any ordinance in the said charge; and the court is not required, in the absence of a showing by the city as to the ordinance, violation of which it intends to charge, to sustain a motion to amend an affidavit filed.
It follows that the judgment of the court below is affirmed.
Affirmed.