Bautsch v. City of Galveston

White, Presiding Judge. Appellant was convicted and fined in the recorder’s court of the city of Galveston for a violation of an ordinance of the city. His conviction was for an offense unknown as such to our Penal Code, viz: repairing a wooden building in the city of Galveston in violation of the city ordinances. The proceeding was instituted by a complaint filed in the recorder’s court, and the trial was by jury and resulted in defendant being fined in the sum of one hundred dollars and costs. From that judgment the defendant appealed to the criminal district court, in which court the city attorney filed a motion to dismiss the cause upon the following grounds, viz: “1. This court has no jurisdiction to try a cause for a violation of a municipal ordinance of the city of Galveston. 2. The charter of the city of Galveston, in creating a recorder’s court, does not provide for an appeal by the defendant in case of conviction. 3. The Code of Criminal Procedure does not provide for an appeal from a recorder’s court, except for violations of the Penal Code which are cognizable before a justice of the peace, or before a recorder acting in his capacity as ex officio justice of the peace,” etc. This motion was sustained [345] and the appeal dismissed, and from that judgment this appeal is prosecuted. It seems that the city of Galveston is incorporated under a special charter and not under the provisions of the general law as contained in title 17 of the Revised Statutes. (Arts. 340-541 b.) We have not been furnished with, nor have we had access to, the special charter, but it appears to be conceded by attorneys on both sides of this case that in such cases no right of appeal from the recorder’s court is conferred or denied, but that the charter is simply silent upon the subject. Such being the case the question is whether or not the right of appeal, being neither expressly withheld nor denied by the charter, it would obtain otherwise under the general statutes. Under provisions of our general law it is expressly declared that “all prosecutions, trials and proceedings had in said court (recorder’s) under this title shall be governed by the laws and rules regulating trials, prosecutions and proceedings in justices courts in force at the time.” (Rev. Stats., art. 361.) And under articles 894, 895 and 896 of our Code of Criminal Procedure, mayors and recorders are empowered to exercise within the corporate limits the same criminal jurisdiction, are governed by the same rules and have concurrent jurisdiction with justices of the peace. (Code Crim. Proc., art. 78.) By article 837, Code Criminal Procedure, defendant in any criminal action is given the right of appeal under the rules prescribed thereafter. And by article 839 it is provided that “appeal's from judgments rendered by justices of the peace and other inferior courts, in criminal actions, shall be heard by the county court, except in counties where there is a criminal district court, in which counties such appeal shall be heard by such criminal district court.” By article 1497 of the Revised Statutes it is declared that the criminal district court of Galveston and Harris counties “shall have exclusive appellate jurisdiction over all criminal cases tried and determined by justices of the peace, mayors and recorders in the said counties of Galveston and Harris, under the same rules and regulations provided by law from justices of the peace, mayors and recorders to the county court in criminal cases.” But it is contended that all these provisions refer to and were only intended, if they can apply at all, to criminal cases or to criminal actions, and that the case under consideration does not come within the definition of a “criminal action” or a [346] “criminal case,” and consequently does not, everything else being equal, come within the rules prescribed for such cases. We are cited to article 26 of the Penal Code and article 61 of the Code of Criminal Procedure for the definition of criminal action, as follows: “A criminal action, as used in this code, means the whole and any part of the procedure which the law provides for bringing offenders to justice;” “and a criminal action is prosecuted in the name of the the State of Texas against the person accused, and is conducted by some officer or person acting under the authority of the State, in accordance with its laws.” “An offense which a justice of the peace or the mayor or other officer of a town or city may try and punish is called a petty offense.” (Penal Code, art. 56.) We think the distinction sought to be drawn and made between “criminal actions” and “offenses” or “petty offenses” is hypercritical and not maintainable. It is expressly declared in terms by the code that “the provisions of this code shall be liberally construed so as to obtain the objects intended by the Legislature, the prevention, suppression and punishment of crime.” (Code Crim. Proc., art. 26.) Every provision of the code governing justices courts applies to mayors’ and recorders’ courts. (Code Crim. Proc., arts. 78, 895.) BFor do we think there is anything in the position that the rules do not apply to this class of cases because they are not prosecuted in the name of “The State of Texas.” “Though all prosecutions for offenses against the laws of the State must be carried on in the name of ‘The State of Texas.’ yet an incorporated city or town may ordain that offenders shall be prosecuted in the name of the municipality.” “It is only necessary that the prosecutions should be carried on in the name of the State when the prosecution shall be for a violation of the laws of the State.” (Ex parte Boland, 11 Texas Ct. App., 159.) It is unquestionably the general object and purpose of our statutes to give the right of appeal in all cases tried before mayors and recorders, to the same extent and in the same manner as they are permitted to be prosecuted from justices courts. The charter of the city of Galveston, as we understand it, does neither limit nor withhold this right—in fact is wholly silent upon the subject. The charter, being a special one, it should have expressly regulated the matter if it was intended that a different rule should obtain than that provided for cities incor [347] porated under the general law. Hot having done so, we hold that the rales announced by the general law and the policy of the law govern the question, and that in all criminal cases for violations of the city ordinances of the city of Galveston, tried by the mayor or recorder, an appeal lies to the criminal district court under the same regulations as apply to justices trials. Opinion delivered March 18, 1889. We are of opinion the court below erred in dismissing the appeal for want of jurisdiction, and the judgment is reversed and the cause remanded for trial in, said court. Reversed and remanded.