Stutsman v. City of Cheyenne, 113 P. 321

Stutsman v. City of Cheyenne

113 P. 321 | Wyo. | 1911

Scott, Justice;.

The plaintiff in error was tried and found guilty upon a complaint charging her with maintaining a house of ill fame in violation of an ordinance of the City of Cheyenne, which complaint was filed in the police court of the city on April 1, 1907. From the judgment she appealed to the District Court where the judgment was affirmed, and she brings the case here on error.

1. It is assigned as error that the court erred in holding the complaint sufficient and that plaintiff in error’s objection thereto is unfounded.' The transcript from the police magistrate certified to the District Court on appeal shows that this question was not raised in the police court. From the record of the proceedings in the District Court it is recited that “At the conclusion of the reading of the transcript argument was had upon the case, appellant contending as follows, to-wit: * * * 2. That the information was insufficient in not using the words ‘unlawful’ and ‘knowingly’.” The word “information” is improperly used and was doubtless intended as complaint, for the plaintiff in error was not prosecuted by information but upon complaint by and in the name of the city. The words “knowingly” and “unlawfully” are essential in charging a crime when knowledge is an element of the crime charged. (Secs. 503, 522, Bishop New Cr. Proc.) The offense here charged is not prosecuted either as a common law or a statutory offense. Neither word appears in the ordinance defining the offense. The ordinance provides that no such house shall be kept and maintained within the limits of the city and that one who keeps or maintains such a house, or who permits a house in his or her possession or under his or her control to be used and rented for such purposes shall be punished as therein provided. Knoweldge and the unlawful nature of the act are implied by the language of the ordinance. In the absence of an express allegation iri the complaint that *498the act complained of was unlawful and done with knowledge, its language imports that it was so done. It is charged that she did maintain within the limits of the City of Cheyenne a place for the practice of fornication, giving the street ■■and number of the house so . maintained and that such act was contrary to the provisions of the ordinance, and identifying the latter by title and date of its passage. If she maintained such a house it was unlawful within the provision of the ordinance, and she could not maintain such a house without knowledge of what she was doing. We are of the opinion that the complaint was sufficient to charge an ■offense under the ordinance.

2. It is contended that the finding, judgment and decision are contrary to the evidence and not sustained by sufficient evidence. There was evidence which if believed 'by the jury was sufficient to establish her guilt. The witnesses were before the jury who were the sole judges of the weight of the evidence and the credibility of the witnesses, and although such evidence was conflicting it was for the jury to say upon all the evidence whether she was guilty of the charge.

3. It is assigned as error that the District Court erred in holding that Section 1291, R. S. 1899 (Sec. 1383, Comp. Stat. 1910) providing that cases of this character shall stand for trial upon the transcript and that no trial de novo ■shall be had in the District Court is constitutional, and in holding that said section is not in violation of Sec. 9, Art. I of the Constitution of this State or of Sec. 10 of the same article, or of any other constitutional provision contrary to her contention that she was entitled to a trial de novo by a common law jury in the District Court upon her appeal.

This question was discussed in the opinion this day filed In a case between the same parties, and decided contrary to •plaintiff in error’s contention. The judgment will be affirmed. Affirmed.

Beaed, C. J., and PoTTER, J., concur.