City of Mexico v. Harris

• Decision Date: 30 January 1906
• Parties: CITY OF MEXICO v. HARRIS.
• Court: Missouri Court of Appeals

92 S.W. 505

115 Mo. App. 707

CITY OF MEXICO v. HARRIS.

St. Louis Court of Appeals. Missouri.

January 30, 1906.

1. MUNICIPAL CORPORATIONS — VIOLATION OF ORDINANCES — PROSECUTIONS — NATURE OF PROCEEDING.

Under Rev. St. 1899, § 5795, authorizing the police judge of a third-class city to hear and determine complaints against persons arrested and brought before him, and section 5805, authorizing an appeal from a judgment of the police judge by the defendant or the city, a prosecution for violation of a city ordinance is not a criminal action, but a civil one, and the sufficiency of the complaint is to be determined by the rules applicable in other civil cases.

2. SAME — REQUISITES OF COMPLAINT.

A complaint for violation of a municipal ordinance is sufficient, regardless of its form, if it notifies defendant of the particular ordinance which he is charged with violating, and is sufficient to bar another prosecution for the same offense.

3. SAME — CONFORMITY TO AFFIDAVIT.

Since the statute governing prosecutions for violations of a city ordinance does not require the complaint to be supported by an affidavit or oath, it is immaterial whether the complaint, as filed, conforms to the affidavit on which it purports to be based or not.

4. GAMING — CRIMINAL PROSECUTIONS — SUFFICIENCY OF COMPLAINT.

In a prosecution for violating a municipal ordinance, a complaint stating that on a certain day defendant unlawfully set up a gambling device in a certain house within the corporate limits of the city, in violation of a certain ordinance thereof, was sufficient as against a motion to quash the complaint.

5. SAME — EVIDENCE.

In a prosecution for violation of a city ordinance prohibiting the setting up of gambling devices, evidence of a complaint against, and plea of guilty by, defendant in a previous prosecution for gaming based on the same transaction as that for which defendant was on trial, was competent to show that a certain table produced in evidence was a gambling device.

6. SAME — OFFENSES — GAMING DEVICES.

A municipal ordinance declaring it a misdemeanor for any person to set up or keep a gaming table or device, or to permit any such table or device to be set up for the purpose of gaming in any house or premises belonging to him, or in his possession, is directed against any person who sets up a gaming device in violation thereof, whether such person is the owner, proprietor, or a mere occupant of the place where he sets up the device.

7. CRIMINAL LAW — FORMER JEOPARDY — IDENTITY OF OFFENSES.

The offense of gaming is not identical with the offense of setting up a gambling device on which the gaming is done, and a conviction for the former is not a bar to a prosecution for the latter.

Appeal from Circuit Court, Audrain County; Houston W. Johnson, Judge.

Action by the city of Mexico against John W. Harris for the violation of an ordinance. From a judgment of conviction rendered in the circuit court on appeal from the police judge, defendant appeals. Affirmed.

P. H. Cullen, for appellant. J. T. Baker and O. Hitt, for respondent.

BLAND, P. J.

On a trial before the police judge of the city of Mexico, Mo., the defendant was convicted of a violation of the following ordinance of said city: "Sec. 109. Setting up gambling devices. — Any person who shall, in this city, set up or keep any gaming table or gambling device, the setting up and keeping of which is not by the law of this state declared to be a felony, at which any game of chance shall be played for money, property or anything representing money or property or shall suffer or permit any such table or device, at which any game of chance is played, to be set up or used for the purpose of gaming in any house, building, shed, booth, shelter, lot or other premises to him belonging or by him occupied, or of which he hath at the time the possession or control, shall be deemed guilty of a misdemeanor, and upon conviction thereof be fined not less than fifty nor more than one hundred dollars." Defendant appealed to the circuit court of Audrain county, where on a trial de novo he was again found guilty and adjudged to pay a fine, from which judgment he appealed to this court. In the circuit court the following motion to quash the information, so called, was filed and overruled by the court: "Now comes the defendant and moves the court to quash the affidavit and statement of the city attorney herein, and for cause says there is a variance between the affidavit and the attorney's statement; that neither the affidavit or statement states facts sufficient to constitute a charge against the defendant; that the said affidavit is uncertain, ambiguous, and indefinite, and fails to apprise the defendant of the charge made against him."

The action of the court in overruling said motion is assigned as error. The affidavit upon which the information purports to have been founded need not be set out, as it is of no importance in the determination of the error assigned. The information is as follows (omitting caption and signature): "The undersigned, city attorney of the city of Mexico. Audrain county, Mo. upon the complaint of J. D. Sims, informs the court that one John Harris on the ____ days of January, February and March, 1903, within the corporate limits of said city of Mexico, did then and there willfully and unlawfully set up and keep a gambling device the setting up and keeping of which is not by the laws of this state declared to be a felony, at which was played a game of chance, commonly called `poker,' with a pack of playing cards in which chance was a material element at which a game of chance was played for money, property, and effects, and did bet and wager on the side in a house, room, or place which is known as the Mayfield building within the corporate limits of the city of Mexico, contrary to and in violation of the provisions of section 109, of chapter 22, of the revised ordinances of the city of Mexico, 1893,...