
    CITY OF JORDAN v. HENRY NICOLIN.
    
    November 15, 1901.
    Nos. 12,782 — (73).
    Intoxicating Liquor — Municipal Ordinance.
    In a prosecution for keeping a licensed, saloon open after eleven o’clock at night, contrary to an ordinance, it is necessary to show that the person charged with such offense had a license for the sale of intoxicating liquors at such place.
    Conviction not Sustained by Evidence.
    The evidence in this case does not sustain the judgment convicting the defendant, for there was no competent proof that he was a licensed saloon keeper.
    Appeal by defendant from a judgment of tbe district court for Scott county, Cadwell, J., affirming a judgment of a justice of tbe peace before whom defendant was convicted of tbe offense of keeping open bis saloon in violation of an ordinance of plaintiff city.
    Beversed.
    
      F. G. Irwin, for appellant.
    
      F. J. Leonard, for respondent.
    
      
       Reported in 87 N. W. 915.
    
   START, O. J.

Tbe defendant was convicted in justice court of a second violation of tbe same ordinance wbicb we held to be valid in tbe case of City of Jordan v. Nicolin, supra, page 367. He appealed from tbe judgment of tbe justice to tbe district court of the county of Scott, and from tbe judgment of tbe district court affirming tbe conviction be appealed to this court.

There is one question raised by tbe record in this case wbicb was not presented by tbe record in tbe other case. Tbe question arises upon tbe claim of tbe defendant that tbe prosecution failed to prove by any competent evidence that tbe defendant was a person licensed to deal in intoxicating liquors, and bad a license for bis saloon, wbicb be.was charged with having kept open contrary to the ordinance. It was necessary to prove this fact, for the ordinance is directed against parties licensed to sell intoxicating liquors, and not against persons keeping open unlicensed saloons. The gist of the alleged offense in this case is the keeping of a licensed saloon open contrary to the ordinance. In this respect it is an exception to the rule that requires the defendant to prove his license, as a part of his defense, when he is charged with doing an act without having such license.

On the trial the prosecution attempted to show that the defendant held a license for the place he was charged with unlawfully keeping open. Proper record evidence was offered and received showing that the defendant made application for .a license, gave the bond, that the bond was approved, and that the city council granted his application upon the payment by him into the city treasury of the sum of $500. But as to whether he ever paid the license fee, or whether the license was ever in fact issued, no evidence was given, except the oral evidence of the city clerk, which was this:

“Q. Has a license been granted to the defendant to sell liquor under that ordinance wdthin the past year? (Objected to as incompetent, irrelevant, and immaterial, and no foundation laid, and not the best evidence. Objection overruled. Exception taken.) A. Yes. Q. And at the place described in the application? (Defendant makes same objection. Objection overruled. Exception taken.) A. Yes.”

The objection to these questions should have been sustained, for the evidence sought to be elicited thereby was presumptively not the best evidence. It follows that there was no competent evidence that the defendant was a licensed saloon keeper, and that the judgment is erroneous because it is not justified by the evidence.

Judgment reversed and the case remanded, with direction to the district court to enter judgment reversing that of the justice.  