76 Mo. App. 567 | Mo. Ct. App. | 1898
Defendant was arrested, tried and convicted of violating an ordinance of the village of Green City prescribing a fine against any one who should be “found intoxicated on the streets” of said village. On appeal to the circuit court the proceedings were dismissed on defendant’s motion and the village has appealed.
It is contended that the charter for towns and villages (chapter 30, article 6, Revised Statutes 1889) does not authorize or support the ordinance in question. In the city of Gallatin v. Tarwater, 143 Mo. 405; s. c., 44 S. W. Rep. 750, the supreme court upheld a similar ordinance. But in that «case a special charter of the city of Gallatin empowered the municipal authorities to prohibit and punish drunkenness in public places, and it is contended that there is no grant of that power by the legislature to villages. It is true that there is not found in the charter for towns and villages, any specially enumerated power to prohibit drunkenness. But we think sufficient authority for the support of such ordinance is found in the general police power possessed by such villages under section 1672, Revised Statutes 1889. That drunkenness in'the public places of a municipality is a matter of police regulation there can be no doubt. The mere fact that the power to suppress drunkenness is specifically stated in some charters, does not signify that it is not embraced in the general provision as to police power contained in charters which make no specific mention of such offense.
The complaint was made by the marshal orally under the provisions of section 1685, Revised Statutes 1889. That statute authorizes such complaints. It reads that when the complaint is made by the marshal it need not be in writing if the defendant be present in court and in custody. The entry in the docket of‘the magistrate should show this. Salisbury v. Patterson, 24 Mo. App. 169. But here the complaint by the marshal, as set forth in the docket, charges the offense to have been committed in his presence and continues as follows; “And also having the said Jacob Holsinger in custody, who pleads not guilty, and demands a trial which was granted and said cause was set for trial on the 16th day of May1, 1898,” etc. This entry does not show that the defendant was present in court. The statute dispenses with a written complaint only on condition that the defendant is not only in custody but also present in court. The latter requisite is not stated. Befendant may have been in the marshal’s custody and not in court, and the plea of not guilty may have been made by some one representing him. Prom the fact that defendant was in custody and that he pleaded not guilty it does not follow that he was present in court when the oral charge was lodged against him. The motion to dismiss was properly sustained and the judgment is affirmed.
