The appellant, Annie Wilson, was indicted in Dallas county. Texas, for keeping a disorderly house, which indictment was filed in the county court of said county, on the twenty-sixth day of May, A. D. 1883.
In answer to the indictment, appellant, in addition to the plea of not guilty, pleaded former acquittal in the mayor’s court of the city of Dallas, on two separate occasions, to wit: July 3, 1883, and May 28, 1883. On the trial, the jury under the instructions of the court found appellant’s pleas of former acquittal untrue, and found her guilty as charged, and assessed her punishment at a fine of one hundred dollars.
Upon the trial the court charged the jury as follows: “Under the defendant’s plea of former acquittal of this offense, in the mayor’s court of the city of Dallas, under complaint filed May 21, 1883, you are instructed that the same was for vagrancy, and cannot be pleaded by the defendant in bar of the prosecution in this case for keeping a disorderly house. Under the other plea of former acquittal filed by the defendant, charging by affidavit filed in the mayor’s court of the city of Dallas, on the twenty-seventh day of June, 1883, that she was the keeper of a disorderly house, as defined by section one of an ordinance of said city, passed on the thirteenth day of June, 1883, you are instructed that, under the charter of the city of Dallas, all ordinances which impose a penalty for their infraction must be published at least ten days before the same can be enforced, and it is incumbent on the defendant to show that the ordinance under which she was acquitted was published the requisite number of days, and in case she has failed to do so, then the plea can not be considered by you as a bar to this prosecution, and you will say in your verdict that you find the defendant’s plea to be untrue.”
That part of the above charge relating to vagrancy is correct. But that which relates to former acquittal for keeping a disorderly house is erroneous in two particulars.
1. It assumes the existence of a city ordinance requiring all penal ordinances to be published ten days before their enforce*502inent. In this the court erred. Courts do not take judicial ¡cognizance of special acts or laws.
" 2. Concede that such an ordinance had been introduced in evidence (which was not done), would defendant have been required to prove that the ordinance relating to keeping a disorderly house was published ten days before it could be enforced? Most evidently not. The presumption is that this ordinance had been published the requisite number of days, and it devolved Upon the party whose rights were antagonized thereby to show that the ordinance had not been thus published.
■ Suppose an ordinance be enacted on the first day of June, 1884, hnd twenty years thereafter the city authorities prosecute a party for its violation, must the city prove its publication? Must this be done in all prosecutions ? If so, in a great many instances the city would probably fail to make such proof. In these two inspects the charge of the learned judge was erroneous, and Very fatal to the plea of former acquittal.
Was the plea of former acquittal sustained by the proof? We &fe of the opinion that it was. However, the proof of that plea haay have been as full, complete, and overwnelming as it is possible for evidence to make it, and still the jury could not have found it true under the charge of the court relating thereto.
NBor the errors in the charge the judgment is reversed and the cause remanded.
Reversea and remanded. '■
Opinion delivered June 21, 1884.