City of Columbia v. Johnson

Smith, P. J, This is an action brought by the plaintiff city against the defendant before the police judge of said city to recover a penalty for the violation of an ordinance. The complaint is as follows: “city’s complaint. “State of Missouri, 1 Before Clarence O’Mahoney, “County of Boone, > Police Judge of the City of “City of Columbia. J Columbia. “The City of Columbia, Plaintiff, v. “Louis Johnson (colored), Defendant. “The undersigned, city attorney of the city of Columbia, informs the court, and charges the fact to be that on the 19th day of September, 1896, at the city of Columbia, and within the corporate limits thereof, one Louis Johnson (colored) did, in violation of section 24 of an ordinance of said city, passed and approved on the 27th day of July, 1893, and entitled ‘An ordinance in relation to offenses against public morals, decency and public safety, in lieu of article 1 of ordinance 19 of Revised Ordinances of 1892, of the city of Columbia,’ then and there unlawfully carry concealed upon and about his person a deadly and dangerous weapon, to wit, a revolving pistol, contrary to said ordinance in such case made and provided, and against the peace and dignity of said city of Columbia. Wherefore plaintiff prays the court to declare and assess against the defendant herein, the penalties prescribed by said ordinance for the punishment of such offense, and that it render judgment therefor, together with the costs in this behalf expended, and that said defendant stand committed until judgment is complied with. “J. S. Banks, City Attorney. [235] “J. S. Banks, city attorney, makes oath and says that the facts and allegations contained in the foregoing are true according to his best information and belief. “J. S. Banks, City Attorney. “Subscribed and sworn to before me this 21st day of September, 1896. “Clarence O’Mahoney, Police Judge.” There was a trial in the circuit court, where the cause was removed by appeal, which resulted in judgment for the city from which defendant appealed. It is strenuously insisted by the defendant that the complaint does not state facts sufficient to constitute a cause of action, etc. It is in effect conceded that the city of Columbia is a city of the third class. It is disclosed by the evidence that the defendant was arrested in flagrante delicto by the marshal of the city. While in custody the city attorney filed the complaint before the police judge. A section of an ordinance of said city, introduced in evidence, provided “that it shall not be necessary to issue a warrant against any person lawfully arrested by an officer; but in all such cases it shall be the duty of the city attorney to file a complaint against the defendant setting forth the nature of the offense charged.” The complaint was based on the provisions of the twenty-fourth section of an ordinance approved July 27, 1893, which is as follows: Cc7ass:°poneceh'rd piaTAriñforing: conceaieá “If any person shall, within this city, carry concealed upon or about his person any deadly or dangerous weapon, he shall upon conviction be punished by a fine of not less than fifty dollars nor more than two hundred dollars, or by iinprisoninent in the J3oone county jail or city prison not less than five days nor more than six months, or by both such fine and imprisonment.” It very clearly charges the violation [236] of the above ordinance. All the essentials required by the ordinance are therein alleged. Springfield v. Ford, 40 Mo. App. 586. The ordinance is within the grant of power conferred by the charter. Laws 1893, pp. 85-100, secs. 93-122. Nor is the penalty prescribed by that ordinance in excess of that for the same offense denounced by the statute. R. S., sec. 3502. It is therefore plain that the provision of the ordinance is not in anywise out of harmony with the statutory provision on the same subject, and that the adoption of such ordinance by the city was an authorized exercise of. its jurisdiction. Kansas City v. Neal, 49 Mo. App. 73. The complaint was properly filed before the police judge of the city. Section 1 of ordinance number 25, introduced in evidence by plaintiff, provides for the establishment of the police court instead of the recorder's court. The charter of the city created the office of police judge and defined his powers. He is given exclusive original jurisdiction to hear and determine all offenses against the ordinances of the city, etc. Secs. 5, 41, 42 of charter. (Sess. Acts 1893, p. 68, 72.) The jurisdiction of the police judge is therefore conferred by the charter and not by an ordinance. It is therefore manifest that the police judge had jurisdiction of the defendant and the offense of which he was charged. This case is to be distinguished from the case of Salisbury v. Patterson, 24 Mo. App. 169, and the other like cases cited by the défendant. There the defendant was arrested without a warrant and the prosecution was on a verbal complaint of the marshal. The recorder did not make the entries on his docket that were required by Revised Statutes, section 1555. Here the defendant was in custody and the qity attorney having filed a proper complaint against him, no reason is seen why he could not be lawfully tried on the complaint without the issue of a warrant. He was fully apprised [237] by the complaint of the nature of the charge on which he was to be tried, and that was all that was required. Springfield v. Ford, supra. It follows from the foregoing observations that the court did not err in its action in overruling the defendant’s objections to the introduction by the city of any evidence to sustain its complaint. Evidence: definitions: time: hearsay. The witness Clinkscales, city marshal, testified that he had no independent recollection of the day he arrested defendant, but that he only remembered the date by referring to a little book kept at the station which showed that the arrest was made on September 19,1896, or about He further testified that he remembered that the city attorney pointed to the calendar for the date of the arrest. The defendant objected to this testimony of the witness as being hearsay. As we understand it, when the witness was about to make his entry in the book referred to he was uncertain as to the date, and thereupon the city attorney pointed to a day on the calendar and suggested that that was the proper date, which was adopted, and so the witness testified that the arrest was made on or about that date. The term “about that date,” as used by the witness, must be understood to mean near or in the neighborhood of the date of the arrest stated in the book referred to by him. Kinney’s Law Glos. and Dic. 6. It is not intended that the date of the arrest as stated by the witness was incorrect or that the offense was not committed within a year next before the filing of the complaint. Whatever may be the character of the testimony to which defendant objected it is not perceived that it was harmful to him. that date. This case is in no respect analogous in its facts to that of Kirkwood v. Autenreith, 21 Mo. App. 73, cited by defendant, where there were several actions for simi [238] lar offenses and the only distinguishing feature of any one offense from the others was the particular day on which it was committed. No such difficulty is presented here. __. rebmtai: other offenses, The defendant further objects that the city was allowed to prove in rebuttal other offenses than that for which he was prosecuted. This was error. pr0of should not have been admitted. It was clearly inadmissible for any purpose. State v. Crow, 107 Mo. 346; State v. Ringo, 71 Mo. 419; State v. Goetz, 34 Mo. 85. 1°nstrac'í>onsf' misconduct’o°f°' An examination of the numerous instructions given by the court has satisfied us that the case was very fully and fairly submitted to the jury. No harmful error is perceived in any of those given for the city. The burden of the proof was on the city and so remained throughout the trial. It had the right to make the opening and con-eluding argument before the jury. Porter v. Jones, 52 Mo. 399; Mfg. Co. v. Mfg. Co., 42 Mo. App. 307. The reference made by the city attorney in his argument before the jury to the race to which defendant belonged was in exceedingly bad taste and should not have been indulged in; but this is not of itself deemed of sufficient consequence to justify a reversal of the judgment. The judgment on account of the error of the court in admitting improper testimony must be reversed and remanded. All concur.