State v. Muir

• Decision Date: 12 November 1901
• Citation: 164 Mo. 610,65 S.W. 285
• Parties: STATE v. MUIR.
• Court: Missouri Supreme Court

65 S.W. 285

164 Mo. 610

STATE v. MUIR.

Supreme Court of Missouri, Division No. 2.

November 12, 1901.

CRIMINAL LAW — PRIOR JEOPARDY — CONVICTION UNDER MUNICIPAL ORDINANCE.

A conviction under a city ordinance is not a bar to a prosecution for the same act based on a state statute, the prosecution under the ordinance being a mere civil proceeding.

Case certified from St. Louis court of appeals.

James Muir was convicted of gaming, and appealed to the St. Louis court of appeals (86 Mo. App. 642), which affirmed the judgment below and certified the case to the supreme court. Judgment in court of appeals affirmed.

The facts herein are agreed to be as follows, to wit: Mexico is a city of the third class, and is located in Audrain county, Mo., and as such has authority under its charter to prohibit gambling within the corporate limits of the city; and in pursuance of said authority an ordinance was duly enacted by said city prohibiting gambling, and fixing as a punishment for the violation of said ordinance a fine of not less than $5 nor more than $100 for each offense. It is further agreed that on the 7th day of January, 1900, this defendant, with others, did, in the city of Mexico, play at a game of chance commonly called "poker," with and by means of a deck of ordinary playing cards, a device adapted to playing poker and other games of chance; and that said game of poker was played by defendant for money, property, and gain. It is further agreed that on the 8th day of January, 1900, this defendant was arrested by the marshal of said city upon a warrant duly issued from the police court of said city upon a complaint in due form filed in said police court charging this defendant with said offense of gambling, and that he was brought before L. N. Bass, the duly elected and acting police judge of said city, and was then and there charged with having violated said ordinance, in this: that on the 7th day of January, 1900, he did, within the corporate limits of said city of Mexico, unlawfully play at a game of cards then and there for money, property, and gain. It is further agreed that said L. N. Bass, as police judge of said city of Mexico, had jurisdiction both of the subject-matter and the person of this defendant; that this defendant did plead guilty to the said charge on the 8th day of January, 1900, and was then and there fined by the court the sum of $5, together with the costs of said prosecution; that this defendant, on the said 8th day of January, 1900, did pay said fine of $5, together with all costs accruing therein, to wit, $6.10, — making a total paid by him and adjudged against him by the court of $11.10. It is further agreed that said ordinance was in full force and effect at all times and dates herein mentioned. It is further agreed that the grand jury of Audrain county for the June term of the Audrain circuit court, 1900, returned an indictment against this defendant charging him with the offense of gambling by playing at a game of chance commonly called "poker" with and by means of a deck of ordinary playing cards, a device adapted to playing poker and other games of chance for money, property, and gain. It is further agreed that the charge of gambling in the said indictment, and upon which this defendant is now placed upon his trial, is the same identical offense with which he was charged in the police court of said city of Mexico with having committed on the said 7th day of January, 1900, and to which he pleaded guilty and was fined as hereinbefore set forth. It is further agreed that the two counts in said indictment charged but the one single offense, which offense is the same offense to which this defendant pleaded guilty in said police court; that defendant has been arraigned upon said indictment, and entered his plea of not guilty; that he has filed in due form in this court his plea in bar setting out his former conviction and punishment; and it is admitted by the state that said plea in bar is in due form, and no point is made by the state on...