City of Moberly v. Deskin
| Citation | 155 S.W. 842,169 Mo.App. 672 |
| Parties | CITY OF MOBERLY, Respondent, v. GEORGE C. DESKIN, Appellant |
| Decision Date | 07 April 1913 |
| Court | Court of Appeals of Kansas |
Appeal from Randolph Circuit Court.--Hon. Alexander H. Waller Judge.
Judgment affirmed.
M. J Lilly for appellant.
Arthur B. Chamier for respondent.
--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 device and slot machine 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:
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 v. Foster, 52 Mo. 513; Campbell v. Railway, 175 Mo. 161, 75 S.W. 86; Town of Canton v. Ligon, 71 Mo.App. 407; McQuillin on Municipal Corp., sec. 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 statutes. The argument is based on the erroneous idea that the class of offenses dealt with in the ordinance is the same as that covered by section 4750, Rev. Stat. 1909. The ordinance relates only to offenses that are classed as misdemeanors in section 4753, Rev. Stat. 1909, and which are punishable by imprisonment in the county jail or workhouse or "by fine not exceeding five hundred dollars or less than fifty dollars." It is true the maximum and minimum fines prescribed by the ordinance are $ 100 and $ 25 respectively, and that the statutes provide (Sec. 9277, Rev. Stat. 1909) "that such city shall have power, in any case wherein the penalty for an offense is fixed by any statute, to affix the same penalty by ordinance, and no other, for the punishment of such offense" but as is said by the Supreme Court in Ex parte Caldwell, 138 Mo. 233, 39 S.W. 761, "The 'same penalty' mentioned in the charter evidently means the same kinds of punishment, that is, when the punishment is by fine only, the offender cannot be punished by imprisonment, and visa versa." The statute and ordinance both treat the offense in question as a misdemeanor punishable by imprisonment in the jail or workhouse or by fine and 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.
Finally counsel for defendant argue that the judgment should be reversed on the ground that the slot machine defendant permitted to be set up and operated on his premises was not a gambling device. Defendant maintained the machine and allowed it to be used in a restaurant he owned and operated in the city of Moberly. The machine which, as stated, was called an "Automatic Gum Vender" contained a compartment in which was kept a number of small packages of chewing gum. The quantity and quality of the gum in each package appears to have been much inferior to that usually found in packages sold on the market for five cents each but for the purposes of the present discussion we shall assume that the player who obtained from the machine...
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