Kansas City v. Neal

49 Mo. App. 72 | Mo. Ct. App. | 1892

Smith, P. J.

The defendant, Carrie Neal, was tried and found guilty before the police judge of Kansas City, upon an information based upon section 1075 of the ordinances of said city. She took an appeal to. the criminal court of Jackson county, and for that purpose with the other defendant, Stephens, entered into a recognizance conditioned as provided in sections 6328 and 6329, Revised Statutes, 1889. Upon a trial anew in the criminal court the defendant, Carrie Neal, was again found guilty, and judgment was rendered against. her and the said Stephens, the surety on her recognizance, under the provisions of section [6549, Revised Statutes. Prom this judgment the defendant, Carrie Neal, did not appeal. The defendant. Stephens filed a motion to set aside the judgment and to quash the execution issued thereon, which motion being overruled, he appealed.

I. The appealing defendants assails the judgment on several grounds, the first of which is that the specific acts of vagrancy charged in the information do not fall within the statutory definition of that offense. R. S., secs. 3841, 3846, 3847. The English vagrants’ act, statute 5, Q-eo. IV., as amended by 1 and 2, Viet. O. 38, form the basis of similar legislation in many of the states of the union. Our statutes, as will be seen by reference to the sections already referred to, are quite comprehensive on the subject of vagrants. Their specifications are much more extensive than those of the common law. 4 Blackstone’s Commentaries, 169. The state has granted to the city by its charter, subdivision 24, section 1, article 3, the express power to restrain and punish vagrants and to define who shall be considered vagrants. It is not perceived that the provision of the ordinance of the city is in anywise out of harmony with the statutory provisions on the same subject. The rule is that when it can be seen that the exercise of any jurisdiction by the corporation can be clearly brought within the scope of the grant, without a violation of the constitution or a conflict with the laws of the state, there can be no objection to its exercise. St. Louis v. Bentz, 11 Mo. 61; St. Louis v. Schoenbusch, 95 Mo. 618. It has long been settled in this state that municipal corporations may by ordinance prohibit acts which are made misdemeanors under the general statutes of the state, and for a violation of such ordinances may maintain a proceeding in their own name to impose and collect a fine. St. Louis v. Cafferata, 24 Mo. 94; State v. Cowan, 29 Mo. 330; Independence v. Moore, 32 Mo. 392; Ex parte Hollwedell, 74 Mo. 395; St. Louis v. Schoenbusch, supra; St. Louis v. Bentz, supra.

The ordinance in question provides that any person misbehaving, as therein specified, shall be considered and treated as a vagrant, It was, doubtless, designed to reach certain vagrants not specifically embraced in the general statutes. St. Louis v. Schoenbusch, 95 Mo. 618. And it is, therefore, within the grant of the charter to define who shall be considered and treated as vagrants. It is at most a local regulation of the same subject not in conflict with the general statutes. The offense defined in the ordinance is not essentially the same as that defined in section 3485, Revised Statutes; that section does not relate to vagrants at all. Yagrancy, under the statute, is but a misdemeanor, and, therefore, according to the authorities already cited may be the subject of local regulation. The offense charged in the information was not a criminal offense in the meaning of the constitution. Marshall v. Stanard, 24 Mo. App. 192; Ex parte Hollwedell, 74 Mo. 395.

II. It is further contended that the police judge was without jurisdiction, for the reason that the ordinance on which the prosecution was based provides that the offender, “upon conviction before the recorder,” etc. The' answer to this is that section 15, article 4, of the charter, provides u there shall be a police judge,” and section 17 of the same article further provides that he shall have exclusive jurisdiction over all cases arising under any ordinance of the city,” etc. The jurisdiction of the police judge is, by said charter provision, made exclusive over all cases arising under, the ordinance of the city. The offense charged arises under an ordinance of the city, and was, therefore, within his jurisdiction, so that this contention of defendants cannot be sustained.

III. The defendants’ further contention is that 'the finding of facts by the judge of the criminal court did not warrant the judgments. We are not aware of any statute making the provisions of section 2155, Revised Statutes, applicable to the said criminal court. The finding of facts is not embraced in the judgment,, nor can we regard such finding as part of the record proper in the case. We have only to deal with the judgment which is regular upon its face. The defendant, Carrie Neal, is not appealing, and if she were we could not review the finding of the criminal court in the absence of the evidence. Every presumption must be indulged in favor of the correctness of the finding and judgment of the court.

IV. The defendant finally contends that the judgment against him is contrary to law. It is a sufficient answer to this to state that section 17, article 4, of the charter expressly provides that “appeals in cases tried before the police judge shall be taken up and granted in the same manner as appeals from justices of the peace in civil cases, and section 1, of article 17, provides that all the ordinances in force at the adoption of tin's charter take effect, and shall remain in force, until repealed, etc. Section 904, chapter 43, revised ordinances of 1888, provides that appeals shall be granted upon giving like bond and affidavit, and within the same time as required on appeals from justices of the peace in civil cases. The provision of the statute, in relation to the appeals from justices of the peace, were thus adopted and became a part of the by-laws of the city. City of Kansas v. O'Connor, 36 Mo. App. 594.

Turning to sections 6328 and 6329, Revised Statutes, it will be seen the recognizance and the judgment thereon were proper. No notice was required by the statute to be given defendant before the rendition of the 'judgment. The charge of which the defendant, Carrie Neal, was found guilty was the infraction of an ordinance of the city. The action while penal was not criminal. It was in its nature a civil action to recover a penalty, and the mode and manner of taking an appeal, in such cases, is by the terms and provisions of the charter and ordinance of the city prescribed by the statutes just referred to. City v. Clark, 68 Mo. 588; City v. Knox, 74 Mo. 79. The law relating to the enforcement of recognizances in criminal cases has no sort of application to a case like this.

It results that the judgment of the criminal court will be affirmed.

All concur.