
    [No. 6217.]
    Kelley v. The City of Fort Collins.
    Evidence — Burden of Proof — Where an action is instituted to recover a penalty for violation of a municipal ordinance and the defense is that the municipality procured the violation of the ordinance, this defense must be made affirmatively to appear by the évidence. People v. Chapman, 31 Colo. 90 followed.
    
      Appeal from Larimer County Court — Hon. C. V. Benson, Judge.
    Messrs. Annis & Stow, for appellant.
    Mr. Paul W. Lee, for appellee.
   Chief Justice Steele

delivered the opinion of the court:

The defendant was fined by the county court for the violation of an ordinance of the city of Fort Collins. She appeals to this court.

It is urged that under the authority of The People v. Braisted, 13 Col. App. 532; Walton v. Canon City, 14 Col. App. 352; and Wilcox v. The People, 17 Col. App. 109, the city should not he permitted to maintain the action. The last and controlling case is that of The People v. Chapman, 31 Colo. 90; but we shall not discuss these cases, nor undertake to apply them to the facts of this case, as there is no testimony to sustain a finding that the city had bought liquors or had furnished money with which to buy liquors, from the defendant.

The court correctly, we think, found the defendant guilty, and as no prejudicial error intervened to warrant a reversal of the cause, the judgment is affirmed. Affirmed.

Mr. Justice. Campbell and Mr. Justice Musses concur.  