Webb City v. Parker

SMITH, P. J. — -An ordinance of plaintiff city -entitled “Council Rill No. 259 — Ordinance No. 19 — Misdemeanors,” providéd that whoever should “keep open any ale or porter house, grocery or tippling shop, or, sell; or. retail; any fermented Or distilled liquors at any. time on the first day of the week commonly called Sunday,” should be deemed guilty of a misdemeanor and be punished by fine, etc. The defendant was prosecuted, and convicted on an information based on the above-quoted ordinance provision. The cause was removed into the circuit court where on a trial anew the defendant was convicted, and from that judgment has appealed here. The complaint, while not as formal and specific in its averments as it might have been is nevertheless we think sufficient. The evidence was ample to prove the violation of the ordinance as charged in the complaint. The defendant insists that the ordinance on which ■the prosecution was based was never passed by the plaintiff city and that there was no valid ordinance in existence prohibiting the act charged or authorizing the prosecution. The city attorney testified that the city [297] clerk, the legal custodian of all the records and papers belonging to the city — Section 5774, Revised Statutes— delivered to him said ordinance No. 19 (Council Bill No. 259) and that hé had kept the same in his office; that it was signed by the “mayor,” “président of the council, pro tern, ’ ’and ‘ ‘ clerk; ’ ’ that the last sheet on which their names were written had within a few days before the trial been torn off and carried away by some one to him unknown, and that it-was the original and the only ordinance of the kind in existence. There was no published or certified copy of it. The city clerk testified that the ordinance in the hands of the city attorney was recorded in the ordinance book in his office and in which all the ordinances were recorded. He produced the journal of the council which showed that at a -regular session of the council held on January 20th, 1896, the rules were suspended and said ordinance No. 19 (Council Bill No. 259) was read a second and third time and passed, all the councilmen voting yea. The journal further recites that said ordinance with others was duly approved. This entry was approved by the mayor and attested by the clerk! The court held, and we think correctly so, that the ordinance was sufficiently proved. It did not purport to be a manuscript copy of the ordinance but the original ordinance itself as passed by the council and approved by the mayor, and it was therefore in our opinion primary evidence. Dillon’s Munic. Corp. (4 Ed.), sec. 422; The Town of Tipton v. Norman, 72 Mo. l. c. 385-6. And it was sufficiently identified and proved to establish its binding force and efficacy. The defendant further complained of the action of the court in refusing an instruction requested by him which, amongst other things, told the jury that it must be proved that sales of intoxicating liquors were suffered to be made by defendant between the hours of six o’clock a. m. and twelve o’clock noon on August 4, 1901, before he could be convicted. It has been repeatedly de [298] cided in this State that a conviction under an indictment for selling liquor will he sustained if it appears that the sale was made on any day within one year next before the finding of the indictment. State v. Carnahan, 63 Mo. App. 244; State v. Bradford, 79 Mo. App. 346; State v. Lantz, 90 Mo. App. 17. Time is not material in the statement of the offense; and therefore a sale may be alleged on one day and the proof may be of a sale on an. other day. State v. Small, 31 Mo. 197; State v. Heinze, 45 Mo. App. 403. It would, therefore, seem to follow that where the charge is that the sale was made on a certain Sunday and the proof shows that it was made on a different Sunday within the year before the finding of the indictment that that would be sufficient to support the conviction. As was said by us in Columbia v. Johnson, 72 Mo. App. l. c. 237, “this case is in no respect analogous in its facts to that of Kirkwood v. Autenreith, 21 Mo. App. 73, where there were several actions for similar 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 by the record before us in this case. ’ ’ It results that the judgment must be affirmed. All concur.