City of Marshall v. Standard
| Decision Date | 10 January 1887 |
| Citation | 24 Mo.App. 192 |
| Parties | CITY OF MARSHALL, Respondent, v. GEORGE W. STANDARD, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Saline Criminal Court, HON. JOHN E. RYLAND, Judge.
Reversed and case dismissed.
The case is stated in the opinion.
BOYD & SEBREE, for the appellant.
I. Defendant's motion to dismiss should have been sustained because the complaint did not show or charge that the person arrested (and whom defendant is charged with assisting to escape) was charged with any offence whatever, or was guilty of any. The offence of resisting an officer or rescuing a prisoner may be either a felony or a misdemeanor. Rev. Stat sects. 1436, 1444, 1466, 4983; State v. Henderson, 15 Mo. 487.
II. Plaintiff had no authority to pass the ordinance in question. And the mayor has no jurisdiction to try such cases. The offence is a criminal offence and defendant upon trial of it is entitled to a jury. The penalty may be imprisonment in penitentiary, county jail, or fine. Const. Mo., art. II sects. 23 and 28; Rev. Stat., sect. 2045.
III. The only authority of the plaintiff, in this case, is that given by section 4940, Revised Statutes. Its power, under that section, is limited to a fine of one hundred dollars. The offence referred to in the ordinance is a criminal offence, and the accused has the right to a trial by the jury, both by the constitution and laws of this state. Const. Mo., art. II., sects. 22, 28; Rev. Stat., sect. 2045; St. Louis v. Bentz, 11 Mo. 61; 1 Dillon on Mun. Corp. (3 Ed.) sects. 329, 368, 433.
H. M. HARVEY and LESLIE OREAR, for the respondent.
I. In complaints of this kind it is only necessary to inform the defendant what he is called upon to answer, the complaint need not be as technical as an indictment. City of St. Louis v. Smith, 10 Mo. 439.
II. Plaintiff had authority to pass the ordinance in question, under section 4940, Revised Statutes. St. Louis v. Caffarata, 24 Mo. 96; St. Louis v. Bentz, 11 Mo. 61.
III. The mayor of plaintiff had jurisdiction to try the case. Rev. Stat., sect. 4982. This does not prohibit jury trial, jurisdiction refers to courts alone, not to juries. Rev. Stat., sect. 13, ch. 3; Ibid., sect. 23, ch. 3. Even if sections 4982 and 4992, Revised Statutes, prohibit jury trials in the mayor's court; and afterwards defendant was allowed appeal, and trial by jury in the appellate court, then his constitutional right to trial by jury was not invaded. Stewart v. Mayor, 7 Md. 501; Morford v. Barnes, 8 Yerger (Tenn.) 441; Dorgan v. Boston, 12 Allen (Mass.) 223; Cooley's Const. Lim. 410; Inwood v. State, 42 Ohio 186.
IV. The statutory offence of resisting an officer and rescuing a prisoner, and the offence under the ordinance of the city are different offences, and the penalties are different. Bishop Stat. Crimes, 23; U. S. v. Cruikshank, 92 U.S. 550.
The defendant is charged with a violation of an ordinance of the city of Marshall, in reference to the resistance of officers. The complaint was made by the city marshal and was verbal, the defendant being at the time in court and under arrest; the charge being entered of record by the mayor in words as follows: " June 20, 1885, Joseph W. Bartlett, city marshal, informs the mayor that at the city of Marshall, on the twentieth day of June, 1885, one Geo. W. Standard, now in court, and in custody, did then and there forcibly oppose a policeman, to-wit: Phillip Coiner, deputy marshal of the city of Marshall, in making the lawful arrest of Abe Allenberg, and then and there did aid the said Abe Allenberg, the person arrested, to escape from said Phillip Coiner, policeman aforesaid, contrary to the form of the ordinances of said city, and against the peace and dignity of said city and the state of Missouri."
Defendant filed his motion to dismiss, on the ground that the charge against him did not state facts sufficient to show a violation of any ordinance of plaintiff, or any law of the state.
The motion was overruled, plea of not guilty entered, and on trial before the mayor, defendant was found guilty and fined sixty dollars.
He appealed to the criminal court of Saline county.
At September term of the criminal court, defendant filed a motion to dismiss, on the ground: (1) That the complaint entered against him did not state facts sufficient to constitute a cause of action, and did not state facts sufficient to show a violation of any ordinance of plaintiff, or any law of this state, in this, that it did not state or show that Abe Allenberg, the person charged to have been arrested, in escaping, was charged with any offence whatever, and did not state any fact which could authorize the officer in arresting him or holding him in custody. (2) That the mayor of plaintiff had no jurisdiction over the offence charged, or attempted to be charged, in the complaint. (3) Because the plaintiff had no power to pass any ordinance imposing a fine, penalty, or forfeiture for the offence of resisting an officer.
Defendant's motion was overruled. A plea of not guilty was entered; on trial defendant was found guilty and fined thirty dollars.
Defendant appeals to this court.
Plaintiff is a city of the fourth class, and the ordinance defendant is charged with violating is as follows:
I. The plaintiff, being a city of the fourth class, its charter is found in sections 4931, 5003, Revised Statutes, inclusive. The complaint in this case is neither an indictment nor information, but is entered by authority of section 4983. And though section 12, of the Bill of Rights, provides that felonies must be prosecuted by indictment only, and all other offences shall be prosecuted criminally by indictment or information, yet, if the charge in this complaint, is merely the violation of a valid municipal ordinance, the prosecution thereof otherwise than by indictment or information would not fall under the ban of the section. For a violation of the ordinance set out, under which it is claimed defendant was arrested, would not be regarded as a criminal offence in the sense of the constitution. Ex Parte Hollwedell, 74 Mo. 395.
II. It will be noticed that no provision is made for a jury trial for municipal offences in cities of the fourth class. In the absence of such provision, it is to be taken that the legislature has not intended there shall be jury trials in such municipalities. For, by reference to proceedings before circuit courts and justices of the peace, special provision is made for a jury, at the demand of either party. Sects. 2974, 3600, Rev. Stat. But we are not left to mere inference as to the intention of the legislature in this respect, for it is manifest from sections 4982, 4992, that all prosecutions arising under ordinances shall be tried and determined by the mayor, without the intervention of a jury. By the former section he has " exclusive original jurisdiction to hear and determine all offences against the ordinances of the city." By the latter, " if the defendant plead or be found guilty, the mayor shall declare and assess the punishment."
I think the legislature may provide for a trial, in this summary way, of strictly municipal offences, without trenching on the provisions of sections 22, 28, of the Bill of Rights. These and similar provisions, to be found in the organic law of all the states, have always been understood to refer to such cases as must be tried by jury at common law. " It was not intended to introduce trial by jury in cases where it did...
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