Argued September 2, 1959.
Decided October 6, 1959.
1. In a transfer by a municipal court of questions of law (RSA 502:24) the statement of the proceedings as drawn up and transferred to the Supreme Court is controlling.
2. Where the justice of the Nashua municipal court, in a complaint for operating a motor vehicle on a public highway while under the influence of intoxicating liquor, took judicial notice of the fact that Canal Street in that city was a public way and it appeared from the record that respondent should have been aware that the justice was doing so, the State's burden of proof on that issue was sustained in the absence of contradictory evidence.
3. The fact that the court took judicial notice thereof on its own motion was immaterial where the manner in which it was done was designed to notify the respondent of its action and afford an opportunity to the respondent to offer contradictory evidence.
4. In a complaint for operating a motor vehicle on a public highway while under the influence of intoxicating liquor, second offense, the evidence warranted a finding that the respondent was the same person convicted of a prior offense.
TRANSFER, to Supreme Court of questions of law from the Nashua municipal court under RSA 502:24.
The complaint and warrant charges that the defendant operated a motor vehicle upon a public highway in Nashua known as Canal Street while under the influence of intoxicating liquor. RSA 262:19 (supp.); Laws 1955, c. 282, s. 1.
The complaint states that this is a second offense and that the defendant was previously convicted of a similar offense in Nashua municipal court on January 24, 1953.
The pertinent parts of the reserved case include the following:
"The Complaint and Warrant in this case . . . indicates that the d.o.b. (date of birth) of the defendant, Edward J. Miller, is 10-19-18.
"In the course of the trial . . . the State . . . requested counsel for the defendant to agree that Canal Street was a `public highway'.
"Counsel for the defendant refused to agree.
"Although the prosecution made no specific requests to the Court to take judicial notice that Canal Street was a public highway, the Court then stated `I will take judicial notice that Canal Street in Nashua is a public highway'
"Edward J. Miller was identified by the arresting officer as being the defendant in this case. In the course of the trial evidence was introduced on the witness stand by J. Russell Widener, Esq., Clerk of the Nashua Municipal Court that an Edward J. Miller was arrested and an Edward Miller was charged with driving while intoxicated on a public highway on the 23rd day of January, 1953, [State Exhibit #1]
"The said Complaint and Warrant, State Exhibit #1, indicated that the d.o.b. (date of birth) of the Edward Miller named in said Complaint was 10-19-18.
"At the close of the State's case . . . the defendant moved that Edward J. Miller be discharged on the following . . . grounds:
"`The defendant in Court today was not shown to be the same person who was convicted on January 24th, 1953.
"`That the State failed to prove a public highway.'
"The Court denied the defendant's motion and the defendant's exception was noted.
"The defendant rested without introducing any evidence . . . .
"All questions of law raised by the foregoing are reserved and transferred" by McLauglin special justice of the Nashua municipal court.
Louis C. Wyman, Attorney General, Irma A. Matthews, Law Assistant and Conrad Danais, county attorney (Irma A. Matthews orally), for the State.
Nicholas Pantelas (by brief and orally), for the defendant.
Defendant contends that the State failed to sustain its burden of proving that Canal Street in Nashua was a public highway. State v. Duranleau, 99 N.H. 30, 31.
The State requested the defendant to agree to, that fact and on his refusal to do so the reserved case states that "although the prosecution made no specific requests to the Court . . . the Court then stated `I will take judicial notice that Canal Street in Nashua is a public highway.'" Defendant's counsel states in his brief that he "has no recollection of having heard . . . that the Court was taking judicial notice that Canal Street in Nashua was a public highway. Though the Court took detailed notes during the course of the trial . . . that fact . . . was not in the said notes."
There is no record before us other than the reserved case as to what was said and done by the court at the trial. The court's statement of the proceedings as drawn up and transferred to this court is controlling. RSA 502:24; see Watson v. Walker, 33 N.H. 131, 141; Daniels v. Barker, 89 N.H. 416, 420. It appears from the reserved case that defendant should have been aware that the court was taking judicial notice that Canal Street was a public highway. This was sufficient to sustain the State's burden of proof on the issue in the absence of any contradictory evidence. State v. Day, 101 N.H. 289, 290.
The fact that the court took judicial notice on its own motion instead of upon request of the State is immaterial as it was done in manner designed to notify defendant of the court's action and thus afford him an opportunity to dispute the matter judicially noticed. State v. Deane, 101 N.H. 127; State v. Duranleau, supra, 33.
To convict the defendant of a second offense there must be an allegation and proof by the State of a prior conviction of operating a motor vehicle upon a public way while under the influence of intoxicating liquor. State v. Adams, 64 N.H. 440; Cedergren v. Clarke, 99 N.H. 421, 423. Defendant contends there was insufficient proof of such prior conviction.
The clerk of the Nashua municipal court testified that an Edward J. Miller was arrested and an Edward Miller, charged with driving while intoxicated on a public highway on January 23, 1953, and convicted of that offense the following day as alleged in the complaint in the present action. The complaint and warrant relating to the prior offense was introduced in evidence and made an exhibit without objection. It showed that the offense occurred in Nashua, that the defendant resided in Nashua and that his date of birth was October 19, 1918. There was also evidence that defendant Edward J. Miller charged with a second offense resided in Nashua and was born on October 19, 1918.
Whether the State has sustained the burden of establishing the identity of the accused with a person previously convicted is a question of fact for the trial court whose finding will be sustained if supported by the evidence. 11 A.L.R. (2d) 870, 878. We are of the opinion that the evidence detailed above warranted a finding that the same defendant was involved in both offenses. State v. Barry, 93 N.H. 10, 13; State v. Kilcoyne, 82 N.H. 432, 433; cf. Sampson v. Conlon, 100 N.H. 358.