City of Moberly v. Deskin

• Citation: 169 Mo. App. 672,155 S.W. 842
• Parties: CITY OF MOBERLY v. DESKIN.
• Decision Date: 07 April 1913
• Court: Court of Appeal of Missouri (US)

155 S.W. 842

169 Mo. App. 672

CITY OF MOBERLY v. DESKIN.

Kansas City Court of Appeals. Missouri.

April 7, 1913.

1. MUNICIPAL CORPORATIONS (§ 122) — ORDINANCES — EVIDENCE OF ENACTMENT.

In a prosecution for the violation of a city ordinance, page 284 of a printed book entitled "Revised Ordinances, City of M.," purporting to have been published by authority of the city and to contain all of its ordinances, resolutions, rules, orders, and by-laws, and reciting that it was published pursuant to "an ordinance in relation to revising, printing and publishing the revised ordinances of the city of M.," was prima facie evidence that the ordinance was duly enacted and published.

2. GAMING (§ 63) — ORDINANCES — MISDEMEANORS.

Rev. Ordinances City of Moberly, 1910, p. 284, relating to gaming devices, relates only to such offenses as are classed as misdemeanors in Rev. St. 1909, § 4753, punishable by imprisonment in the county jail or workhouse, or "by fine not exceeding five hundred dollars or less than thirty dollars."

3. MUNICIPAL CORPORATIONS (§ 592) — STATUTES — ORDINANCES — DIFFERENT PUNISHMENT.

Where a state statute and a city ordinance both treat an offense as a misdemeanor punishable by imprisonment in the jail or workhouse or by fine, the fact that the ordinance prescribes not a different kind, but a lighter degree of punishment than the statute, does not militate against its validity, within Rev. St. 1909, § 9277, providing that a city may affix only "the same penalty" by ordinance that is prescribed by the statute on the same matter.

4. GAMING (§ 68) — "GAMBLING DEVICE" — "GAMING DEVICE" — "GAMBLING" — VENDING MACHINES.

The fact that a package of gum was given each time a nickel was dropped in a slot machine, which also gives trade chips valued at from 10 cents to $1 to a lucky player, does not give it an innocent character, and it is a "gambling device" or a "gaming device" within an ordinance prohibiting gaming devices, although the trade checks were not given at the time of playing the nickel, but just indicated, and were obtained by dropping a check in the slot; it not being essential to gambling that a player has a chance to lose, but being enough that he has a chance to get something for nothing.

Appeal from Circuit Court, Randolph County; Alex H. Waller, Judge.

George C. Deskin was convicted of crime, and he appeals. Affirmed.

M. J. Lilly, of Moberly, for appellant. Arthur B. Chamier, of Moberly, for respondent.

JOHNSON, J.

Defendant was prosecuted and acquitted in the police court of Moberly, a city of the third class, on the charge of permitting "a gambling device commonly called a slot machine * * * to be set up and used for the purpose of gaming and gambling and playing games of chance for money and property, in a certain building in said city, * * * which said building was then and there occupied and used by and was in the possession of and under the control of and belonged to the said George C. Deskin, who did then and there permit divers persons * * * to come together in said building and play for money and property at games of chance with, at, and on said gambling devices and slot machines, contrary to an ordinance in relation to gaming tables, banks, and devices set up or used in houses and other premises in the city of Moberly." etc. The ordinance thus charged to have been violated was enacted April 8, 1910, and is as follows:

"Be it ordained by the city council of the city of Moberly, Missouri, as follows:

"Section 1. Every person who shall permit any gaming table, bank or device to be set up, or used, within the city, 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, upon conviction, be adjudged guilty of a misdemeanor and punished by imprisonment in the city prison not more than three (3) months, nor less than thirty (30) days, or by a fine not exceeding one hundred dollars ($100), and not less than twenty-five dollars ($25).

"Sec. 2. This ordinance shall take effect and be in force from and after its passage, approval and publication, and shall repeal and annul any and all ordinances and parts of ordinances in conflict with the provisions of this ordinance."

A jury was waived in the circuit court where the cause was taken on the appeal of plaintiff, and defendant was adjudged guilty and a fine of $25, and costs was assessed against him. From this judgment he appealed to this court.

Defendant objected to the introduction of the ordinance in evidence on the ground that plaintiff had offered no proof of its publication. The documentary evidence of the ordinance offered by plaintiff consisted of page 284 of a printed book entitled "Revised Ordinances, City of Moberly, 1910," which purported to have been published by authority of the city and to contain all of its ordinances, resolutions, rules, orders, and by-laws. Further, the book recited that it was published pursuant to "an ordinance in relation to revising, printing and publishing the revised ordinances of the city of Moberly of 1910," etc. The court overruled the objection, and received the ordinance in evidence. Section 6295, Rev. Stat. 1909, provides: "Printed copies of the ordinances, resolutions, rules, orders, and by-laws of any city or incorporated town in this state, purporting to be published by authority of such city or incorporated town, and manuscript or printed copies of such ordinances, resolutions, rules, orders, and by-laws, certified under the hand of the officer having the same in lawful custody, with the seal of such city or town annexed, shall be received as evidence in all courts and places in this state, without further proof; and any printed pamphlet or volume, purporting to be published by authority of any such town or city, and to contain the ordinances, resolutions, rules, orders, or by-laws of such town or city, shall be evidence in all courts and places within this state, of such ordinances, resolutions, rules, orders or by-laws." We find the proof of the ordinance meets the requirements of this statute, and constitutes prima facie evidence that the ordinance was duly enacted and published. Defendant was not precluded from showing that the ordinance had not been published as provided by law, but the burden of proving that fact was on him. City of St. Louis, v. Foster, 52 Mo. loc. cit. 517; Campbell v. Railway, 175 Mo. loc. cit. 176, 75 S. W. 86; Town of Canton v. Ligon, 71 Mo. App. 407; McQuillin on Municipal Corp. § 391. Since he offered no evidence attacking the validity of the ordinance on this point we assume that it was regularly enacted and published.

Next, it is urged by defendant that the ordinance is void, for the reason that it classes as a misdemeanor and punishes with a fine an offense denounced as a felony by the...