44 Mo. App. 125 | Mo. Ct. App. | 1891
The following facts appear from the petition, return and admissions made upon the hearing. The petitioner was brought before the mayor’s court of Rolla on a warrant for his arrest, charging him with the violation of a city ordinance. He was arraigned, pleaded not guilty, aiid demanded a jury trial. His case was continued to a subsequent day; a venire was issued for a jury to try him on .that day ; and in the meantime he was permitted to go at large, without being put under a recognizance. On the day set for his trial he did not appear either in person or by agent or attorney, and the jury was impaneled in his absence, heard the evidence, found him guilty and assessed his punishment at a fine of $1 and costs. The mayor thereupon issued an execution with a capias clause ( such a writ being provided for by the ordinances of the city of Rolla), and the marshal, not finding property whereon to levy the execution, took the body of the petitioner into his custody, as commanded by the writ, and imprisoned him in the calaboose of the city. The petitioner thereupon sued out a writ of habeas corpus, and was brought before the circuit judge’ of Phelps county, who, upon the hearing, remanded him to the custody of the marshal. When so remanded, the petitioner tendered property sufficient to satisfy the execution against him, but the marshal declined to levy the writ on such property, claiming that he had no power to do so, after he had taken the petitioner’s body. The detention of the petitioner under these circumstances is claimed by him to be an illegal restraint, for the following reasons :
But the trial of the petitioner was not one in a criminal proceeding. The offense for which he was tried is one created by ordinance, and its punishment cannot exceed a fine of $15. That proceedings by municipal corporations in this state for a violation of their ordinances are to be governed by the rules applicable to civil proceedings, has been frequently decided, and the mere fact that the statute provides that in cities of the fourth class the original writ shall be a capias, instead of a summons, cannot of itself turn a proceeding, civil- in its character, into a criminal one. The mayor in these cities is a conservator of the peace, but his jurisdiction is confined to hearing and determining offenses against the ordinances of the city, and it is expressly provided that, as soon as it appears in the progress of any trial before him that an offense has been committed against the criminal laws of the
Nor can the fact, that the petitioner was not recognized to appear when the cause was continued after his arraignment, avail him. If his personal presence at the trial was not indispensable to render a valid judgment against him, the omission to take a recognizance from him for the purpose of seeming his personal attendance was at most an informality, which in nowise affected the jurisdiction of the court. How his rights were invaded because he was not held to bail, or in default thereof committed to prison in the first instance, is not conceivable.
It would seem from the marshal’s return that he claims to hold the prisoner as well for the non-payment
All the judges concurring it is ordered that the-prisoner be remanded to the custody of the .marshal. As he is now at large under bond filed in this court, awaiting the final determination of his petition, it is-further ordered that the bond so filed be transmitted to the mayor’s court at Rolla for such proceedings thereon, as the municipality may deem advisable.