City of King City v. Duncan

238 Mo. 513 | Mo. | 1911

Lead Opinion

KENNISH, P. J.

This is an appeal from the circuit court of Gentry county. Appellant was convicted in the police court of King City, a city of the fourth class in said county, for the violation of an ordinance prohibiting the carrying of concealed weapons, and appealed from the judgment to the circuit court. Upon a trial de novo before a jury of twelve, a ver- ’ diet of guilty was returned, concurred in by ten members of the jury only. The court received the verdict, pronounced judgment, and the defendant appealed to the Kansas City Court' of Appeals. Upon the ground that a question involving the construction of the Constitution of this State was presented, the case was transferred to this court. The appellate jurisdiction, of this court is not challenged, and but one question is relied upon by appellant for a reversal of the judgment. That question is, Was the appellant, upon appeal to the circuit court, entitled to a trial under the rules of criminal procedure applicable to tbe trial of misdemeanors, including" proof of guilt beyond a reasonable doubt and a conviction only upon the unanimous verdict of tbe jury, or was tbe respondent entitled to a trial under tbe rules of civil procedure, including proof as required in civil cases and a conviction upon three-fourths of tbe members of tbe jury concurring in tbe verdict?

In cases too numerous to make citations necessary, tbe appellate courts of this State have consistently held that a prosecution for a violation of a city ordinance is a civil and not a criminal case. And it was formerly provided by statute that such offenses should be tried as civil cases. [G. S. 1865, sec. 16, p. 242; Wag.’s Stat. 1872, sec. 16, p. 1318.]

By'the amendent to the Constitution of this State adopted in 1900 (art. 2, sec. 28) it was provided that in civil cases a two-thirds majority of the members of the jury may render a verdict in courts not of record, and in courts of record three-fourths of the members of the jury concurring may render a verdict. The trial court in this case doubtless assumed that, as under the authorities in this State the case on trial was a civil case and as the fundamental law provides that in all civil cases “three-fourths of the jury concurring may render a verdict,” a verdict of guilty concurred in by ten members of the jury was sufficient in law, and accordingly received the verdict and rendered judgment thereon.

On tbe other band, it has been persistently, maintained that a prosecution for tbe violation of a city ordinance, and especially when tbe offense charged is also a criminal offense under tbe public laws of this1 State, is essentially criminal in character, and as a judgment of conviction is followed by fine or imprisonment or both, and may be introduced in evidence as a conviction of “a criminal offense,” for the purpose of impeachment, it is contended, and not without reason, that a person on trial under such a charge should he entitled to the presumption of innocence and to such constitutional and statutory guaranties as attend one accused of crime under the general law.. The theory that such a prosecution is a civil case and must be tried as such, leads to the following anomalous result: After appellant had been convicted in the circuit court it was competent for the State to place him on trial upon an indictment or information for the same offense, and if he testified in his own behalf the State would then have had the right to introduce it in evidence against him, to impeach him as a witness, the former conviction under the city ordinance for the same offense, upon the ground that it was a criminal offense, although tried as a civil case and determined by a three-fourths verdict. The law as to the presumption of innocence and proof of guilt beyond a reasonable doubt would then be of little avail to the defendant when he would stand before the court and jury “condemned already” for the same offense and by the judgment of the same court.

This seeming conflict in the law has arisen, we think, because of a misunderstanding of the constitutional and statutory provisions applicable in such cases. The civil cases which come within the meaning of section 28, article 2, of the Constitution, in which “the right of trial by jury, as heretofore enjoyed, shall remain inviolate,” and in which “three-fourths of the members of the jury concurring may render a verdict,” clearly were not intended to include prosecutions originating in police courts, for violations of municipal ordinances, for, as to such cases, the constitutional right of trial by jury never existed. [Delaney v. Police Court, 167 Mo. 667; City of Marshall v. Standard, 24 Mo. App. 192; 24 Cyc., pp. 107, 144, 145; 6 Am. & Eng. Ency. of Law (2 Ed.), 978.] In the case of Delaney v. Police Court, supra, l. c. 678, this court said: “The right of trial by jury for violation of mere municipal police regulations is not and never was contemplated by tbe Constitution of this State.” We may therefore assume that the constitutional amendment of 1900 did not have reference to such civil cases as arose out of violations of municipal ordinances and in which the right of trial by jury was, not guaranteed.

It was within the power of the Legislature, there being no constitutional limitation to the contrary, to establish the tribunal for the trial of violations of municipal ordinances; to allow or to deny an appeal from the judgment of such tribunal; and, having the power to allow an appeal, it also had the power to prescribe the procedure in the appellate court. [Cooley’s Constitutional Limitations (7 Ed.), 459; 8 Cyc. 822; 11 Cyc. 739; 2 Dillon on Municipal Corporations (5 Ed.), sec. 757 and notes; Petition of Perrier, 103 Ill. 367; Golden City v. Hall, 68 Mo. App. 627; City of Cassville v. Jimerson, 75 Mo. App. 426; City of Tarkio v. Loyd, 109 Mo. App. 171; Ex parte Harker, 49 Cal. 465.]

The law governing trials for violations of city ordinances of cities of the fourth class was amended in 1895' so that since then, in prosecutions in the police court, the accused is entitled to trial by jury as in prosecutions before justices of the peace. And in case of conviction he is entitled to an appeal to the court having criminal jurisdiction, in which court the case shall be proceeded with “in the same manner as is-provided in cases of .appeals from judgments of justices of the peace in cases of misdemeanor.” [R. S. 1899, secs. 5928 and 5937; R. S. 1909, secs. 9334 and 9343.] And in 1907 an act applicable to municipalities generally was passed by the Legislature (now sec. 95, R. S. 1909) providing that: “Appeals from police courts and for violation of an ordinance of a city, town or village shall be in the nature of a criminal appeal from a justice of the peace. . .

Section 9343, supra, as originally enacted in 1895, was in force when the constitutional amendment of 1900 was adopted. It was not repugnant to such amendment for the reason that the amendment did not change or affect the procedure in criminal cases, either in courts of record or in courts not of record, and, as before shown, it did not include or affect civil cases, originating in police courts, for violations of municipal regulations, the cases to which alone this statutory provision referred. Therefore the constitutional amendment did not abrogate said Act of 1895', carried into the revision of 1899, and now a part of the present Revised Statutes of this State. This law expressly provides, as we think it was within the power of the Legislature to provide, that in case of an appeal from the judgment of the police court to the court having criminal jurisdiction, the defendant shall be entitled to a trial under the same procedure prescribed by law in case of appeals from judgments of justices of the peace in misdemeanors. That means that the accused is clothed with the presumption of innocence; that he can be convicted only upon proof of guilt beyond a reasonable doubt and upon the unanimous verdict of a jury. Such prosecutions remain, as this court has so many times decided, civil cases, in that a trial does not place, the accused in jeopardy so as to bar a: subsequent prosecution under the laws of the State for the same offense. But they are so closely related to criminal cases, and the consequences of a conviction are so nearly identical with those of a conviction of crime, that the Legislature provided, and we think wisely, that they should be tried under the same procedure.

Section 7280, Revised Statutes 1909, provides that: “In all trials of civil actions in any court of record in this State a jury shall consist of twelve men possessing the qualifications as are or may hereafter be provided by law: Provided, that three-fourths or more of the jurors concurring may return a verdict, which shall have the same force and effect as though rendered by the entire panel. If a verdict be rendered by the entire panel the foreman alone may sign it, but if rendered by a less number than the entire panel such verdict shall be signed by all the jurors who agree to it.”

This statute was • enacted in 1901, pursuant to the constitutional amendment on the same subject, and to make the practice conform to the change made in the procedure in jury trials by such amendment. It was not intended to repeal the Act of 1895 governing the trial of police court cases, as is evidenced by the fact that the latter act was carried into the revision of 1909', as also by the Act of 1907, making substantially the same provision as to the trial of cases on appeal from the judgment of a police court of any city, town or village.

As the case was not tried in accordance with the views herein expressed, the judgment is reversed and the cause remanded.

Ferriss, J., concurs; Brown, J., dissents in a separate opinion.

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Dissenting Opinion

DISSENTING OPINION.

BROWN, J.

I find myself unable to concur' in the majority opinion prepared in this case by my 'learned associate, Judge Kennish.

Suits for the collection of fines and penalties for violating city ordinances have been classified as civil actions since the earliest judicial history of our State. [City of St. Louis v. Smith, 10 Mo. 439; Ex parte Hollwedell, 74 Mo. 398.]

In 1900 the electorate • of this State adopted an amendment to our Constitution which reads as follows:

“The right of trial by jury, as heretofore enjoyed, shall remain inviolate; but a jury for the trial of criminal or civil cases, in courts not of record, may consist of less than twelve men, as may be prescribed by law; and. that a two-thirds majority of snch number prescribed by law concurring may render a verdict in all civil cases. And that in the trial by jury of all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict. ’ ’ [Sec. 28, art. 2, Constitution of Missouri.]

This constitutional amendment was self-enforcing. [Sharp v. Biscuit Company, 179 Mo. 553.]

The cumbersome nature of our judicial procedure has always been a source of great annoyance and expense to the people in enforcing snch civil rights and police ordinances as are necessary for the protection of their lives and property.

Prior to the amendment to our Constitution hereinbefore set out, a litigant with a meritorious case was often confronted with a mistrial because of one or two contrary men on the jury. Such a mistrial always resulted in delay; and not infrequently, before a second trial could be had, the witnesses were absent or dead, and the litigant thereby -altogether failed to obtain the relief to Which he was entitled. It was undoubtedly to prevent such delays that the people adopted the aforesaid amendment to the Constitution.

It is quite true, as said by my learned associate, that section 9343, Revised Statutes 1909, enacted in 1895, prescribes that actions appealed from the mayor or police judge to the circuit court shall upon such appeal be tried in the same manner as appeals from justices of thu peace in cases of misdemeanor, which of course means a trial by twelve jurors. However, I fail to find anything in said constitutional amendment indicating an attempt to restrict its provisions to any particular class of civil actions; consequently, in my judgment, it modified or repealed section 9343, Revised Statutes 1909, and all other statutes which' conflicted with its provisions.

In the case of Kansas City, Fort Scott and Memphis Ry. Co. v. Thornton, 152 Mo. l. c. 575, this court said: “It is the duty of the courts to enforce the organic law, and to brush aside any statute which conflicts with it, whether it was passed before or after the Constitution was adopted. ’ ’

The fact that a defendant may be branded as a criminal by a conviction of violating a city ordinance does not appeal to me as a good reason for the conclusion reached by my associates.

The penalties inflicted for violating city ordinances usually do not exceed a fine of $100, which is insignificant, compared with the serious consequences of many civil actions wherein a verdict returned by three-fourths of the jury may deprive a citizen of his home or all his property.

It is my opinion that all laws and constitutional provisions intended to expedite the administration of justice should be liberally construed, and that the judgment in this ease should be affirmed.