City of De Soto v. Brown

Biggs, J. The defendant was arrested, and was tried and convicted before the police judge of the city of Be Soto, for aiding, counseling and advising certain persons confined in the city prison under conviction for misdemeanors to make their escape therefrom, contrary to the ordinances of the city. On appeal to the circuit court he was again found guilty by the jury, and his fine fixed at the sum of $10. Prom this judgment he has again appealed. The grounds relied on for a reversal of the judgment are: First, that the information is sufficient to sustain a prosecution ; second, that there was no legal evidence that the office of police judge for the city of Be Soto had been established in the manner required by law; third, that the court committed prejudicial error in the admission of evidence against the defendant’s objection. The first objection made to the information is that it fails to state whether the persons confined in the prison were held under convictions by the city or state courts. It is averred that the parties released by the defendant were confined in the city prison under conviction for misdemeanors, which is, in effect, a charge that they were in the hands of a public officer, and implies that they were lawfully held as prisoners. It was immaterial in what court they were convicted. The names of the persons were stated in the information, as also the date of their alleged release by defendant. These averments were certainly sufficient to apprise the defendant of the offense with which he was charged. The case of State v. Hilton, 26 Mo. 199, upon which the defendant relies, can have no application to this case. The facts are essentially different. The information, although inartificially drawn, substantially follows the language of the ordinance. This [152] is held to be sufficient. City of St. Louis v. Knox, 74 Mo. 79. It is also claimed that the motion to quash the information ought to have been sustained because the act, with which the defendant stood charged, is made a misdemeanor under the general law of the state, and is punishable by fine or imprisonment, or by both. Hence the argument is made that the city of De Soto could have no jurisdiction of the offense. In this we think the defendant’s counsel is in error, and his error has grown out of the fact, that he treats this prosecution as purely criminal in its character. The adjudications of the state are against this idea. While a proceeding by a city to collect a fine for the violations of its ordinances has some of the elements of a criminal prosecution (Ex parte Kiburg, 10 Mo. App. 442), yet the courts of the state have uniformly held it to be a civil action. City of St. Louis v. Schoenbusch, 95 Mo. 618; City of St. Louis v. Vert, 84 Mo. 204; City of St. Louis v. Knox, 74 Mo. 79 ; Ex parte Hollwedell, 74 Mo. 395 ; City of Kansas v. Clark, 68 Mo. 588 ; City of Kansas v. Muhlback, 68 Mo. 638 ; City of Marshall v. Standard, 24 Mo. App. 192. The fact that an offense is a misdemeanor under the statutes of the state does not prevent a city from providing for its punishment by ordinance, provided it has charter power to legislate on the subject. City v. Schoenbusch, supra. Cities of the fourth class have power to pass such ordinances as may be reasonable and deemed necessary to maintain the peace and good government of the city, R. S. 1879, sec. 4940. On the trial of the cause the city read in evidence the entries from the docket of the acting police judge of the city, showing that the persons confined in the city jail had been convicted of the violation of the ordinances of the city and that they had been committed to prison for failure to pay their respective fines. The acting police judge was allowed to testify without objection, that he was a police judge. In cities of the fourth class [153] the office of police justice must be created by ordinance. Sess. Acts, 1887, p. 86. Hence the defendant urges .that the' judgment herein cannot be upheld, because the plaintiff failed to establish by legal evidence that the office of police judge had been provided for in the man- : ner required by law. The testimony of the police judge :was certainly objectionable, but, as the defendant failed to make any objection to it, we must hold that he thereby waived the production of the best evidence of the fact to which the witness was permitted to testify. Kinion v. Railroad, 39 Mo. App. 382. Objections have been made touching the admissions of evidence, but we think they are without merit. After the city had closed its case, the court permitted it to introduce other testimony which had been overlooked. It has been repeatedly held that such things are within the discretion of the trial court. The other objections we do not deem it necessary to notice. The judgment of the circuit court will be affirmed. All the judges concurring, it is so ordered.