Defendant was prosecuted under the Second Offender Act (§§ 556.280 and 556.-290) 1 for striking, beating and wounding a police officer of Riverside, Missouri, in violation of § 557.215, RSMo Supp.1967, V.A.M.S. The trial court, having conducted a hearing outside the presence of the jury, found the Second Offender Act applicable and sentenced defendant to imprisonment for two years after he was convicted by the jury of assaulting a police officer. Defendant appeals. We affirm.
This case comes to the writer on reassignment.
*362 The evidence, viewed most favorably to the State, would support these findings: Kenneth Ketcham was a part-time uniformed policeman of Riverside, Missouri, a city of the fourth class, and had so served for about four years. On the evening of September 23, 1966, he responded to a call to Kelly’s Tavern in Riverside. There had been some fights in the tavern but these occurred before the arrival of Ketcham. On arrival, he found the owner, Mr. Mc-Keon, Mrs. McKeon, and various patrons, including the defendant Briggs. Defendant was standing at the bar and his clothing was mussed up and disorderly, his eyes bloodshot, and his speech slightly slurred. McKeon pointed at the defendant. Ketch-am then told defendant that he was placing him under arrest and he would have to come along. Meanwhile, Sgt. Meyers of the Riverside Police Department, dressed in civilian clothes, also had come in and was standing there when this occurred. Defendant responded to Ketchum by saying, “You know what’s going to happen if we go out there” or “You know what you are going to get when you get outside”. Ketch-am responded that they could go one of two ways. Briggs then agreed to go outside and left the tavern, followed by Meyers and then Ketcham. Meyers had his hand on defendant’s arm.
The three of them had to go around a pickup truck on a parking lot to get to where the patrol car was parked. There were pipes or a ladder, or both, extending out beyond the tailgate. As they went around the end of the truck, defendant turned and hit Sgt. Meyers, who went to the ground when he tripped over the ladder. The defendant then stepped back and with his fist hit Ketcham on the cheek, causing a bruise. Ketcham then jabbed defendant in the ribs, with his baton and defendant continued to swing at and strike Ketcham with his fists. When Sgt. Meyers got up from the ground, he grabbed defendant and Meyers and Ketcham then subdued defendant and held him on the ground while they placed handcuffs on him. They then put him in the patrol car and took him to the police station.
Defendant thereafter was charged under § 557.215 with assaulting a police officer. A charge of drunkenness under the city ordinance was never filed.
Defendant’s first contention is that the court erred in not submitting the issue of punishment to the jury for the reason that the allegations of the information were insufficient to invoke the Second Offender Act.
Section 556.280 provides that the court may assess punishment where a defendant previously has been convicted of a felony and was “sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor * * Section 556.290 provides that convictions in states outside of Missouri also provide a basis for application of the Second Offender Act.
The information herein charged that defendant “on or about the 7th of January 1964, in the Superior Court of the State of California in and for the County of Imperial was duly convicted of the offense of escape and in accordance with said conviction was duly committed to the Youth Authority of the State of California and was subsequently discharged.”
These allegations are not a model to be followed, but we have concluded that they are sufficient to meet the requirements of the statute. The information alleges defendant’s conviction and that he then was committed to the Youth Authority and subsequently discharged. At the hearing conducted out of the presence of the jury on the issue of the applicability of the Second Offender Act the State introduced an authenticated copy of the proceedings in California. That document included the sentencing of defendant, as follows:
“THAT WHEREAS THE said STANLEY L. BRIGGS having been convicted by the court of the crime of ESCAPE FROM JAIL WITHOUT FORCE OR VIOLENCE
“IT IS ORDERED, ADJUDGED AND DECREED that the said STANLEY L. *363 BRIGGS be imprisoned in a California State Prison for the term prescribed bylaw.
“HOWEVER, execution of sentence is suspended and commitment is withheld and the defendant is referred to the California Youth Authority for acceptance.”
The transcript further shows subsequent commitment of the defendant to the California Youth Authority for the time prescribed by law. There was testimony that the defendant then reported on his parole to state probation and parole officers in Missouri under the Interstate Compact and was given a final discharge from the State of California on September 26, 1966.
The information herein is not comparable to the information in the cases of State v. Miller, Mo.,
Defendant objected to the introduction of the authenticated copy of the California proceedings on the theory that they disclosed that defendant received a suspended sentence and that such suspended sentence, under the authority of State v. Gordon, Mo.,
A second assignment by the defendant is that § 79.250 2 as it existed in September 1966, at the time of this incident, required a police officer of a fourth class city to be a resident and qualified voter of the city, and that Ketcham, being a nonresident of Riverside, was not qualified to serve as a police officer. Consequently, says defendant, no duties were imposed on Ketcham by law and defendant’s motion for judgment of acquittal should have been sustained.
It is clear that under the provisions of § 79.250, as they then existed, Kenneth Ketch-am did not possess the requisite residence qualifications to serve as a police officer at Riverside. However, the city had undertaken to appoint him as a part-time police officer some four years previously, and he had been acting regularly in that capacity. Under such circumstances, he was a de facto officer. In State v. Dierberger,
A third ground asserted for reversal by defendant is that Ketcham was making an unlawful arrest and defendant had a right to resist such an arrest. This contention is based on the assertion that Ketch-am had no warrant for arrest of the defendant, was not arresting for a felony, and did not observe defendant commit a misdemeanor or violate a valid city ordinance in the officer’s presence.
There is no contention by the State that Ketcham had a warrant for defendant’s arrest or that the defendant was arrested in the tavern for commission of a felony. Ketcham testified that he arrested the defendant for drunkenness in violation of a city ordinance. The City of Riverside had an ordinance adopted April 17, 1956, which provided as follows: “It is hereby decreed to be unlawful for any person to become drunk or to so conduct themselves as to be disorderly within the limits of the City of Riverside.” Defendant asserts that this ordinance does not limit its application to public drunkenness, is unconstitutional as an invasion of privacy and amounts to a denial of due process under Article XIV of the United States Constitution and Article I, § 10 of the Constitution of Missouri, V.A.M.S. He claims that any man has a right to become drunk in his own home, that it becomes a matter of public concern only when the intoxication concerns other members of the public or occurs in public places, and that an ordinance which purports to prohibit drunkenness at any and all places in the city is unconstitutional. A similar ordinance, he says, was held unconstitutional in City of St. Joseph v. Harris,
There was evidence by Ketcham, Sgt. Meyers and Mrs. McKeon which would justify a finding that defendant was drunk. This was in the presence of the officer. Section 80.410 provides that a police officer shall have the right to arrest without process for violation of a city ordinance where the violation of the ordinance is committed in his presence. This is an old statute and was followed in the early case of Village of Oran v. Bles,
The State asserts that the ordinance of Riverside is distinguishable from that held unconstitutional in City of St. Joseph v. Harris, supra, and is constitutional. Secondly, the State says that if it is not distinguishable, then the St. Joseph case should be overruled. It also contends that even if the ordinance is unconstitutional, the defendant had no right to resist arrest by Officer Ketcham. We are of the opinion that this third contention of the State must be sustained and hence we need not consider the constitutionality of the ordinance.
' The City of Riverside had adopted in 1956 the ordinance making drunkenness an offense. So far as the record here discloses, the constitutionality of the ordinance had never been attacked. Under such circumstances, it would not have been proper for a police officer of the city to take it upon himself to pass upon the validity of the ordinance. Until repealed or held invalid by a court of competent jurisdiction, it was the duty of the officer to enforce the ordinance. Likewise, it was not the *365 right of an individual to resist arrest on the basis of a contention that the law he allegedly was violating was unconstitutional or invalid for some other reason. A defendant may raise that question as a defense to the charge and have the validity or constitutionality of the statute or ordinance determined, and he will be acquitted if his claim of unconstitutionality or invalidity is sustained. Courts are established and available for the purpose of determining such questions. Such procedure is an integral part of an orderly society under a government of law. f"To permit persons to resist arrest and attack an officer and then be excused if they successfully question the constitutionality or validity of a statute or ordinance would lead to chaos and would be intolerable. This being true, when one resists arrest, as here, and strikes and wounds the officer, he is subject to criminal prosecution for violation of the statute which prohibits such attack on an officer engaged in the performance of the duties of his office. This is true even if the ordinance is determined subsequently to be unconstitutional. 3
The foregoing conclusion is in harmony with this court’s decision in Manson v. Wabash Railroad Co., Mo.,
Finally defendant asserts that Instruction No. 7, which was the State’s main verdict-directing instruction, was bad because it did not require a finding that Ketcham was “actively engaged in the performance of duties imposed on him by law,” language used in § 557.215 as well as in the information filed against the defendant. In arguing this point, defendant again contends that he had the defenses that Ketcham was not a resident of Riverside and hence not a qualified officer, and that he was not making a lawful arrest since the ordinance under which he acted was allegedly unconstitutional. What we already have said disposes of both of these contentions. Fur *366 thermore, while the instruction did not use the exact language of the statute, it did require a finding that officer Ketcham “was actively engaged in the performance of the duties of a police officer,” and this was sufficient to require a finding by the jury that the officer was performing those duties imposed on him by law. We find no merit in this assignment.
Judgment affirmed.
Notes
. All statutory references are to RSMo 1959, V.A.M.S., unless otherwise indicated. 435 S.W.2d — 23½
. This section was amended, Laws 1967, p.-, S.B. No. 39, § 1.
. A similar conclusion has been reached in cases where defendant is charged with escape and he asserts that he is entitled to release because of some claimed defect in the ease against him. State v. Hart, Mo.,