Opinion
No. 31332.
June 11, 1934.
1. CRIMINAL LAW.
Rebuttable presumption exists that judgment of court of general jurisdiction was supported by evidence when rendered.
2. MUNICIPAL CORPORATIONS.
On appeal on record containing no transcript of evidence in trial for violation of ordinance, presumption exists that ordinance was introduced in evidence in order to sustain judgment.
APPEAL from Circuit Court of Holmes County.
P.P. Lindholm, of Lexington, for appellant.
In this state the supreme court does not take judicial notice of municipal ordinances and they must be introduced in evidence or their existence proven.
Kyle v. Calhoun City, 123 Miss. 542; Naul v. McComb City, 70 Miss. 699.
There are two ways in which to prove the existence of any municipal ordinance in the circuit court of Mississippi, to-wit: (1) a copy of such ordinance certified to by the clerk of the municipality, or (2) the ordinance book in which said ordinance is entered may be introduced in evidence. In either event the ordinance is introduced as an exhibit.
Section 2547, Mississippi Code of 1930.
That part of the record on appeal made up by the circuit clerk, and not the stenographer's transcript, must reflect that a copy of the city ordinance was properly introduced as an exhibit in the circuit court trial since under the laws of this state at the end of every trial the court reporter delivers to the circuit clerk all exhibits, depositions, etc., promptly, and if an appeal is taken the circuit clerk has the duty to correctly transcribe such exhibits, depositions, etc., and send up as his part of record on appeal.
Chapter 16, Laws of 1930; Section 722, Code of 1930.
Johnson White, of Lexington, for appellee.
Where the clerk of a court has omitted a part of the record, and the same is later transmitted by him in response to certiorari, such part so transmitted and properly certified will be accepted as, and made a supplement to, the original record.
Brown v. Sutton, 158 Miss. 78, 121 So. 835; Wilkinson v. Love, 149 Miss. 517, 111 So. 457.
The appellant cannot be heard to complain of the absence from the record of the general ordinance in question, for it is his fault that a transcript of the stenographer's notes is not a part of the record, and only by means of a transcript of her notes could the exhibit of the certified copy of the ordinance be properly identified.
Wilkinson v. Love, 149 Miss. 517, 111 So. 457.
Appellant was convicted of a violation of a city ordinance. No notice was given the court reporter, and the record therefore contains no transcript of the evidence or of the proceedings during the trial. There is nothing in the clerk's transcript to show that the ordinance of the city was introduced in evidence, and, since courts do not take judicial notice of municipal ordinances, it is contended that the record is for that reason insufficient to sustain the judgment.
More frequently than otherwise in trials for violations of municipal ordinances the parties agree during the trial that the municipality has a valid ordinance covering the offense charged, as was the case, for instance, in Lee v. Oxford, 134 Miss. 647, 99 So. 509, which agreement is usually dictated to the court reporter. We must assume that this was done, and would appear in the court reporter's transcript had the transcript been, on notice, made a part of the record. The presumption is that the judgments of courts of general jurisdiction are valid and were supported at the time of their rendition by all the evidence and other essentials requisite to that validity, and that presumption stands until the contrary is made affirmatively to appear. When matters which transpired in the trial are missing from the appellate record, it will be presumed that the missing portion was of such character as to supply the material necessary to support the judgment or decree. Hume v. Inglis, 154 Miss. 481, 487, 122 So. 535.
Affirmed.