City of Poplar Bluff v. Meadows

Citation173 S.W. 11,187 Mo.App. 450
PartiesCITY OF POPLAR BLUFF, Respondent, v. J. J. MEADOWS, Appellant
Decision Date30 January 1915
CourtCourt of Appeal of Missouri (US)

Appeal from Butler County Circuit Court.--Hon. J. P. Foard, Judge.

Judgment affirmed.

Abington & Phillips for appellant.

(1) The information filed by the city attorney charged defendant with a violation of section 640 of the Ordinances of the city of Poplar Bluff "passed and approved on the 6th day of March, 1899;" and the records of the city council offered in evidence showed that said ordinance was not passed on that day or any other day, and the defendant was therefore entitled to an acquittal. Cox v. Mignery, 126 Mo.App. 669-678; O'Dwyer v. Monnett, 123 Mo.App 184; R. S. 1909, sec. 5832; Light Co. v. City of Lebanon, 163 Mo. 259. (2) The persons who resorted to defendant's house for the purpose of prostitution were charged in the information as being "unknown;" the evidence introduced in the trial of the case showed the fact to be that they were known, and this warranted defendant's acquittal. State v. Stowe, 132 Mo 199; State v. Thompson, 137 Mo. 620; State v Lee, 228 Mo. 498. (3) The testimony offered in the trial of the case showed that the defendant had the sign of an honest occupation on the outer wall and window of his house and if he was conducting a bawdyhouse therein he was guilty of a felony. R. S. 1909, section 4758. Therefore, when it developed in the trial of this case that the defendant, if guilty of any offense, was guilty of a felony, then the police judge lost jurisdiction of the cause. R. S. 1909, section 9191. (4) The information in this case is defective because it does not conclude, "against the peace and dignity of the city," as required by law. R. S. 1909, sec. 9185.

Carl C. Abington (city attorney), and N. C. Whaley (city counselor) for respondent.

(1) The burden of proving that the ordinance under which the complaint is filed is not regular is on appellant. State v. Wray, 109 Mo. 594. (2) The presumption is that the proceedings are regular. Dollar Savings Bank v. Ridge, 183 Mo. 506; Roberts v. Central Lead Co., 95 Mo.App. 581. (3) Prosecutions for the violation of city ordinances are civil actions and consequently the rules applicable to prosecutions for crimes under the statutes do not apply and the information is sufficient if it notifies the defendant of the particular ordinance he is charged with violating and is sufficiently definite to bar another prosecution for the same offense. Mexico v. Harris, 115 Mo.App. 711; City of Gallatin v. Tarwater, 143 Mo. 40; City of St. Louis v. Weitzel, 130 Mo. 600. (4) The appellant is not charged in the information with a felony and there has been no attempt to prosecute him on a felony charge. Nor would this conviction be a bar to such a prosecution by the State. The mere matter of fact that some one testified there was a hotel or cafe sign on his window would not deprive the circuit court of jurisdiction to try the case on appeal from the police court on the misdemeanor charge of conducting a bawdyhouse, no more than if he had been found when arrested, with a pistol in his pocket or burglar tools in his possession. (5) It is not necessary that the information should conclude "against the peace and dignity of the city" as a prosecution for the violation of an ordinance of a city of the third class is a civil action. Mexico v. Harris, 115 Mo.App. 707; Caruthersville v. Palsgrove, 155 Mo.App. 564.

FARRINGTON, J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

--The appellant was found guilty by a jury in the police court of Poplar Bluff and appealed to the circuit court where he was again tried and convicted on the following information filed by the city attorney: (Formal parts omitted.)

"Now comes the undersigned, Carl C. Abington, city attorney within and for the city of Poplar Bluff, county of Butler, State of Missouri, and upon his knowledge, information and belief and upon the complaint of Samuel Gardner, informs the court and charges the fact to be that the defendant, J. J. Meadows, on or about the 29th day of October, 1913, at the city of Poplar Bluff and within the limits thereof, did then and there unlawfully set up and keep a common bawdyhouse, commonly called a house of ill-fame, house of bad repute, assignation house, or house for the prostitution of women, by then and there keeping and suffering to remain therein for the purpose of prostitution and lewdness, divers men and women, the names of whom are unknown to this affiant, and by then and there permitting divers other lewd and dissolute men and women to resort to said house and come together therein for the purpose of sexual intercourse and there remain whoring, contrary to and in violation of section 640 of an ordinance of said city entitled, 'An ordinance in revision of the ordinances of the city of Poplar Bluff, Missouri, and to ordain new and amended ordinance provisions for the government of said city,' passed and approved on the 6th day of March, 1899, and against the peace and dignity of the city of Poplar Bluff, whereby said defendant, J. J. Meadows, is indebted to said city in the sum of $ 100.

"Wherefore, the plaintiff prays the court to declare and assess the penalties prescribed by ordinance for said offense and that it render judgment therefor, together with the costs in this behalf expended, and that the said J. J. Meadows stand committed to prison until judgment is complied with."

The evidence clearly sustains the charge that defendant was keeping and suffering to remain in his house lewd women for the purpose of prostitution and that he was aiding and abetting such inmates in having unlawful sexual intercourse with men who would rent rooms and pay him for them for such purpose.

Error is assigned because the information charged that the names of such persons were unknown to the city attorney, citing State v. Stowe, 132 Mo. 199, 33 S.W. 799; State v. Thompson, 137 Mo. 620, 39 S.W. 83; and State v. Lee, 228 Mo. 480, 128 S.W. 987. Those are all State cases--prosecutions for felonies, wherein the rules are enforced with much strictness as to indictments and informations, whereas the same strictness is not required in a prosecution under a city ordinance which is in the nature of a civil action. That the charge be certain enough to notify the defendant of the charge made and definite enough to be a bar to a subsequent prosecution for the same offense is all that is required in actions of this character. [City of Mexico v. Harris, 115 Mo.App. 707, 92 S.W. 505; City of Gallatin v. Tarwater, 143 Mo. 40, 44 S.W. 750; City of St. Louis v. Weitzel, 130 Mo. 600, 31 S.W. 1045.] Besides, as was said in State v. Lee, supra, l. c. 499, the gravamen of the offense was the keeping of such a house and permitting unlawful sexual intercourse to be practiced therein by lewd men and women. Their names are not essential facts to be shown. Moreover, the evidence does not disclose that the city attorney knew who were the inmates of this place. The chief of police who made the affidavit said he knew one or two of the girls that stayed there, but there is no evidence that he or anyone knew who the men were, and as it takes two, both male and female to carry on the unlawful conduct charged, there was no error in omitting the names from the charge where they were in fact unknown to the city attorney.

Defendant contends that the evidence adduced shows that he was guilty of a felony for displaying the sign of an honest occupation when in fact he was conducting a bawdyhouse and that the city thereupon lost its right to prosecute under its ordinances, citing section 4758 and section 9191, Revised Statutes 1909. The defendant is not charged with or convicted of a felony; nor will this judgment bar a prosecution by the State under section 4758. Section 9191 is merely a directory statute and not one that can avail the defendant in this connection.

The court did not commit error in refusing a continuance. The affidavit of defendant stating what his absent witnesses would testify shows that their testimony would have been mostly cumulative of what he and other witnesses testified. [See, Cooley v. Railroad, 149 Mo. 487, 51 S.W. 101.] The granting of a continuance on account of absence of witnesses rests largely in the discretion of the trial court. [State v. Riney, 137 Mo. 102, 38 S.W. 718; Trimble & Braley v. Light Co., 115 Mo.App. 605, 92 S.W. 346.]

Appellant insists that the information is defective because it does not conclude, "against the peace and dignity of the city," citing section 9185, Revised Statutes 1909. Prosecutions under city ordinances are civil actions. [City of Gallatin v. Tarwater, supra; City of Caruthersville v. Palsgrove, 155 Mo.App. 564, 134 S.W. 1032.] The complaint sufficiently advised the defendant of the particular offense with which he was charged and the number of the ordinance he had violated, and was definite enough to bar a subsequent prosecution for the same offense under the ordinances of the city, and this is all that is required. [City of Mexico v. Harris, supra, l. c. 711.] While the prayer of the information does not conclude in the language of the statute, it will be seen that the charge placed against defendant does conclude in the exact language of the statute. This is a sufficient compliance with the statute, it being merely a directory and not a mandatory provision.

The city attorney offered in evidence section 640 which prohibited the keeping of a bawdyhouse, being the section on which the prosecution was based; he offered to read the section from what purported to be a printed book, published by authority of the city, of the revised ordinances of the city of Poplar Bluff...

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3 cases
  • City of Springfield v. Stevens
    • United States
    • Missouri Supreme Court
    • January 7, 1949
    ... ... complaint in this case is sufficient. Sec. 6796, R.S. 1939; ... City of Popular Bluff v. Meadows, 187 Mo.App. 450, ... 173 S.W. 11; City of Moberly v. Kervin, 234 S.W ... 514; ... The same strictness is not required ... as in a criminal prosecution. City of Poplar Bluff v ... Meadows, 187 Mo.App. 450, 173 SW. 11, 12. Appellant was ... specifically advised of ... ...
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