86 Mo. App. 642 | Mo. Ct. App. | 1901
The defendant filed a plea of his conviction in the municipal court in bar of the prosecution in the circuit court. On the agreed statement of facts the court found this plea insufficient, found the defendant guilty, and sentenced him to pay a fine. Erom this sentence he appealed.
The only error relied upon by appellant for a reversal of the judgment, is the finding by the court against the defendant on his plea in bar. In State v. Simonds, 3 Mo. 292, it was held that an individual who had been punished under the corporate authority of the city of St. Louis for keeping a roulette table, could not be indicted in the state courts for the same offense. In State v. Payne, 4 Mo. loc. cit. 378, it is said that the case against Simonds, supra, was a case of concurrent jurisdiction. In State v. Cowan, 29 Mo. 330, it was held that if a municipal corporation, being authorized thereto, should take cognizance of an act made an offense .by its ordinances ánd punish one for the violation of the ordinance, a person thus punished could not be subjected to prosecution again under the general law of the State for the same offense. In State v. Thornton, 37 Mo. 360, the cases of State v. Simonds, and State v. Cowan are cited and followed. In the city of Pilot Grove v. McCormick, 57 Mo. App. loc. cit. 534, the Simonds, Cowan and Thornton cases were cited and followed by the Nansas City Court of Appeals. In the same volume, page 579, in the case of State v. Freeman, the same court held that “when a defendant has been, under due form of law, convicted in either municipal or state court of assault and battery, he could not again be convicted of the same offense in the other. In the City of St. Louis v. Caffaratta, 24 Mo. 94, the defendant was convicted for the violation of a city ordinance of the city of St. Louis for keeping open his place of business on Sunday after the hour of nine o’clock a. m. The statute law on the same subject permitted the sale of -necessaries by one following the occupation of defendant, during any hour of the
The decisions outside of our own State are, on this question, inharmonious, but the weight of authority elsewhere seems to favor the rule that an acquittal or conviction under a city ordinance is no bar to a prosecution for the same ofíense by the State (See 2 Am. and Eng. Ency. of Law, page 958 and note). Eor the reasons herein stated, we affirm the judgment. One of the judges of this court, being of the opinion that this decision is opposed to State v. Simonds, State v. Cowan and State v. Thornton, requests the the cause be certified to the Supreme Court, which is accordingly done.