Schultz v. State.

*

interposes it, or the court, when he stands mute, intervenes for him. Before he can be arraigned and put on his trial the record must disclose an indictment, that it is the finding of a grand jury, organized in the mode prescribed by law, and by them returned into and accepted by the court. When pleaded to, either by the plea of not guilty or by general demurrer because of its insufficiency in law, its genuineness as a record stands admitted. Neither plea would be proper or authorize the rendition of judgment unless interposed to a genuine indictment.

*

"Of the existence of the original indictment, and of its verity, there could be and was no controversy. The substitution was the introduction into the record of matter previously recognized by the court, and admitted by the defendant of matter the verity of which had previously passed beyond controversy. It was the duty of the court to make the record speak the truth; to conform it to the facts as they existed when the defendant was arraigned, pleaded and was put on his trial; thereby no right of the accused was imperiled; he is not subjected to any other jeopardy than that in which he was placed when put on his trial. That the grand jury had made a presentation against him; that it was returned into court; that he had admitted its verity, was already judicially ascertained, and was apparent of record. His clear, constitutional right was to a verdict from the jury impanelled and sworn, which he had accepted as his triers. The loss or destruction of the indictment could not take away this right. The State had a corresponding right that the trial should progress, and a judgment of conviction or acquittal be rendered, finally determining the prosecution. Such rights cannot be impaired or destroyed by the accidental loss or the willful abstraction or destruction of papers pending the trial. The substitution of such papers on satisfactory proof by the court is the only mode of supplying the loss, and lies within the inherent power of the court. Otherwise the progress of a cause could be arrested; the escape of the criminal could be secured by the felonious abstraction, or the accidental loss of the indictment. In Ganaway's case, and in the case provided for by the statute, the loss may be supplied by preferring a new indictment, and that, when it can be pursued, is the more conservative practice, if the statute had not directed it. But when pending the trial the indictment is lost or destroyed, the defendant being in jeopardy, the result is his discharge, or it must rest in the power of the court to supply the loss by substitution.

Temple v. State.

Rights, neither of the State nor of individuals, are lost by the loss of records or the constituents of a record in the custody of courts or public officers. We are of opinion the court had power, without the consent of the accused, or of his counsel, to order the substitution."

If the opinion from which we have so largely copied announces the correct practice, it is as applicable here as in Alabama; and when applied to the case in hand, is authority in point for sustaining the action of the court in substituting the indictment. We think the reasoning of Chief Justice BRICKELL in Bradford's case is sound and unanswerable, and in so far as that case holds that the indictment may be substituted after the defendant has pleaded to it, we fully indorse it. We hold therefore in the case before us that the court did not err in permitting the lost indictment to be substituted.

[Minor matters omitted.]

Judgment affirmed.

TEMPLE V. STATE.

(15 Tex. Ct. App. 304.)

Evidence-judicial notice.

Where every locality of two hundred inhabitants may incorporate itself as a town, the courts will not take judicial notice of such incorporation. (See note, p. 201.)

ONVICTION of manslaughter. The opinion states the case.

CONVICTION

Frank Templeton, for appellant.

J. H. Burts, assistant attorney-general, for State.

WHITE, P. J. [Omitting other matters.] It was objected that parol evidence was admitted to prove that the town of Jacksonville was an incorporated town, and that the deceased was, at the time he was killed, the marshal of said town. In some of the States, Alabama for instance, the rule is that "courts will judicially notice

Temple v. State.

the charter or incorporating act of a municipal corporation without being specially pleaded, not only when it is declared to be a public statute but when it is public and general in its nature or purposes, though there be no express provision to that effect." 1 Dill. Mun. Corp. (3d ed.), § 83. Such is not the rule in this State. With us a district judge is not charged with notice or judicial knowledge that any designated locality is an incorporated town or city. Patterson v. State, 12 Tex. Ct. App. 222.

And the reason for the rule as it obtains with us may be found in provisions of our law with regard to municipal corporations and the mode and manner of their creation. No special legislative act is required to create or legalize such corporations. Any town of two hundred inhabitants or any city may of itself become incorporated by complying with the general laws upon the subject. Rev. Stats,, arts. 340 to 541, inclusive; acts 17 Legislature, pp. 63, 115, 116, 117. After an election has been held under the general laws, and "corporation" is carried, all that is necessary to invest the town with all the rights incident to corporations under the law is that the county judge "shall, within twenty days after the receipt of the returns, make an entry upon the records of the Commissioners' Court that the inhabitants of the town are incorporated," etc. Rev. Stats., arts. 511 to 514. It could scarcely be expected that the courts should judicially know of all such, and when they have been made and placed on the records of the County Commissioners' Court.

[But on another point]

Reversed and remanded.

NOTE BY THE REPORTER.—What will be noticed judicially. See 37 Am. Dec. 84; 10 Abb. N. C. 107, note: Moak's Van S. Pleading, 254; Brown v. Piper, 91 U. S. 37. Courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction. People v. Snyder, 41 N. Y. 397. Of the Constitution of a sister State, so far as the jurisdiction of its courts is shown. Dodge v. Coffin, 15 Kans. 277. For the purpose of construing a Constitution or statute, courts may take judicial notice of every thing which may affect the validity or meaning of such Constitution or statute. City of Topeka v. Gillett, 32 Kans. 431. Of the civil divisions of the State. Chapman v. Wilber, 6 Hill, 475; People v. Breese, 7 Cow. 429; Gooding. v. Morgan, 70 Ill. 275. The result of an election on the question of the removal of a county seat, as a fact connected with the organization of counties, where the question is drawn in issue collaterally. Andrews v. Knox Co., 70 Ill. 65. Boundaries of the several judicial districts in the city of New York. People VOL. XLIX - 26

Temple v. State.

v. Callahan, 60 How. 373. Acts creating municipal corporations. Winooski v. Gokey, 49 Vt. 282; Stier v. City of Oskaloosa, 41 Iowa, 353; Bowie v. City of Kansas, 51 Mo. 454; Prell v. McDonald, 12 Am. Rep. 423 State v. Tosney, 26 Minn. 262. So of the repeal of a section of an act incorporating a town. Belmont v. Morrill, 69 Me. 314. Where a public law creates the mayor and aldermen an incorporated body, no averment or proof is necessary to establish the existence of the corporation State v Mayor, etc., 11 Humph. 217. When it is shown that a town or city has availed itself of the general law au thorizing towns and cities to become incorporated, the courts will take judicial notice of the rights and powers conferred thereby. City of Hopkins v. Kansas, etc., R. Co., 79 Mo. 98.

In Hard v. City of Decorah, 43 Iowa, 313, DAY, J., said: "Where a town or city is incorporated by special act of the legislature, the statute partakes of the nature of a public act, and courts take judicial notice of it. People v. Potter, 35 Cal. 110; Swails v. State, 4 Ind. 516, Vance v. Farmers & Mechan ics' Bank, 1 Black f. 79: State v. Mayor and Aldermen of Murfreesboro, 11 Humph. 217 Case v. Mayor of Mobile, 30 Ala. 538 West v Blake, 4 Blackf. 234; Pull v. McDonald, 7 Kans. 426; Beatty v. Knowles, 4 Peters, 152." Where an action for the violation of a city ordinance is commenced and prosecuted to conviction and sentence before the police judge of such city, and the case is then taken by the defendant on appeal to the District Court, the District Court should, with reference to such case, take judicial notice of the incorporation of such city and of the existence and substance of its ordinances. City of Solomon v. Hughes, 24 Kans. 211 That a certain city is in a certain county. Clayton v. May, 67 Ga. 769; Solyer v. Romanet, 52 Tex. 562; Ala. Gold Life Ins. Co. v. Cobb, 57 Ala. 547. But see Hoffman v. State, 12 Tex. App. 406. Where the articles of a turnpike association state the termini of the road to be within a certain county, the courts of this State will take notice that a road running from one of such termini to the other is located wholly in such county. Steinmetz v. Versailles, etc., Turnpike Co., 57 Ind. 457. Of the population of cities within the State. Matter of Jacobs, 2 N. Y. Crim. Rep. 356. Of the distance between well known cities in the United States, and of the ordinary speed of railway trains between the same. Pearce v. Langfit, 47 Am. Rep. 737. But see Rice v. Montgomery, 4 Biss. 75. Who the executive may be at any time the fact may be called in question. Dewes v. Col. Co,, 32 Tex. 570. All public officers who are commissioned by the governor, and are bound to recognize their official acts. Beggs v. State, 55 Ala 108. Of the civil officers of a county. Thielman v Burg. 73 Ill. 283; Himmelmann v. Hoadley, 44 Cal. 213. That aldermen are public officers. Hibbs v Blair, 2 Harris, 413; Goddard v. Glominger. 5 Watts, 219, Fox v. Com., 81 *Penn. St. 516. That one is an attorney. People v. Nevins, 1 Hill, 154. Of the streets of San Francisco and of their relation to each other and of the direction in which they run. Brady v. Page, 59 Cal. 301. But not of the width of streets. or sidewalks. Porter v. Waring, 69 N. Y. 250. That sewers in the city of

New York are incidents to and generally found in the streets, for the purpose of construing an act regulating. grading, etc, a street to include the power to construct a sewer. Matter of L & W. Orphan Home. 92 N. Y. 116; Abb.

Temple v. State.

Ann. Dig. (1882-3), 155. That the island of Cuba is a dependency of the kingdom of Spain. People v. D'Argencour, 32 Hun, 178.

In Lazier v. Westcott, 26 N. Y. 148, it was held that the "court would take judicial notice that the province of Upper Canada is a foreign country and forms no part of our own, Ennis v. Smith, 14 How. (U. S.) 430, and that it has a government and courts, and that those courts proceed according to the course of the common law. A general law authorizing a particular class of corporations. Methodist, etc., v. Pickett, 19 N. Y. 486. A railroad charter, published by the State among the public and private acts and resolutions of the legislature, as required by statute. Hall v. Brown, 60 N. H. 93; Baltimore, etc., v. Sherman, 30 Gratt. 602.

Courts and juries from their general information may take the initials C. O. D., when affixed to packages sent by common carriers from seller to buyer, to mean that a delivery is to be made upon payment of the charges due the seller for the price, and the carrier for the carriage of the goods. State v. Moffit, 73 Me. 278. The court said: "What can be established by indisputable proof may be acknowledged without proof. What is notorious needs no proof. 1 Whart. Ev. 330; Best Ev. 351." That as a general rule, trains running upon a railroad are run, directed and controlled by the owners of the road. South, etc., R. Co. v. Pilgreen, 62 Ala. 305 ; Evansville, etc., v. Smith, 65 Ind. 92. All the laws of the State; and in doing so, of what the books of published laws contain, of what the enrolled bills contain, of what the legislative journals contain, and indeed of every thing that is allowed to affect the validity or meaning of any law in any respect whatever. Division of Howard Co., 15 Kans. 194: Moody v. State, 48 Ala. 115.

In Paine v. Schenectady Insurance Co., 11 R. I. 411, it was held, that in legal proceedings in Rhode Island, when the judgment of a court of a sister State is impleaded, the Rhode Island court will take judicial cognizance of the laws of such State." DURFEE, C. J., said: The first question is, whether we can take judicial cognizance of the law of New York, or must presume it to be the same as ours until it is shown by averment and proof to be different. The decisions upon this point are conflicting, but we think the decision of the Supreme Court of Pennsylvania, in State of Ohio v. Hinchman, 27 Penn. St. 479, rests upon the better reason. The court there held that when the judgment impleaded is the judgment of a sister State, the court will notice ex officio the law of the State in which it was rendered. The reason given for this is, that in such a case the court acts under the Constitution and laws of the United States, which require that the judgment shall have in every State the same faith and credit which it has in the State where it was originally rendered. In such a case, it was said, the decision of the State court is re-examinable in the Supreme Court of the United States, which will without averment or proof take cognizance of the law of the State in which the record originates. 'It would be very imperfect and discordant administration,' it was further said, 'for the court of original jurisdiction to adopt one rule of decision, while the court of final resort was governed by another; and hence it follows, that in questions of this sort, we should take notice of the local laws of a sister State in the same manner the Supreme Court of the United