31 S.W. 915 (Mo. 1895), The City of St. Louis v. Roche

Citation:31 S.W. 915, 128 Mo. 541
Opinion Judge:Burgess, J.
Party Name:The City of St. Louis v. Roche, Appellant
Attorney:Thos. B. Harvey for appellant. W. C. Marshall for respondent.
Case Date:May 21, 1895
Court:Supreme Court of Missouri
 
FREE EXCERPT

Page 915

31 S.W. 915 (Mo. 1895)

128 Mo. 541

The City of St. Louis

v.

Roche, Appellant

Supreme Court of Missouri, Second Division

May 21, 1895

Appeal from St. Louis Court of Criminal Correction. Hon. Jas. R. Claiborne, Judge.

Reversed.

Thos. B. Harvey for appellant.

(1) The verdict is against the evidence, because there is no proof of the existence of the municipal ordinance alleged to have been violated. The existence of a law to be violated is the first essential fact in a prosecution. In the record presented, there is not the slightest suggestion of any proof of the ordinance alleged to have been violated. And courts will not take judicial notice of municipal ordinances. State ex rel. v. Sherman, 42 Mo. 210; Bowie v. Kansas City, 51 Mo. 454; Inhabitants v. Robinson, 75 Mo. 192; St. Louis v. Railroad, 12 Mo.App. 591; Keane v. Klausman, 21 Mo.App. 485. (2) The verdict is against the evidence, because, first, there is no proof that the alleged associates of appellant had general reputations as thieves, pickpockets, etc.; second, and there is no proof whatever that the alleged association of the parties was for the purpose of conspiring, aiding or abetting in the commission of crime. (3) The case of City v. Fitz, 53 Mo. 582, is conclusive on appellant's behalf.

W. C. Marshall for respondent.

(1) On the record presented, the judgment is right and should be affirmed. (2) Proceedings of this character are not criminal proceedings. St. Louis v. Knox, 74 Mo. 81; Ex parte Hollwedell, 74 Mo. 395. (3) There being sufficient evidence to support the charge, and the case having been tried by the court without a jury, and no objections having been made or saved to the admission of any evidence and no instructions having been asked or given, the judgment should be affirmed. Reese v. Cook, 17 Mo.App. 512; Noland v. Bruster, 17 Mo.App. 497; Tyler v. Larimore, 19 Mo.App. 445; Bank v. Bradley, 11 Mo.App. 599; Holiday v. Langford, 13 Mo.App. 594. (4) Every presumption will be indulged in favor of the correctness of the judgment below, and the appellant must show some error committed, which this record fails to do. State v. Burns, 85 Mo. 47; Porth v. Gibert, 85 Mo. 125; Goode v. Crow, 51 Mo. 212; State v. County Court, 51 Mo. 522; Acock v. Stewart, 57 Mo. 150. (5) The same presumption flows from the acts of a court of limited jurisdiction where the jurisdiction of the court once attaches. Brooks v. Duckworth, 59 Mo. 48; (6) If the party appealing does not bring up the full record, the supreme court will infer what is necessary to sustain the judgment. Goode v. Crow, supra; State v. County Court, supra. (7) Every reasonable intendment should be made in favor of the regularity of the proceedings, until the contrary is made to appear affirmatively by the showing of the complaint. Beckley...

To continue reading

FREE SIGN UP