City of Salisbury v. Patterson, 24 Mo. App. 169

24 Mo. App. 169 | Mo. Ct. App. | 1887

Ellison, J.

This is a prosecution commenced before I. Morehead, mayor of Salisbury, based on an oral complaint of the marshal. Conviction, and appeal to the circuit court. Motion to dismiss for insufficiency of complaint, and for want of jurisdiction. Motion overruled. Defendant excepted and refused to prosecute his appeal further. Appeal dismissed and defendant brings the case here.

The following is the complaint as entered in the mayor ’ s docket:

“ City of Salisbury )

vs. )

“R. A. Patterson. )

Before I. Morehead, Mayor of the city of Salisbury, Chariton county, Mo.

“This isa complaint made by Stephen Crawford, marshal of the city of Salisbury, against the defendant, It. A. Patterson, of carrying on the streets of Salisbury a concealed weapon, to-wit, a pistol; ’ and also charged defendant with hindering said Crawford, and attempting to hinder him from the discharge of his official duty, to-wit, from arresting one George Puller on the night of the twenty-ninth of November, 1884.”

Defendant was tried in the mayor’s court before a jury, which was summoned at his instance. Under the case of The City of Marshall v. Standard (post, p. 192), he was not entitled to a jury.

The motion to dismiss the case should have been sustained for the reason that the complaint is not sufficient upon which to bottom a prosecution. It is too indefinite, vague, and uncertain. It refers to no ordiuanee as having been violated, and as to the second charge it does not even state the offence to have occurred in the city of Salisbury. State ex rel. Town of Neosho v. Baker, 74 Mo. 394; City of St. Louis v. Fitz, 53 Mo. 582, 587; Dillon on Mun. Corp., sec. 414; White v. City of Washington, 2 Cranch C. C., 337; Boothe v. Georgetown, Ib. 356.

II. The complaint, I think, is fatally defective for another reason. By force of section 4983, it need not be in writing if made by the marshal, his assistant, or a policeman, provided, “the defendant be present in court, and in custody.” It is essential that these facts appear in the record or docket entry of the verbal complaint. Under no other circumstances has . the mayor authority to act on a verbal complaint. This complaint, while disclosing that it is made by the marshal, does not show the defendant to be in court and in custody.

.When the complaint is made by one of the designated officers it need not be in writing, the party being in custody and in court, yet there should be such an one verbally, that the defendant may know what it is he is called upon to answer, and what ordinance he is charged with violating. And this should be entered in the mayor’s docket. Otherwise there, would be no safety for an- accused, and if he desired to appeal it would not be known from what he was appealing. This statute is in derogation of the common law and should be strictly construed. At common law no trial for any offence, except contempts, could ever be had except upon written complaints. These were indictments or informations. “ Summary prosecution and summary convictions, except for contempts, were unknown to the common law.” Prell v. McDonald, 7 Kas. 426, 450. It must appear that the magistrate ‘ ‘ hath strictly pursued that power, otherwise the common law will break in upon and level his proceedings,” and “there must be a record of the whole proceedings wherein the justice must set forth the particular mannei and circumstances, so as, if he be called to account for the same by a superior court, it may appear that he has .conformed to the law, and not exceeded the bounds prescribed to his jurisdiction.” Commonwealth v. Borden, 61 Pa. St. 272. The complaint, when entered, should show the mayor had jurisdiction by alleging the existence of those facts upon which his authority to act depends.

The judgment is reversed and the case dismissed.

All concur.