City of Milwaukee v. Burns

• Decision Date: 21 June 1937
• Citation: 225 Wis. 296,274 N.W. 273
• Parties: CITY OF MILWAUKEE v. BURNS.
• Court: Wisconsin Supreme Court

225 Wis. 296

274 N.W. 273

CITY OF MILWAUKEE

v.BURNS.

Supreme Court of Wisconsin.

June 21, 1937.

Appeal from a judgment of the Municipal Court of Milwaukee County; Max W. Nohl, Judge.

Action by the City of Milwaukee against Frank Burns for violation of a city ordinance. From an adverse judgment of the District Court, the defendant appealed to the Municipal Court, and from a judgment in favor of the defendant, the plaintiff appeals.-[By Editorial Staff.]

Reversed and remanded, with directions.

Action brought by the City of Milwaukee against respondent for violation of sec. 1069 of the Milwaukee Code of 1914, which is the gambling device and slot machine ordinance. The device involved is a pinball machine of the ten-ball “sportsman” variety. Case originally tried in the district court by the court on November 27, 1936, without a jury, and the respondent was found guilty of the charge of possessing a gambling device and was fined $20 and costs. Respondent appealed to the municipal court. Case was there tried to the court and jury on December 16, 1936. Jury returned a verdict of “not guilty,” whereupon respondent was forthwith discharged. The City of Milwaukee appealed. Further material facts will be stated in the opinion.

Walter J. Mattison, City Atty., and Carl F. Zeidler, Asst. City Atty., both of Milwaukee, for appellant.

John C. Fellenz, Jr., of Milwaukee, for respondent.

MARTIN, Justice.

This action is to recover a penalty for violation of section 1069 of the Milwaukee Code of 1914, which section provides:

“No person shall possess, keep, own, operate, use or cause to be kept, operated or used in any room, tent, booth, shed, tavern, building, inclosure or upon any premises, or part thereof, or in any place within the city of Milwaukee any clock, joker, tape, or slot machine, or other device of any kind or nature whatsoever, upon, in, by or through which money is or may be staked or hazarded or into which money is or may be played or paid upon chance, or upon the result of the action of such clock, joker, tape, or slot machine, or other device, money or other valuable thing is or may be staked, bet, hazarded, won or lost.

“Any person violating any of the provisions of this section shall be punished by a find of not less than ten dollars nor more than one hundred dollars, or by imprisonment in the House of Correction of Milwaukee County for not less than fifteen nor more than ninety days, or by both such fine and imprisonment; and each and every day on which any person shall operate, keep, own or have in his possession or under his control any such clock, joker, tape or slot machine, or other device in violation of the provisions of this section shall be deemed a separate and distinct offense.”

The respondent, on November 7, 1936, operated a tavern at 3143 South Clement avenue in the City of Milwaukee. On that day, he had a pinball machine of the ten-ball “sportsman” variety in his tavern. Respondent admits having this particular machine and two others in his tavern for use on the date in question. He testified that the O. K. Novelty Company owned the machines and put them in his tavern on a commission basis; that he received 25 per cent. of the cash taken in on the machines and that the novelty company received 75 per cent; that he and the owner of the machine made a settlement once a week. If the machine in question is a gambling device, respondent is guilty of a violation of the ordinance above quoted.

The city, on this appeal, makes three assignments of error:

(1) The court erred in refusing to permit the plaintiff, City of Milwaukee, to call the defendant adversely as a witness.

(2) The court erred in refusing to direct a verdict for the City of Milwaukee because no jury issue was present, as the pinball machine was a gambling device as a matter of law.

(3) The court erred in refusing to grant judgment, notwithstanding the verdict.

The city contends that this is a civil action and that the rules of practice and procedure in civil cases are applicable to prosecutions for violations of municipal ordinances. Respondent contends it is a criminal action and that the rules applying to procedure in civil actions do not apply. We will consider the assignments of error collectively.

[1][2][3] Under the statutes of this state, actions are of two kinds-civil and criminal (section 260.05, Stats.). A criminal action is defined as one prosecuted by the state against a person charged with a public offense, for the punishment thereof. Every other action is a civil action. This is a civil action and the rules of pleading and practice applicable to civil actions apply. City of Neenah v. Krueger, 206 Wis. 473, 475, 240 N.W. 402;Seely v. Milwaukee, 212 Wis. 124, 130, 248 N.W. 912;City of Milwaukee v. Johnson, 192 Wis. 585, 213 N.W. 335;De Vries v. Dye, 222 Wis. 501, 503, 269 N.W. 270. This being a civil action and the rules of practice and procedure in such actions being applicable here, the city had the right to call the defendant adversely as a witness. However, respondent could claim his constitutional right and not testify to anything which might tend to incriminate him. The respondent, as a witness in his own behalf, did testify that at the time and place in question he had this particular pinball machine and two other machines in his tavern; that they were played by patrons of his tavern and that they were operated on a commission basis with the owner. The city attorney had the opportunity to, and did, fully cross-examine the respondent, so the first assignment of error drops out of the case.

[4] The respondent contends that because the ordinance provides a penalty of fine or imprisonment or both fine and imprisonment, this is a criminal action. In City of Milwaukee v. Johnson, supra, 192 Wis. 585, at page 592, 213 N.W. 335, 338, the court said: “Counsel for the city concedes that Milwaukee had no power to pass an ordinance prohibiting gambling, which imposed imprisonment as a penalty for the violation of the ordinance. For the purpose of this appeal, the court will assume, without deciding that question, that no such power was possessed by the city of Milwaukee. But very clearly the court had the power as a means of enforcing the payment of the fine or forfeiture imposed to direct that the defendant be imprisoned until payment is made, but not to exceed a fixed maximum period of time. This imprisonment is in the nature of an execution against the body of the offender rather than the imposition of imprisonment as a...