[1978] 19. Public and Private Acts, Proclamations, and Orders.51 In some states a statute requires judicial notice to be taken of the public and private acts of the legislative, executive and judicial departments of the state and of the United States.52 Courts take judicial notice of official proclamations 5 and orders 54 issued by the chief executive or by his order. In some states, however, the courts do not judicially notice a pardon.55

[$979] 20. Elections.56 Courts take judicial notice of general state elections.57 Federal courts take judicial notice of the date prescribed by law for the general election of state officers, and the legal requirements under which such election is held.58 It is judicially known that the primary, when adopted by a political party, becomes an inseparable part of the election machinery.50 The court may take judicial notice that many voting precincts throughout the state have no permanent polling places.co

[$980] 21. Federal Departmental Regulations. Although there have been some decisions to the contrary, there is now 61 no doubt that regulations promulgated by a federal executive department, in pursuance of authority delegated by congress and for the transaction of business in which the public is interested, must be judicially noticed by all courts.62 But such notice has not usually been

51. Treaties judicially noticed see Evidence [16 Cyc 903].

AnnCas 824.

taken of the rules made by subordinate officials or boards.63

[§ 981] 22. Public Officers and Acts and Signatures Thereof. A court judicially knows who is the chief executive of the state wherein it sits,64 and takes judicial notice of such other public officers 65 at least as are required by law to be commissioned by the governor, 66 and judicially recognizes their official signatures,67 as well as the signature of the president of the United States.68 Also, it will take judicial notice of the seals of notaries public.69 It has been held that courts will not take judicial notice of the official character of the deputies or assistants of the attorney-general.70 The duties of a public officer will be noticed judicially in so far as they are defined by statute."1 The courts cannot take judicial notice that any farm, other than the one named by statute as part of the state penitentiary, is a part of such institution and under the supervision of its board of trustees.72

[§ 982] 23. Legislative Journals. Although there are some decisions to the contrary,73 the great weight of authority is that the courts may ex officio take judicial notice of the legislative journals required by law to be kept, to ascertain the validity or construction of a public statute.74

[§ 983] 24. Judicial Department 75—a. Organization, Jurisdiction, and Powers of Courts-(1) In

[a] Regulations of the land office, whether prescribed by the secretary 52. See statutory provisions. of the interior or by the commis[a] In California, Montana, and sioner, are not known judicially and some other states of the far west there is such a statute. must be pleaded. U. S. v. Bedgood, Poheim v. 49 Fed. 54. Meyers, 9 Cal. A. 31, 98 P 65; State [b] Conflict of authority discussed. V. Tully, 31 Mont. 365, 78 P 760, 3-"There are authorities to the contrary, but an examination will disclose' that in most instances these cases were concerning regulations which originated with the department, or, if made pursuant to a statute, they were departmental regulations simply, not affecting the general public, and not designed or intended to control its conduct." Hoke, J., in State v. Southern R. Co., 141 N. C. 846, 855, 54 SE 294.

Per

if it would, confer law-making power" (U. S. v. Bedgood, 49 Fed. 54, 58), (3) and that such regulations are not law, but in aid of the law (Prather v. U. S., 9 App. (D. C.) 82 [writ of error dism 164 U. S. 452, 17 SCt 997, 41 L. ed. 5101). (4) In the leading case it was said that such rules and regulations "become a mass of that body of public records of which the courts take judicial notice." Per Brewer, J., in Caha v. U. S., 152 U. S. 211. 222. 14 SCt 513. 38 L. ed. 415.

63. U. S. v. Rohe, 218 Fed. 182; Com. v. Crane, 158 Mass. 218. 33 NE 388. See also Evidence [16 Cyc 903]. [a] Thus (1) regulations of the commissioner of internal revenue are not judicially noticed. Com. v. Crane, 158 Mass. 218, 33 NE 388. (2) Neither are the regulations made by the bureau of animal industry. U. S. v. Rohe, 218 Fed. 182.

64. Powers v. Com., 110 Ky. 386, 61 SW 735, 63 SW 976, 22 KvL 1907,

53. State v. Ricksecker, 73 Kan. 495, 501, 85 P 547 [cit Cyc and dist 10 Kan. 593, as a case decided under a different statute] (judicially noticing a city as of the second class, it having become such in virtue of a public proclamation by the executive); State v. Swink, 151 N. C. 726, 66 SE 448, 19 AnnCas 422 [dist State Chambers, 93 N. C. 600, on the ground that the election was there confined to a single town in the state] (taking judicial notice of the governor's proclamation announcing the result of a general election). See also Evidence [16 Cyc 904]. [a] "All authorities hold that the Courts take judicial notice of the proclamations of the executive." State v. Swink, 151 N. C. 726, 728, 66 SE 448, 19 AnnCas422 [cit Cyc]. [b] Proclamations of pardon and amnesty are judicially noticed. ArmStrong v. U. S., 13 Wall. (U. S.) 154, 20 L. ed. 614; In re Greathouse, 10 [a] Reasons for rule.-(1) It is F. Cas. No. 5,741, 2 Abb. 382, 4 Sawv. sometimes said that such regulations 487: State v. Keith, 63 N. C. 140. "have the force of law." U. S. v. See also Evidence [16 Cyc 904]. Moody, 164 Fed. 269 (per Knappen, 54. State v. Tully, 31 Mont. 365, J.). To same effect U. S. v. Eaton. 78 P 760, 3 AnnCas 824 (taking ju- 144 U. S. 677, 688, 12 SCt 764, 36 dicial notice of an executive order of L. ed. 591 (where the court said: the federal government creating a "Regulations prescribed by the Presmilitary reservation in the state). ident and by the heads of depart55. State V. Garrett, 135 Tenn. 617. 188 SW 58, LRA1917B 567. 56. See also Evidence [16 Cyc 901]. 57, State v. Barr, 23 Del. 340, 79 A 730: Bell v. State, 11 Okl. Cr. 37, 141 P 804; Gay v. Eugene, 53 Or. 289, 100 P 306, 18 AnnCas 188. law; but it does not follow that a 58. U. S. v. Morrissey, 32 Fed. 147. thing required by them is a thing so 59. Com. v. Willcox, 111 Va. 849, required by law as to make the neg159, 69 SE 1027 (where Keith, J., lect to do the thing a criminal of"It is impossible to se- fence in a citizen, where a statute cure the regularity and purity of does not distinctly make the neglect the general election without in the in question a criminal offence"); Wilfirst place guarding against irregu-kins v. U. S., 96 Fed. 837, 37 CCA 588; larity and fraud at the primary elec- State v. Southern R. Co., 141 N. C. 846, 54 SE 294. (2) On the other hand, it is said that "no rule or regu

62. U. S. v. Rohe, 218 Fed. 182; Bruce v. U. S., 202 Fed. 98, 120 CCA 370; U. S. v. Moody, 164 Fed. 269; Nurnberger v. U. S., 156 Fed. 721, 84 CCA 377; Kansas City Southern R. Co. v. State, 90 Ark. 343, 119 SW 288; Prather v. U. S., 9 App. (D. C.) 23 KyL 146, 53 LRA 245. To same effect 82 [writ of error dism 164 U. S. 452, 17 SCt 997, 41 L. ed. 510]; State v. Seaboard Air Line R. Co., 169 N. C. 295, 84 SE 283; State v. Southern R. Co., 141 N. C. 846, 852, 54 SE 294 [cit Cyc]. And see Evidence [16 Cyc 903].

also said:

tion").

60. State v. Phillips, 193 Mo. A. 510, 186 SW 559.

61. U. S. v. Bedgood, 49 Fed. 54.

ments, under authority granted by
Congress, may be regulations pre-
scribed by law, so as lawfully to
support acts done under them and in
accordance with them, and may thus
have, in a proper sense, the force of

lation can become or have the force

of law" and that "congress cannot,

Major v. State, 2 Sneed (Tenn.) 11. 65. Judicial notice of public offcers in general see Evidence [16 Cyc 899].

[a] "It has always been held that, as a matter of necessity, the courts will judicially know the public officers of the state and counties." Per Turley, J.. in State v. Cole, 9 Humphr. (Tenn.) 626, 627.

66. Osburn v. State, 121 Ga. 170, 48 SE 965.

67. Powers v. Com., 110 Ky. 386, 61 SW 735, 63 SW 976, 22 KyL 1807,

23 KyL 146, 53 LRA 245. See also Evidence [16 Cyc 902].

68. Estes v. U. S., 225 Fed. 980, 141 CCA 102.

69. State v. Zehnder, 182 Mo. A. 161, 168 SW 661.

70. Crawford v. State, 155 Ind. 692, 57 NE 931.

71. Lynn v. Peo., 170 Ill. 527, 48 NE 964; State v. Logan, 268 Mo. 169, 186 SW 979.

72. Montgomery V. Miss. 518, 65 S 572.

State, 107 246 Ill. 428, Sec also 74. Jackson v. State, 101 Ark. 473, 142 SW 1153. See also Evidence [16 Cyc 907].

73. Peo. V. Braun,
92 NE 917, 20 AnnCas 472.
Evidence [16 Cyc 9071.

75. See also Evidence [16 Cyc 911,

919].

provisions controlling in the same jurisdiction; and sessions of a board of county commissioners thus prescribed are likewise judicially known.88

[§ 986] (4) Judges and Justices.89 It is generally held that state courts judicially notice not only their own but also the judges of the various other courts in the state,90 including justices of the peace and justices of police courts.92 Judges of federal courts are probably judicially cognizant of all the other federal judges, but it has been held that they do not take judicial notice of justices of the peace of a state other than that in which the court is sitting.94

[ 987] (5) Court Officials 95—(a) In General. Courts take judicial notice of the names 96 and official signatures 97 of their own officers, and generally of the officers of other courts of the forum.98 [§ 988] (b) Clerks.99 Clerks.99 A court judicially knows its own clerk, his name 2 and his signature;3 and Pritchett, 11 Bush v. Peloquin, 106 Me.

it has been held that the clerk of another court in the state is likewise known if his signature is accompanied by the seal of the court.5

[989] (c) Prosecuting Attorneys. Courts judicially recognize prosecuting attorneys in their official capacity, and their assistants or deputies, within the jurisdiction, and also their signatures,10 whether their official designations be added or omitted,11 or erroneously given,1 12 or not given in full.13

[§ 990] b. Organization, Sessions, and Proceedings of Grand Jury. A judge of one court has no judicial knowledge of a grand jury impaneled in another court.1 But a grand jury is judicially recognized by the court in which it exercises its functions,15 and the court will take judicial notice that the grand jury were publicly drawn in the presence of the officials required to be present.16 voluntary report of a grand jury, not made pursuNebr.-Trimble v. State, 61 Nebr. | State, 7 Humphr. 604, 85 NW 844.

S. D-State v. Kinney, 21 S. D. 390, 113 NW 77.

Tenn.-Teas v. State, 7 Humphr.

174.

Tex.-Cardenas v. State, 58 Tex. Cr. 109, 124 SW 953; Bennett v. State, (Cr.) 92 SW 417.

4. Major v. State, 2 Sneed (Tenn.) 11; State v. Cole, 9 Humphr. (Tenn.) 626; State v. Citizens' Trust, etc., Co., 72 W. Va. 181, 77 SE 902. See also Evidence [16 Cyc 914].

5. Dobbs v. State, 5 Okl. Cr. 475, 114 P 358, 115 P 370 (where a transcript on appeal was rejected because the clerk's signature thereto was not verified by the seal of the court). Contra in a similar case Major v. State, 2 Sneed. (Tenn.) 11.

6. Attorneys at law judicially noticed see Evidence [16 Cyc 915].

7. State v. Campbell, 210 Mo. 202, 109 SW 706, 14 Ann Cas 403; State V. Kinney, 81 Mo. 101; Bennett v. State, Mart. & Y. (Tenn.) 133. See also Evidence [16 Cyc 915].

[a] The reason is that "the court is bound to take notice of its own officers." State v. Kinney, 81 Mo. 101, 102.

ant to any law providing therefor, will be judicially ignored.17

[§ 991] c. c. Practice and Procedure. A court is judicially cognizant of the practice prevailing therein,18 and of the fact that there is a radical difference between the criminal procedure of the state and that of a foreign country.19 Appellate courts will take judicial notice of the practice of introducing a great deal of immaterial evidence.20

[ 992] d. Judicial Records. Generally speaking 21 all courts take judicial notice of their own records.22 Thus a court will take judicial notice of its records relative to the duties of its officers, when it is claimed that the officers failed to perform them.23 And the proceedings of the court in any particular case, as evidenced by its records, are always before the court, without proof thereof, in subsequent stages of the same case.24 Thus it has been held that former jeopardy by reason of a trial (Tenn.) 174, as edge, and returned to the court all cited and quoted infra note 13. And the true bills it found"). as to the necessity that the signature should be designated as official see in general Indictments and Informations [22 Cyc 252].

A

12. State v. Kinney, 81 Mo. 101 (holding an indictment sufficient where "circuit attorney" was appended to the signature instead of the correct title, "prosecuting attorney," the record reciting that the signer was the prosecuting attorney at the impanelment of the grand jury which found the indictment). To same effect Bennett v. State, Mart. & Y. (Tenn.) 133.

13. State V. Campbell, 210 Mo. 202, 109 SW 706, 14 AnnCas 403; State v. Evans, 8 Humphr. (Tenn.) 110 [dist Teas v. State, 7 Humphr. (Tenn.) 174 (where "solicitor general" appended to the signature made an indictment fatally defective, because there was no such office as solicitor general, and, consequently, as the court there said, the words "gave to the signature [no] official character whatever")] (holding an indictment sufficient, although the title "attorney-general" was appended to the signature without specifying for what judicial circuit, there being many district attorneysgeneral in the state and also an attorney-general for the state).

18. U. S. v. Greene, 113 Fed. 683. See also Evidence [16 Cyc 915]. 19. Mislik v. State, 184 Ind. 72, 110 NE 551 (Austria). 20. State V. La. 366, 70 S 328.

Higginbotham, 138

21. Qualification of rule see cases infra note 30.

22. Ross v. Peo., (Colo.) 162 P 152. And see Evidence [16 Cyc 917]. [a] What constitutes the record.— "A court can only take judicial notice of such acts and proceedings as would properly go upon the record.

We do not mean to be understood that the court can only take judicial notice of such acts and proceedings as are actually recorded. Mere verbal orders may be given by the judge, which are never placed upon record, and for the disobedience of which one might be punished as for contempt. But all such orders and proceedings could properly be placed upon the record of the court, if necessary, and usually would be, if proceedings in the nature of punishing for contempt were to grow out of them." Per Conger, P. J., in Dines v. Peo., 39 Ill. A. 565, 568.

23. U. S. v. Lewis, 192 Fed. 633, To same effect U. S. v. Greene, 113 Fed. 683; U. S. v. Terry, 39 Fed. 355.

24. U. S.-U. S. v. Wright, 224 Fed. 285; Withaup v. U. S., 127 Fed. 530, 536, 62 CCA 328; U. S. v. Blaisdell, 24 F. Cas. No. 14,608, 3 Ben. 132.

Ind.-State v. Simpson, 166 Ind. 211, 76 NE 544, 1005.

Iowa.-State v. Olds, 106 Iowa 110, 76 NW 644.

8. See case infra this note. [a] "This knowledge only extends to him as an officer. Whether he is an intimate acquaintance, or an entire stranger, in no respect changes 14. Matter of Hackley, 21 HowPr the case. When he goes out of office, (N. Y.) 103, 104 (where Barnard, we cease to take judicial notice of J., in the supreme court, discharghim, or to know anything of the ing a petitioner in habeas corpus changes of pursuit which may en- from a commitment by the court of gage his time, and when as an in- sessions for refusing to answer quescumbent of a different office, we tions propounded by a grand jury, recognize him as such; it is with no said: "Though we are bound to take reference or connexion with his judicial notice of the various courts former position, nor do the names established by law, and of the judges Kan.-State v. Kesner, 72 Kan. 87, add to or detract from such knowl-presiding over them, yet it is differ- 82 P 720; State v. Bowen, 16 Kan. edge." Shropshire v. State, 12 Ark. ent in the case of bodies not con- 475. 190, 210 (the court declining to take tinuous in their nature, but sum- Miss.-McGuire v. State, 76 Miss. Judicial notice that the judge pre- moned from time to time, who are 504, 25 S 495. siding at the trial in the court below to be summoned in a manner spewas the prosecuting attorney of the cifically provided, and after being same name when the indictment was summoned are to be organized and found). sworn before they can proceed with their duties. In the case of such bodies, judicial notice cannot be taken that all the prerequisites have been complied with").

9. Crawford v. State, 155 Ind. 692, 57 NE 931; State v. Guglielmo, 46 Or. 250, 79 P 577, 80 P 103, 69 LRA 466, 7 AnnCas 976; Peo. v. Lyman, 2 Utah 30. 10.

Choen v. State, 85 Ind. 209;
State v. Kinney, 81 Mo. 101.
[a] The name of a prosecuting at-
torney is judicially known to
the
court in which he is authorized to
prosecute.
Gragg v. State, 3 Okl.

Cr. 409, 106 P 350.
[b] Signature of the "Director of
Public Prosecutions" was, however,
denied judicial notice in England.
Rex. v. Turner, [1910] 1 K. B. 346.
11. State v. Kinney, 81 Mo. 101
(where the statement as to the omis-
sion of a designation was a dictum).
See the same case more fully set
forth infra note 12; and Teas V.

15. Overton v. State, 60 Ala. 73, 75 (where it was said: "The grand jury is, quoad hoc, a part of the court, and its constitution, presentments, and findings are entered and preserved in the records of the court, as portions of its own proceedings, of which it consequently has a knowledge of its own").

16. U. S. v. Greene, 113 Fed. 683. 17. Chicago, etc., Coal Co. v. Peo., 114 Ill. A. 75, 97 [aff 214 Ill. 421, 73 NE 770] (where, speaking of a report accompanying an indictment, the court said: "That body performed its whole duty when it passed upon all criminal cases of which it had knowl

Mo.-State v. Ulrich, 110 Mo. 350, 19 NW 656; State v. Daugherty, 106 Mo. 182, 17 SW 303 (which was a case of successive indictments, in continuation of the original, the latter being therefore judicially noticed); State v. Jackson, 106 Mo. 174, 17 SW 301; State v. Nicholas, 163 Mo. A. 527, 143 SW 1198 [adopting op 149 Mo. A. 121, 130 SW 96] (where, on a second information, the first was judicially noticed).

S. C.-State v. Hunter, 82 S. C. 153, 155, 63 SE 685 (where Woods, J., said: "It is too obvious for argument that on the trial the Circuit Court should take judicial notice of all orders of record made in the progress of the cause, including the remittitur from this Court on appeal").

Tex.-Dupree v. State, 56 Tex. Cr. 562, 565, 120 SW 871, 133 AmSR 998, 23 LRANS 596 (holding, per Ramsey, J., that, where a record of a for

and verdict in the same court will be judicially noticed;25 but the authorities are not harmonious on that point.2 Taking judicial notice of a prior judg ment in subsequent proceedings constituting part of the original case,27 a court in criminal proceedings for violating an injunction will judicially recognize its own order granting the injunction 2 according to the practice in civil cases.29 It is a general rule that the court does not, in the trial of one case, take judicial notice of proceedings had in other cases, even though shown by its own records,30 and a for

mer conviction in the same court was introduced in evidence "the court and judge presiding knew and was charged by law with knowing that the conviction in the original case, the basis of the plea, had been appealed from and on such appeal the judgment and its effect suspended"). Utah.-State v. Bates, 22 Utah 65, 61 P 905, 83 AmSR 768.

[a] In imposing a death sentence the court takes judicial notice of its judgment of conviction and the legal effect thereof. Peo. v. Durrant, 119 Cal. 54, 50 P 1070.

[b] A demurrer to a second indictment, on the ground that the prosecution is barred by the statute of limitations, brings before the court all orders entered in the case, of which it takes judicial notice; and if, from these orders, it appears that the prosecution was begun in time under the original indictment, and that it has been continuous, the demurrer should be overruled. Louisville, etc., R. Co. v. Com., 4 KyL 627.

[c] An appellate court "should take judicial notice of its own orders and decrees made in a former appeal in the same cause." Per Woods, J., in State v. Hunter, 82 S. C. 153, 155, 63 SE 685. To same effect McNish v. State, 47 Fla. 69, 36 S 176; State v. Harrison, 24 Kan. 268; Mayhew v. State, 69 Tex. Cr. 187, 155 SW 191.

[d] Proceedings before an examining magistrate (1) are judicially noticed by the trial court, at least so far as they legally constitute a part of the record in the latter court. State v. Stevens, 56 Kan. 720, 722, 44 P 992 (where such proceedings were noticed as showing that the prosecution was not barred by the statute of limitations; the certified transcript, revived by statute, of such proceedings, was full and explicit; but Martin, C. J., said: "Where a docket is not in existence or is imperfectly kept, or no transcript is on file, it may be necessary to resort to the best evidence obtainable to show the prior proceedings in the case; but then it would seem that the evidence should be introduced merely for the information of the court, and not to go before the jury"). (2) But on a motion in a criminal case to require the prosecuting attorney to produce for inspection certain articles alleged to have been before the justice on the preliminary examination of defendant, the court cannot take notice that such articles were in fact before the justice. McDonel v. State, 90 Ind. 320 (because, among other reasons, the court could not judicially know that the articles were in the custody of the attorney).

25. U. S.-In re Bennett, 84 Fed. 324.

28

tiori such cognizance is not taken of the records in other courts.31 However, where the competency of a witness is in question, a court in some states at least will take judicial notice of the conviction of,32 or the pendency of a complaint against,33 the witness, in the same court.

[§ 993] C. Burden of Proof 34-1. In General The burden is on the state to establish the guilt of accused,35 that is, to prove every fact and circumstance which is essential to the guilt of the accused, or, as frequently stated, to prove every essential ele

35 Tex. Cr. 458, 34 SW 290.
"The court itself was bound to
take judicial notice of every step
shown by its own record to have
been taken in the prosecution of the
case before it,-notice not only of
the petitioner's arraignment, and of
his plea upon such arraignment, but
also of the verdict rendered upon the
former trial of the same case, and
entered upon the record of the court
as a perpetual memorial of its ren-
dition, and, having judicial knowl-
edge of such facts, the court was
bound to know that, under the con-
stitution, it no longer had jurisdic-
tion to retry the petitioner for the
offense of which he had been ac-
quitted by such former verdict." In
re Bennett, supra.

[a] "Special pleas of former ac-
quittal or conviction, as are pro-
vided for by statute (Code Crim.
Proc., art. 525), are pleas allowable,
and in most instances required, in
subsequent prosecutions separately
instituted for an offense which has
before been tried in some other tri-
bunal, or in the same court under
another and distinct proceeding from
the case in which the pleas are inter-
posed, and where they are essential
in order to present before the court
matters dehors the record before the
court. Such pleas are unnecessary,
and are not required in the same
tribunal where the record then be-
fore, or within the judicial knowl-
edge of the court, presents all the
facts concerning the former trial
and its result. In such case the
court is bound to take cognizance of
the facts, they are a part and parcel
of the case before the court, and the
defendant is not required to plead
them." Per White, J., in Robinson v.
State, 21 Tex. A. 160, 162, 17 SW 632.
26. See supra § 760.

27. See Evidence [16 Cyc 918].

[a] "In a collateral matter growing out of the original case" so characterized in the case here cited-such as a contempt proceeding for remarrying within two years of a judgment of divorce, the court could not take judicial notice of its record in the divorce case. State v. Branner, 174 Ind. 684, 93 NE 70.

28. Schwartz V. U. S., 217 Fed. 866, 133 CCA 576; State v. Thomas, 74 Kan. 360, 86 P 499; State v. Jones, 20 Wash. 576, 56 P 369.

29. Judicial notice in civil proceedings for contempt see Contempt § 110.

30. U. S.-Withaup v. U. S., 127
Fed. 530, 62 CCA 328.

Colo. -Ross v. Peo., 162 P 152.
Iowa.-State V. Saling, 159 NW

255.

Mass.-Com. v. Hill, 11 Cush. 137. Tex.-Byrd v. State, 51 Tex. Cr. 539, 103 SW 863.

W. Va.-State v. Davis, 68 W. Va. 142, 69 SE 639, 32 LRANS 501, Ann Cas1912A 996.

Ark.-Johnson v. State, 29 Ark. 31, 21 AmR 154. Wyo. Nicholson v. State, 18 Wyo. Fla. McNish v. State, 47 Fla. 69,298, 106 P 929. 36 S 176.

[a] Illustrations.—(1) An indictKan.-State v. Bowen, 16 Kan. 475. ment for receiving stolen goods alNebr.-George v. State, 59 Nebr.leged that they were stolen by some 163, 80 NW 486. person to the grand jury unknown. The same grand jury indicted another person by name for stealing

Tex.-Richardson v. State, 47 Tex. Cr. 592, 85 SW 282; Mixon v. State,

the same goods. The trial judge charged that, if the jury found that the thief was known to the grand jury at the time of the indictment, they should find accused not guilty. Defendant contended that the question should not have been left to the jury,

as the other indictment estopped the state from setting up that the grand jury did know he was the thief. It was held that the

charge was correct, as the court could not take judicial notice that

the larcenies set out in the indictment for theft were the same as those set forth in the present indictment. Com. v. Hill, 11 Cush. (Mass.) 137. (2) To warrant the imposition of the increased penalty imposed for a second conviction, by Code (1905) c 32 § 5, a former conviction must have been alleged and proved, as the court cannot take judicial notice thereof for the purpose of imposing the penalty prescribed. State v. Davis, 68 W. Va. 142, 32 LRA 501, Ann Cas1912A 996, 69 SE 639.

See also Evidence [16 Cyc 917]. 31. State v. Edwards, 19 Mo. 674 (holding that a judge sitting in one county cannot take judicial notice of a conviction or nolle prosequi previously had before him in another).

[a] Former jeopardy by reason of a prior conviction in another court cannot be judicially noticed. Morton v. State, (Ind.) 100 NE 449. 32. Baker v. State, (Tex. Cr.) 187 SW 949.

33. Sola v. State, (Tex. Cr.) 188 SW 1005.

34. Burden of proof:

In civil cases see Evidence [16 Cyc
926].

Instructions on see infra § 2392.
Of infancy see Infants [22 Cyc 624,
626].

On Application for:

Bail see Bail § 204.

Change of venue see supra § 324. On motion to quash see Indictments and Informations [22 Cyc 426]. Degree of proof see infra § 1590. Issues, proof, and variance see Indictments and Informations [22 Cyc 445].

seq.

Order of proof see infra § 2151 et
Presumptions see infra § 1005 et
V. Peo., 60

seq.

35. Colo.-McBride Colo. 435, 153 P 751.

Del.-State v. Hastings, 25 Del. 482, 81 A 403; State v. Anderson, 24 Del. 135, 74 A 1097; State v. Fahey, 19 Del. 594, 54 A 690.

Ga.-Raysor v. State, 132 Ga. 237, 63 SE 786.

Ida.-State v. Seymour, 7 Ida. 257. 61 P 1033.

Ky. Com. v. Finnell, 7 Ky. Op. 196. Mass.-Com. v. Cassidy, 209 Mass. 24, 95 NE 214. Mo.-State v. Miles, 174 Mo. A. 181, 156 SW 758. N. J.-State v. Lax, 71 N. J. L. 386, 59 A 18.

N. Y.-O'Connell v. Peo., 87 N. Y 377. 41 AmR 379 [aff 62 How Pr 436]: Stover v. Peo., 56 N. Y. 315; Stokes v. Peo., 53 N. Y. 164, 1 Cow. Cr. 557, 13 AmR 492. Okl.-Rea v. State, 3 Okl. Cr. 269. 105 P 381.

Ont.-Rex v. Harron, 6 Ont. L. 668, 2 OntWR 903.

"The burden of proof is always on the prosecution to prove all the elements necessary to constitute the guilt of the defendant." Peo. v. Harris, 169 Cal. 53, 68, 145 P 520.

37. Smith v. U. S., 208 Fed. 131, 125 CCA 353; Farris v. Com., 14 Bugh (Ky.) 362; Henderson v. State, 14 Tex. 503.

38. U. S.-U. S. v. Gooding, 12 Wheat. 460, 6 L. ed. 693.

Ind. Sanders v. State, 94 Ind. 147.
Minn.-State v. Gut, 13 Minn. 341;
Bonfanti v. State, 2 Minn. 123.
Oh.-Fuller v. State, 12 Oh. St.

Or.-State v. Hansen, 25 Or. 391, 35 P 976, 36 P 296.

Tex.-Horn V. State, 30 Tex. A. 541, 17 SW 1094; Jones v. State, 13 Pa. Ortwein v. Com., 76 Pa. 414, Tex. A. 1; Haynes v. State, 10 Tex. 18 AmR 420.

Tex.-Ellis v. State, 30 Tex. A. 601, 18 SW 139.

Utah.-Peo. v. Dillon, 8 Utah 92, 30 P 150.

Wis. Revoir v. State, 82 Wis. 295, 52 NW 84.

Burden of proving matters excepted in statute defining crime see infra § 999.

Constitutionality of statutes regulating burden of proof see Constitutional Law §§ 285, 580.

Davis v. U. S., 160 U. S. 469, 16 SCt 353, 40 L. ed. 499; Wilson v. State, 8 Ga. A. 816, 70 SE 193; State v. Kimes, 145 Iowa 346, 124 NW 164.

40. U. S.-Agnew v. U. S., 165 U. S. 36, 17 SCt 235, 41 L. ed. 624; Chaffee v. U. S., 18 Wall. 516, 21 L. ed. 908; U. S. v. Wright, 16 Fed. 112; U. S. v. Babcock, 24 F. Cas. No. 14.487, 3 Dill. 581; U. S. v. Woods, 28 F. Cas. No. 16,760, 4 Cranch C. C. 484.

Ala.-Wharton v. State, 73 Ala. 366; Ogletree v. State, 28 Ala. 693.

Cal.-Peo. v. Perini, 94. Cal. 573, 29 P 1027.

Colo.-Boykin v. Peo., 22 Colo. 496, 45 P 419.

Conn.-State V. Schweitzer, 57 Conn. 532, 18 A 787, 6 LRA 125; State v. Mosier, 25 Conn. 40.

Del.-State v. Taylor, Houst. Cr.

Ind. Welty v. State, 180 Ind. 411, 100 NE 73; Trogdon v. State, 133 Ind. 1. 32 NE 725.

Iowa.-State v. Kimes, 145 Iowa 346, 124 NW 164; State v. Brady, 91 NW 801.

Kan.-State v. Conway, 56 Kan. 682, 44 P 627; State v. Grinstead, 10 Kan. A. 74, 61 P 975.

Ky.-Ball v. Com., 81 Ky. 662, 5 KyL 787; Farris v. Com., 14 Bush 362.

Me.-State v. Flye, 26 Me. 312. Mass.-Com. v. Cassidy, 209 Mass. 24, 95 NE 214; Com. v. McKie, 1 Gray 61, 61 AmD 410; Com. v. Dana, 2 Metc. 329; Com. v. Kimball, 24 Pick. 366.

Mich.-Peo. v. McWhorter, 93 Mich. 641. 53 NW 780; Peo. v. Millard, 53 Mich. 63, 18 NW 562.

Miss.-Hampton v. State, 99 Miss. 176, 54 S 722.

Mo.-State v. Hardelein. 169 Mo. 579, 70 SW 130; State v. Hickam, 95 Mo. 322, 8 SW 252, 6 AmSR 54; State