155 S.W. 842 (Mo.App. 1913), City of Moberly v. Deskin

CourtCourt of Appeal of Missouri (US)
Writing for the CourtJOHNSON, J.
Citation169 Mo.App. 672,155 S.W. 842
Docket Number.
PartiesCITY OF MOBERLY, Respondent, v. GEORGE C. DESKIN, Appellant

Page 842

155 S.W. 842 (Mo.App. 1913)

169 Mo.App. 672

CITY OF MOBERLY, Respondent,

v.

GEORGE C. DESKIN, Appellant

Court of Appeals of Missouri, Kansas City

April 7, 1913

Appeal from Randolph Circuit Court.--Hon. Alexander H. Waller, Judge.

Judgment affirmed.

M. J. Lilly for appellant.

Arthur B. Chamier for respondent.

OPINION

[169 Mo.App. 673] JOHNSON, J.

--Defendant was prosecuted and acquitted in the police court of Moberly, a city of the third class, on the charge of permitting "a gambling device commonly called a slot machine . . . to be set up and used for the purpose of gaming and gambling and playing games of chance for money and property, in a certain building in said city . . . which said building was then and there occupied and used by and was in the possession of and under the control of and belonged to the said George C. Deskin who did then and there permit divers persons . . . to come together in said building and play for money and property at games of chance with, at and on said gambling device and slot machine contrary to an ordinance in relation to gaming tables, banks and devices set up or used in houses and other premises in the city of Moberly," etc. The ordinance thus charged to have been violated was enacted April 8, 1910, and is as follows:

[169 Mo.App. 674] "Be it ordained by the city council of the city of Moberly, Missouri, as follows:

"Section 1. Every person who shall permit any gaming table, bank or device to be set up, or used, within the city, for the purpose of gaming, in any house, building, shed, booth, shelter, lot or other premises, to him belonging, or by him occupied, or of which he hath at the time the possession or control, shall, upon conviction, be adjudged guilty of a misdemeanor and punished by imprisonment in the city prison not more than three (3) months, nor less than thirty (30) days, or by a fine not exceeding one hundred dollars ($ 100), and not less than twenty-five dollars ($ 25).

"Section 2. This ordinance shall take effect and be in force from and after its passage, approval and publication, and shall repeal and annul any and all ordinances in conflict with the provisions of this ordinance."

A jury was waived in the circuit court where the cause was taken on the appeal

Page 843

of plaintiff and defendant was adjudged guilty and a fine of $ 25 and costs was assessed against him. From this judgment he appealed to this court.

Defendant objected to the introduction of the ordinance in evidence on the ground that plaintiff had offered no proof of its publication. The documentary evidence of the ordinance offered by plaintiff consisted of page 284 of a printed book entitled "Revised Ordinances, City of Moberly, 1910," which purported to have been published by authority of the city and to contain all of its ordinances, resolutions, rules, orders and by-laws. Further the book recited that it was published pursuant to "an ordinance in relation to revising, printing and publishing the revised ordinances of the city of Moberly of 1910," etc. The court overruled the objection and received the ordinance [169 Mo.App. 675] in evidence. Section 6295, Rev. Stat. 1909, provides:

"Printed copies of the ordinances, resolutions, rules, orders and by-laws of any city or incorporated town in this State, purporting to be published by authority of such city or incorporated town, and manuscript or printed copies of such ordinances, resolutions, rules, orders and by-laws, certified under the hand of the officer having the same in lawful custody, with the seal of such city or town annexed, shall be received as evidence in all courts and places in this State, without further proof; and any printed pamphlet or volume, purporting to be published by authority of any such town or city, and to contain the ordinances, resolutions, rules, orders or by-laws of such town or city, shall be evidence, in all courts and places within this State, of such ordinances, resolutions, rules, orders or by-laws."

We find the proof of the ordinance meets the requirements of this statute and constitutes prima facie evidence that the ordinance was duly enacted and published. Defendant was not precluded from showing that the ordinance had not been published as provided by law but the burden of proving that fact was on him. [City v. Foster, 52 Mo. 513; Campbell v. Railway, 175 Mo. 161, 75 S.W. 86; Town of Canton v. Ligon, 71 Mo.App. 407; McQuillin on Municipal Corp., sec. 391.] Since he offered no evidence attacking the validity of the ordinance on this point we assume that it was regularly enacted and published.

Next it is urged by defendant that the ordinance is void for the reason that it classes as a misdemeanor and punishes with a fine an offense denounced as a felony by the statutes. The argument is based on the erroneous idea that the class of offenses dealt with in the ordinance is the same as that covered by section 4750, Rev. Stat. 1909. The ordinance relates only to offenses that are classed as misdemeanors in section [169 Mo.App. 676] 4753, Rev. Stat. 1909, and which are punishable by imprisonment...

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37 practice notes
  • 213 N.W. 335 (Wis. 1927), City of Milwaukee v. Johnson
    • United States
    • Wisconsin United States State Supreme Court of Wisconsin
    • April 5, 1927
    ...568, 99 N.E. 806, 42 L. R. A. N. S. 720, 721, 722; Crippen v. Mint Sales Co., 139 Miss. 87, 91, 103 So. 503, 504; Moberly v. Deskin, 169 Mo.App. 672, 679, 155 S.W. 842, 844; Zaft v. Milton, 96 N.J.Eq. 576, 579, 126 A. 29, 31; Pure Mint Co. v. LaBarre, 96 N.J.Eq. 186, 188, 125 A. 105, 106; P......
  • 110 S.W.2d 737 (Mo. 1937), State ex rel. Igoe v. Joynt
    • United States
    • United States State Supreme Court of Missouri
    • September 27, 1937
    ...gambling device. [People v. Engeman, 129 A.D. 462, 114 N.Y.S. 174; Re Cullinan, 114 A.D. 654, 99 N.Y.S. 1097; City of Moberly v. Deskin, 169 Mo.App. 672, 155 S.W. 842.] Slot machines where chances are unequal in favor of the machine are unlawful. [Territory of New Mexico v. Jones, 14 N.M. 5......
  • 145 S.W.2d 143 (Mo. 1940), 36644, Hart v. Skeets
    • United States
    • United States State Supreme Court of Missouri
    • December 3, 1940
    ...was proper upon this ground. Sec. 1663, R. S. 1929; 22 C. J. 794, sec. 905; Town of Tipton v. Norman, 72 Mo. 380; Moberly v. Deskin, 169 Mo.App. 672, 155 S.W. 842; Tarkio v. Cook, 120 Mo. 1, 25 S.W. 202; Poplar Bluff v. Meadows, 187 Mo.App. 450, 173 S.W. 11; Brown v. Alton Railroad, 132 S.W......
  • 151 S.W.2d 727 (Mo.App. 1941), Brown v. Alton R. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • January 27, 1941
    ...such ordinance was duly enacted and published and the burden was on defendants to overcome such prima facie showing. Moberly v. Deskin, 169 Mo.App. 675. (c) Appellants cite no authority in their points and authorities in support of point 5 relative to the admission of the speed ordinance of......
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34 cases
  • 110 S.W.2d 737 (Mo. 1937), State ex rel. Igoe v. Joynt
    • United States
    • Missouri United States State Supreme Court of Missouri
    • September 27, 1937
    ...gambling device. [People v. Engeman, 129 A.D. 462, 114 N.Y.S. 174; Re Cullinan, 114 A.D. 654, 99 N.Y.S. 1097; City of Moberly v. Deskin, 169 Mo.App. 672, 155 S.W. 842.] Slot machines where chances are unequal in favor of the machine are unlawful. [Territory of New Mexico v. Jones, 14 N.M. 5......
  • 288 S.W. 966 (Mo.App. 1926), Oliver v. Orrick
    • United States
    • Missouri Court of Appeal of Missouri (US)
    • December 7, 1926
    ...nothing and the fact he would always get something (here a bar of chocalate) does not take the game out of the rule. Moberly v. Deskin, 169 Mo.App. 672; State v. Turlington, 200 Mo.App. 192. (c) Even if the game or device in question by itself had been harmless, the way it was being used co......
  • 103 So. 502 (Miss. 1925), 24715, Crippen v. Mint Sales Co.
    • United States
    • Mississippi United States State Supreme Court of Mississippi
    • April 20, 1925
    ...449, the same conclusion was reached, the slot machine being the same that we have in the instant case. See, too, Moberly v. Deskin, 169 Mo.App. 677, 155 S.W. 842; Cullian (Supp.) 114 A.D. 654, 99 N.Y.S. 1097; Cagle v. State, 93 So. 206; Pure Mint Co. v. Labarre et al., 125 A. 105, (New Jer......
  • 83 P.2d 611 (Okla.Crim.App. 1938), A-9356, Mackay v. State
    • United States
    • Oklahoma United States State Court of Criminal Appeals of Oklahoma Court of Criminal Appeals of Oklahoma
    • October 21, 1938
    ...construing statutes of similar import to the one involved in this case. Some of these cases are as follows: City of Moberly v. Deskin, 169 Mo.App. 672, 155 S.W. 842; Harvie v. Heise, 150 S.C. 277, 148 S.E. 66; Id., 279 U.S. 822, 49 S.Ct. 351, 73 L.Ed. 976; State ex rel. Manchester v. Marvin......
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