Opinion
No. 353-80
Opinion Filed November 3, 1981
1. Courts — Judicial Notice — Ordinances
A court cannot take judicial notice of a local ordinance.
2. Indictment and Information — Variance
To be fatal, a variance between the allegations in an indictment or information and the proof offered at trial must be material and prejudicial.
3. Indictment and Information — Variance
Where uniform traffic ticket, which served as information, alleged that defendant travelled 40 miles per hour in a 25-mile-per-hour zone, in violation of a municipal ordinance, but evidence presented at trial proved only that defendant travelled 40 miles per hour, in the absence of proof that a legally effective ordinance required a lower speed, defendant committed no offense; therefore, the variance between the information and the proof offered at trial was material and prejudicial.
Appeal from conviction for speeding. District Court, Unit No. 5, Washington Circuit, Cheney, Acting District Judge, presiding. Reversed; judgment of acquittal entered.
Kenneth L. Atwood, pro se, Barre, Defendant.
Present: Barney, C.J., Billings, Hill and Underwood, JJ., and Daley, J. (Ret.), Specially Assigned
The defendant received a uniform traffic ticket from a Montpelier police officer for traveling 40 miles per hour in a 25-mile-per-hour zone. The ticket, which under Vermont law serves as the information, 23 V.S.A. § 2203, alleged violations of 123 V.S.A. § 1007 and Montpelier city ordinance 10-300. The reference to 123 V.S.A. § 1007 was intended to refer to 23 V.S.A. § 1007. Defendant pleaded not guilty and presented his case to a judge sitting without a jury. He was found guilty, fined $30, and appeals his conviction and fine to this Court.
23 V.S.A. § 1007 authorizes the legislative body of a municipality to establish the speed limits prevailing within its borders. Though the traffic ticket alleges a violation of a municipal ordinance, our search finds no mention in the record of the ordinance, much less of proof that it had legal effect. Under our law, a court cannot take judicial notice of a local ordinance. Hambley v. Town of St. Johnsbury, 130 Vt. 204, 208, 290 A.2d 18, 20 (1972); W. R. Sorg North Hero House, Inc. v. North Hero Zoning Board of Adjustment, 135 Vt. 423, 424, 378 A.2d 98, 100 (1977).
To be fatal, a variance between the allegations in an indictment or information and the proof offered at trial must be material and prejudicial. State v. Lamelle, 133 Vt. 378, 381, 340 A.2d 49, 51 (1975). Here, the evidence presented at trial proved only that defendant travelled 40 miles per hour. In the absence of proof that a legally effective ordinance required a lower speed, he committed no offense. Thus the variance is both material and prejudicial.
Reversed, vacated, and judgment of acquittal entered.