City of King City v. Duncan
| Decision Date | 19 December 1911 |
| Citation | 142 S.W. 246,238 Mo. 513 |
| Parties | CITY OF KING CITY v. RICHARD P. DUNCAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Gentry Circuit Court. -- Hon. William C. Ellison, Judge.
Reversed and remanded.
Ed. E Aleshire, John A. Showen and W. H. Dalbey for appellant.
The principal error relied upon is the fact that the Three-Fourth Jury Law does not apply to a case of information against a party for violation of the city ordinances. Section 16 of article 2, Constitution of Missouri, expressly provides "that imprisonment for debt shall not be allowed except for the non-payment of fines and penalties imposed for violation of law." It is true that our courts have for a long time been trying to eliminate, or rather to determine what kind of a case one of the character now before the court is, and what rules are applicable to a trial of such a case. They have in several cases decided that cases of this character are civil in form, but quasi criminal in character we assume now that this is the law in Missouri. It has also been said by the courts of this State that a prosecution for the violation of a city ordinance, and acquittal or conviction, is not a bar for prosecution by the State. As the question involved in this case has never been passed upon by any court in this State, we are unable to cite any authority but must refer to the practice of this class of cases. The last sentence of section 5929, provides that the defendant shall be entitled to trial by jury as in prosecutions before justices of the peace. This now is the first step taken indicating how defendant shall be prosecuted, and of course, there is no question that a prosecution before a justice of the peace, when a conviction is had, and appeal taken, must, if found guilty, have the support of the entire jury of twelve. If we are to follow this section as to practice, then it necessarily must follow that on a conviction before the police judge and defendant appeals, that his case in the circuit court must, if a verdict is found against him, be by the entire jury. Now, we reach the question as to how the appeal shall be taken, and when that is done, we think the question is solved as to how the defendant shall be tried in the circuit court. This section reads as follows (Sec. 5937): "Upon such appeal the appellate court shall proceed with said cause in the same manner as is provided in cases of appeals from judgments of justices of the peace in cases of misdemeanor; and judgment of affirmance, dismissal and upon trials may be had, rendered and enforced as provided in the statute relating to misdemeanors." These sections seem to be conclusive upon the question involved and that is that cases appealed from a police court in cities of the fourth class, must be tried according to the statutes required for appealing in cases of misdemeanor. Of course, there can be no question that a jury of twelve is required to convict in a misdemeanor. While our courts have practically wiped out the criminal part of these cases, they have never changed the procedure and in this case, the court erred in receiving a verdict signed by less than twelve jurors. City of Tarkio v. Loyd, 109 Mo.App. 171.
J. W. Sullinger for respondent.
(1) The amendment to section 28 of article 2 of the Constitution, was by adding after the word law, in line three of said section, the following: "And that a two-thirds majority of such number prescribed by law, concurring, may render a verdict in all civil cases, and that in the trial by jury of all civil cases in courts of records, three-fourths of the members of the jury concurring, may render a verdict." This amendment, brief as it is, contains the expression "all civil cases" twice. Section 3782, p. 190, Laws 1901, enacted under the above constitutional provision, provides that three-fourths or more of the jurors concurring, may return a verdict, which shall have the same force and effect as though rendered by the entire panel. Appellant contends that he is wronged by the trial court receiving a verdict signed by ten jurymen. It is difficult to comprehend wherein appellant's contention is based on any constitutional or statutory right, since from the beginning of our decisions in Missouri, as well as in many other of the States, it has been repeatedly held that the defendant in prosecutions for the enforcement of ordinances, has no constitutional right to trial by jury. DeLaney v. Police Court, 167 Mo. 677; 1 Dillon on Mun. Corp. (4 Ed.), secs. 432-433; 2 Beach on Public Corp., sec. 1284; 6 Am. & Eng. Ency. Law (2 Ed.), p. 978, note 3; Callan v. Wilson, 127 U.S. 540. (2) If this is a civil case, then there can be no doubt about the correctness of the verdict, for the Constitution now provides for such a verdict. Even before the Constitution made provision that in all civil cases three-fourths of the members of the jury concurring may render a verdict, which by statute has the same force and effect as though rendered by the entire panel, the Supreme Court and Courts of Appeals had, in more than a dozen opinions, held that all prosecutions for the violation of city ordinances are civil and not criminal cases, because they are not for the enforcement of general laws coextensive with the State. St. Louis v. Weitzel, 130 Mo. 612; Mexico v. Harris, 115 Mo.App. 711; Kansas City v. Clark, 68 Mo. 588; Kirksville v. Munyon, 114 Mo.App. 567; State v. Muir, 164 Mo. 615; City v. Knox, 74 Mo. 79; Canton v. McDaniel, 188 Mo. 288; Delaney v. Police Court, 167 Mo. 677; Poplar Bluff v. Hill, 92 Mo.App. 19; Springfield v. Starke, 93 Mo.App. 70; City v. Anderson, 100 Mo.App. 344. Appellant in the absence of express right to have a verdict by the whole jury, seeks by reasoning from certain sections of the law governing practice to establish it, but Delaney v. Police Court, 167 Mo. 677, declares such attempt is "disingenuous." It ignores section 3782, p. 190, Laws 1901, and section 28, article 2, Constitution of Missouri as amended.
This is an appeal from the circuit court of Gentry county. Appellant was convicted in the police court of King City, a city of the fourth class in said county, for the violation of an ordinance prohibiting the carrying of concealed weapons, and appealed from the judgment to the circuit court. Upon a trial de novo before a jury of twelve, a verdict of guilty was returned, concurred in by ten members of the jury only. The court received the verdict, pronounced judgment, and the defendant appealed to the Kansas City Court of Appeals. Upon the ground that a question involving the construction of the Constitution of this State was presented, the case was transferred to this court. The appellate jurisdiction of this court is not challenged, and but one question is relied upon by appellant for a reversal of the judgment. That question is, Was the appellant, upon appeal to the circuit court, entitled to a trial under the rules of criminal procedure applicable to the trial of misdemeanors, including proof of guilt beyond a reasonable doubt and a conviction only upon the unanimous verdict of the jury, or was the respondent entitled to a trial under the rules of civil procedure, including proof as required in civil cases and a conviction upon three-fourths of the members of the jury concurring in the verdict?
In cases too numerous to make citations necessary, the appellate courts of this State have consistently held that a prosecution for a violation of a city ordinance is a civil and not a criminal case. And it was formerly provided by statute that such offenses should be tried as civil cases. [G. S. 1865, sec. 16, p. 242; Wag.'s Stat. 1872, sec. 16, p. 1318.]
By the amendment to the Constitution of this State adopted in 1900 (art. 2, sec. 28) it was provided that in civil cases a two-thirds majority of the members of the jury may render a verdict in courts not of record, and in courts of record three-fourths of the members of the jury concurring may render a verdict. The trial court in this case doubtless assumed that, as under the authorities in this State the case on trial was a civil case and as the fundamental law provides that in all civil cases "three-fourths of the jury concurring may render a verdict," a verdict of guilty concurred in by ten members of the jury was sufficient in law, and accordingly received the verdict and rendered judgment thereon.
On the other hand, it has been persistently maintained that a prosecution for the violation of a city ordinance, and especially when the offense charged is also a criminal offense under the public laws of this State, is essentially criminal in character, and as a judgment of conviction is followed by fine or imprisonment or both, and may be introduced in evidence as a conviction of "a criminal offense," for the purpose of impeachment, it is contended, and not without reason, that a person on trial under such a charge should be entitled to the presumption of innocence and to such constitutional and statutory guaranties as attend one accused of crime under the general law. The theory that such a prosecution is a civil case and must be tried as such, leads to the following anomalous result: After appellant had been convicted in the circuit court it was competent for the State to place him on trial upon an indictment or information for the same offense, and if he testified in his own behalf the State would then have had the right to introduce it in evidence against him, to impeach him as a witness, the former conviction under the city ordinance for the same offense, upon the ground that it was a criminal offense, although tried as a civil case and determined by a...
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