Thomas v. Yazoo City, 48 So. 821

Thomas v. Yazoo City

48 So. 821 | Miss. | 1909

Lead Opinion

Fletcher, T.,

delivered the opinion of the court.

This appellant was charged in the mayor’s court of Yazoo City with the unlawful sale of whiskey, and, being there convicted, appealed to the circuit court. On the trial in the circuit court the city not only proved the same sale relied on in the mayor’s court, but an additional sale, made some six months previously. The court declined to compel the city to elect one of these sales upon which to stand, and charged the jury that, if either sale had been proven, then the jury was authorized to convict. *402Several objections were then made to the validity of the city ordinances, all of which were overruled. From a conviction in the circuit court, this appeal is prosecuted.

Many of the questions presented by this record were before the court in the case of Booze v. Yazoo City, 94 Miss. 428, 48 South. 820, and it was said in the opinion in that case that these contentions were without merit. Although this has been expressly decided, we deem it not amiss to refer to these points more in detail.

It 'is said that the compilation of the ordinances of Yazoo City known as “Holmes’ Code” should not have been admitted in evidence, because it did not contain any certificate of the clerk as to its official character. But we think this defect, if it may be so called, was cured by permitting the city clerk on the trial to supply the missing certificate.

It is made ground of objection that the charter of Yazoo City gave no power to the city council to prohibit the sale of intoxicants. But article 11 of the charter expressly confers the power “to restrain, prohibit, or suppress tippling houses, dram-shops, gaming, gambling houses, houses of ill fame, and all other disorderly houses.” By article 20 of the charter power is given to “ordain all needful laws for preventing and suppressing all crime, obscenity, profanity, drunkenness, and other disorderly conduct.” It is said that the power to suppress does not authorize an entire prohibition of the sale of whiskey, but only permits disorderly and improper houses to be suppressed. But the case of Corinth v. Crittenden, 94 Miss. 41, 47 South. 525, dealing with pool rooms in a special charter town, is a complete answer to this contention, and the reasoning of that opinion need not be repeated.

It is said, again, that Yazoo City cannot institute a criminal prosecution, since there is no mode of procedure provided in the ordinance for inaugurating such a prosecution. But this court has held in Telheard v. Bay St. Louis, 87 Miss. 580, 40 South. 326, that a prosecution for a violation of a municipal *403ordinance is governed by tbe provisions of section 26 of tbe constitution of 1890, and in effect that in such prosecutions there must be a complaint in writing, which shall specify the nature and cause of the accusation. So it would appear that, in the absence of any ordinance regulating the procedure, an affidavit, or at least some definite description of the offense, is demanded by the terms of the constitution.

We cannot yield to the earnest argument that the penalty prescribed by the Yazoo City ordinance is so severe as to constitute cruel and unusual punishment. True, it provides a minimum punishment far in excess of the minimum punishment carried by the state law; but by article 30 of the charter large powers are conferred upon the city in enforcing its police powers. It must necessarily be left largely to the discretion of the city as to what penalties are imposed for violating its police ordinances.

This brings us to the consideration of the principal questions urged upon the attention of the court, which questions are not involved in the Booze case and are peculiar to the case now under consideration. It is earnestly argued that it was error for the circuit court to permit evidence to go to the jury of any sale of intoxicating liquor except the one counted on and proven in the mayor’s court. Especially is it said that the court erred in charging the jury to convict if the jury believed that either of the two sales had been proven. The argument is that Code 1906, § 1762, is but a rule of evidence, and that its provisions must be construed so as to harmonize with the holding of this court in cases like Hudson v. State, 73 Miss. 784, 19 South. 965. Therefore counsel contend that the state must select one particular sale upon which to predicate a conviction, and that proof of other sales should be considered merely as evidence of the defendant’s guilt. If this view be correct, 'it is evident that the court fell into error in giving the second and third instructions for the state.

This question has been before the court more than once, and *404convictions resting upon evidence of several sales have been affirmed without written opinions, and that, too, in cases where the court declined to put the state t.o an election. The view which has controlled the court, and which is now for the first time set out in a written opinion is that Code 1906, § 1762, amounts to far more than a rule of evidence. This conclusion is unescapable, when proper weight is given to that part of the statute which provides: “But in such cases, after conviction or acquittal on the merits, the accused shall not again be liable to prosecution for any offense of the same character committed anterior to the day laid in the indictment, or in the affidavit.” If it be true that the defendant is tried for making a single sale, then no reason can exist for making a conviction a bar to subsequent prosecution for any offense committed within two years of the date laid in the indictment. When this statute is considered in connection with the general statute on the subject, it would seem clear that the rule announced in such cases as Hudson v. State, supra; Naul v. McComb City, 70 Miss. 699, 12 South. 903, and Ware v. State, 71 Miss. 204, 13 South. 936, has been abrogated. To some extent the very essence of the offense has been materially changed. We think that, as the law stands now, its effect is to make the sale of intoxicating liquors stand upon the same basis as a nuisance. In other words, it-is now unlawful for any person to sell liquors, and the offense is made out by proof of sales, however few or numerous they may be, provided they are committed within two years prior to the time laid in the indictment. It is, of course, perfectly manifest that, if this view be correct, there can be no objection to the statutory provision permitting proof of several sales, and authorizing conviction if the jury believes that any or all have been made. The case is analogous to a prosecution for keeping a gambling house, or a bawdy house, or any other series of acts which are injurious to public morals. In all these cases the substantive offense may be proven by showing individual, though isolated, acts.

*405It is said, however, that if this be the correct view of the law this case must be reversed because by no ordinance of Yazoo ■City has there been any adoption of Code 1906, § 1752, which it is said applies only to prosecutions by the state. We think this is taking too narrow a view of the scope and evident meaning of the statute. It should be borne in mind that this court has decided, in the case of Telheard v. Bay St. Louis, supra, that prosecutions under municipal ordinances are subject to the provisions of the constitution. If a person charged with violating a city ordinance is entitled to the protection guaranteed to persons charged with crime by the provisions of the constitution, it must further follow that he is subject to statutory provisions dealing with the identical crime, whether it is sought to be fastened on him by state or municipal authority. Now, Code 1906, § 1762, provides that, in the trial of all prosecutions for violating the liquor laws, proof may be given of more than one violation. We think this language is as much 'applicable to a prosecution under a city ordinance as is the language of section 26 of the constitution. It is true that the statute provides that “the state shall not be confined to the proof of a single violation,” etc.; but this word “state,” we think, is used in a general sense to designate any authority in the name of which the prosecution is carried on. It is broad enough to embrace, not in its terms, but in its meaning, a municipal corporation seeking to punish for the violation of its ordinances, as well as the state prosecuting under the ordinary criminal statutes.

Affirmed.

Concurrence Opinion

Whit yield, O. J.,

delivered the specially concurring opinion.

Yazoo City is operated under a special charter granted by the legislature in 1884 (Laws 1884, p. 566, c. 405). Articles 21 to 30 of that charter show the establishment of a city court, and show the purpose of the legislature to have been to *406create within the corporate limits a tribunal, a city court, similar in all respects to justice courts, in the administration of the law. Article 22 of the charter provides: “And the mayor shall have and exercise all the powers and jurisdiction of a justice of the peace of said county and also jurisdiction of all causes founded upon the breach or violation of any laws or ordinances of said city. Said mayor, in the exercise of said jurisdiction, shah . . . exercise all power that may be necessary and proper for the performance of his duties, and which a justice of the peace of said county may by law do in like cases.” Article 24 provides that all process of the mayor shall be issued and executed in the same manner and subject to the same regulations “that are by law established with regard” to that “of justices of the peace in said county.” Article 26 provides that said trials in the mayor’s court “shall be conducted according to the practice of the courts of common law, as modified by the statutes of this state.” Article 28 provides that any-party to a prosecution in the city court may appeal to the circuit court, and “all appeals from said city court to said circuit court shall be subject to the same rules of proceedings, trial and judgment that are by law prescribed in the ease of appeals from justices of the peace of said county to said circuit court.” Code 1906, § 87, provides: “In all cases of conviction of a criminal offense against the laws of the state, by the judgment of a justice of the peace, or by the mayor or police justice of a city, town, or village, for the violation of an ordinance thereof, an appeal may be taken to the circuit court of the county, which shall stay the judgment appealed from,” etc., and, further, that “in the circuit court the case shall be tried anew and disposed of as other cases pending therein.”

Notwithstanding these ample provisions it is insisted by the appellant that Code 1906, § 1762, can have no applications to trials in the city court of Yazoo City, until after a specific ordinance to that end shall have been adopted, even when the case is on trial in the circuit court on appeal from the judgment *407of the city court. The express provision of article 26 is that trials before the mayor shall be conducted according to the practice of courts of common law, as modified by the statutes of this state, and this provision makes it wholly unnecessary to pass any specific ordinance adopting Code 1906, § 1762. If that contention be sound, then it would be necessary also to adopt specific ordinances applying each state statute, modifying the practice under the common law, so as to make them available in the mayor’s court. This plainly cannot be sound. As shown in the brief of learned counsel for appellee, such a construction as is contended for by learned counsel for appellant in his behalf would require special ordinances adopting a statute permitting a defendant to testify in his own behalf, or the statute permitting a man’s wife to testify in his favor, or the statute permitting a witness to, be examined touching his conviction of any crime, or the statute limiting prosecutions to two years from date of commitment, and other statutes too numerous to mention. The very purpose of the articles which we have quoted from the charter was to make the practice in the mayor’s court just the same as the practice in the courts of common law, modifying such practice from time to time as the statutes of the state modify the practice in the courts of common law. There was no need of any special ordinance adopting Code 1906, § 1762. The charter itself created the court, and itself provided that that court’s procedure should be the same as that of the courts of common law, as modified by the statutes of the state, and this provision as to procedure was ample.

It would be an extremely curious state of the law 'if the máyor and council of Yazoo City could regulate the procedure in the circuit court on appeal from the judgments of the mayor’s court. There might, in such case, be one mode of procedure provided by the mayor and councilmen, applicable to appeals from the mayor’s court and another set of rules provided by the general law for the trial of cases appealed to *408the circuit court from courts of the justices of the peace, etc. This confusion was prevented by the provision of article 26, above quoted. Every change in the statute law which modifies the practice in the courts of justices of the peace ipso• facto modifies the practice in the city courts, and thus harmony and uniformity of procedure is secured; and this view of the matter seems to have been, ever since the granting of the charter in 1884, the one which has been practically accepted and acted upon. In McQuillan on Municipal Ordinances, p. 509, par. 326, it is said, citing authorities: “When police justices or municipal judges are invested with the same jurisdiction as justices of the peace, or trial justices,- the rules of procedure in ordinance cases are the same, unless provision is otherwise made by law.”

One of the chief arguments, insisted upon with great' ability by the learned counsel for appellant, is that Code 1906, § 1762, cannot be applied to the trial of cases in the mayor’s court; in Yazoo City, because such section creates more than a rule of evidence — in fact, creates a rule of substantive law — and whilst, if it had created a mere rule of evidence, it might, under well known principles; have been applied to the mayor’s court it cannot be so applied, since it creates a rule of substantive law. In varying form of expression and with great ingenuity this contention is urged. So far as the procedure in the trial in the mayor’s court is concerned, my view is that this section does' not create any more than a mere rule of evidence. It is a little difficult to make the meaning of the legislature clear, since they have most awkwardly added to the .body of the section, which relates to nothing but a rule of evidence, matters wholly foreign and alien, to wit, a legislative pardon. In other words, they have, in the most bungling fashion, annexed and tacked upon the body of the statute dealing with the rule of evidence, the last clause of which relates to a legislative pardon, a matter wholly alien to the original purpose and design of the statute, which was merely to provide *409a rule of evidence. My conception of the purpose of the legislature can be made plain by supposing Code 1906, § 1762, to be separated into two distinct sections, the first of which should embrace all but tbe last clause, and tbe second of wbicb should embrace tbe last clause only. Most undoubtedly then, tbe first section would create a mere rule of evidence, and tbe second would create a legislative pardon. In essence they are wholly distinct, tbe one from tbe other. Why, then, should tbe legislative blunder of putting two things, distinct in es.sence, in tbe same section, be held to have tbe effect of making tbe statute — ^undoubtedly one relating to a1 rule of evidence originally — one creating, not a mere rule of evidence, but a rule •of substantive law ? My view is that, so far as tbe conduct of a trial in tbe mayor’s court is concerned, the addition to Code 1906, § 1762, of tbe last clause about a legislative pardon has no effect whatever in changing tbe purpose and design of the legislature, wbicb was plainly to establish a mere rule of •evidence. I am therefore of tbe opinion that Code 1906, § 1762, so far as procedure is concerned, is to be treated as •creating a mere rule of evidence, and hence, under well settled principles, 'it was applicable to trials in tbe mayor’s court, special charter towns, and in all courts of justices of tbe peace, •or other courts of tbe state.

Taking article 28 of tbe charter of Yazoo City together with •Code 1906, § 87, it is clear that a case appealed from tbe mayor’s court to the circuit court shall be in tbe circuit court tried just tbe same as an appeal from tbe justice of tbe peace court would have been tried; in other words, tbe cases from both courts are tried de novo. Tbe contention that Code 1906, § 1762, permits evidence of all sales within tbe period of tbe bar of tbe statute of limitations, merely for tbe purpose of using other sales than tbe one on wbicb tbe party may be convicted as evidence tending to show tbe guilt of tbe party as to tbe sale for which be is on trial, and that this is the whole scope of the section, is unsound. Tbe fact that tbe code sec*410tion provides a legislative pardon as to all offenses is a perfect answer to this. The object of the legislature was to permit the conviction of the defendant on proof of any sale not barred by the statute of limitation, and then, since in the absence of compulsory election on the part of the state, it would be impossible to tell for which sale the defendant had actually been convicted or acquitted, to grant after verdict and conviction a legislative pardon as1 to all other prior sales, so that the defendant might not be twice tried for the same offense. I have written this much in order to, indicate clearly the view I have in this matter and my conception of the particular reasons-because of which I concur in the judgment of affirmance.