City of St. Louis v. Fitz

• Citation: 53 Mo. 582
• Parties: THE CITY OF ST. LOUIS, Respondent, v. WILLIAM FITZ, Appellant.
• Decision Date: 31 October 1873
• Court: Missouri Supreme Court

53 Mo. 582

THE CITY OF ST. LOUIS, Respondent,

v.WILLIAM FITZ, Appellant.

Supreme Court of Missouri.

October Term, 1873.

Appeal from St. Louis Criminal Court.

David Murphy, for Appellant.

I. The association of defendant should have been presented to the jury, by the evidence and the instruction, to have been for the purpose of rendering assistance to the dangerous class proscribed by the ordinance. That is evidently the purport of the ordinance, or it is without authority of law. (Rex vs. Woodfall, 5 Burr., 2667; 14 Mo., 561; O'Connell vs. Reg., 11 Cl. and F., 155; Rex vs. Kenrick, 5 Q. B., 61; Brown's Com., (2d Ed.) 870.)

II. The offense should be stated with particularity, that the defendant may be able to meet the charge. (State vs. Tuley, 20 Mo., 422; J'Anson vs. Stuart, 1 Term., 748.)

III. The names of the persons, who are alleged to be persons having the reputation of being thieves and prostitutes, should be set out. (Gale vs. Reed, 8 East., 80; 1 Rol. Abr.)

T. J. Cornelius, for Respondent.

I. “Courts will give ordinances a reasonable construction, and will incline to sustain rather than overthrow them.” (Dill. Mun. Corp., § 353, and cases cited.)

NAPTON, Judge, delivered the opinion of the court.

The defendant was charged in the Police Court of the city of St. Louis, with violating the ninth clause of the first section of article 4, chapter 20, of the city ordinances, “by knowingly associating with persons having the reputation of being thieves and prostitutes, previous to August 21, 1871.”

The trial resulted in his conviction by the Police court, and the imposition of a fine of five hundred dollars. An appeal was taken to the Criminal Court, and the defendant was again tried and convicted, and the same fine inflicted.

On the trial, the court instructed the jury, “that if they believed from the evidence, that the defendant, William Fitz. has, within a year prior to the 21st day of August, 1872, knowingly associated with persons having the reputation of being thieves and prostitutes, then they will find him guilty under ordinance, and assess the fine in a sum not less than five hundred dollars.”

The defendant asked an instruction, “that the word associate implies an identification or community of interest, and that it is incumbent on the city to prove, that defendant has, in the city of St. Louis, within a year from the filing of the complaint herein, associated, knowingly and unlawfully, with thieves and prostitutes, with an intent to assist or encourage such persons in the perpetration of some act prohibited by law or the ordinances of the city of St. Louis, or they must acquit.”

The instruction was refused.

By the common law a conspiracy was an indictable offense. That was an association of two or more persons to break the law, whether this association resulted in any act to be done by the conspirators, or not. The gist of the offense was conspiring for an unlawful purpose, or to effect a lawful purpose by unlawful means. This furnished a formidabls weapon to the law officers of the crown, and was therefore strictly construed by the English judges. In indictments and other forms of criminal proceedinge to enforce this law, all the specific allegations were required to be made, which contributed to point out the offense.

The ordinance, for the breach of which the defendant is prosecuted, goes beyond the common law crime of conspiracy, and declares association with certain persons, suspected with being thieves or prostitutes, an offense.

The theory, upon which the case was tried in the Criminal Court, seems to have been, that a mere association with the class of persons described subjected the defendant to a criminal prosecution, without regard to the commission of any offense against the law, or any intent to commit such offense.

We find, on a careful examination of the evidence, that the reputation of being thieves or prostitutes is ascertained by calling the police officers, who are the prosecuting parties. For, in this case, all the witnesses outside of the police force, including some fifteen or twenty of the neighbors and associates of the defendant, contradict the statements of the police officers concerning the reputation of the persons alleged to be thieves and in whose society the defendant was found. So that, adopting this theory, the ordinance in question simply authorizes any police officer in the city to arrest any man who may be found at a drinking saloon, licensed by the city, or at a brothel, also licensed, in company with persons suspected by the police as thieves or prostitutes, and a fine of $500 is imposed for being found at places which the city authorities see fit to license, without any complicity being shown with the people there found to commit any unlawful act whatever.

We do not wish to be understood as intimating, that the verdict of the jury was wrong on the evidence. It may be that they discredited the witnesses for the defense, as they had a right to do. The Criminal Court, who heard the evidence, having refused to set aside the verdict, this court cannot interfere.

But we doubt the validity of this ordinance, as interpreted by the Criminal Court. We doubt the power of the State Legislature to pass such a law, giving it the construction which was given in this case. There is no doubt of the power of the Legislature, or of municipalities deriving their power from the Legislature, to make police regulations designed to promote the health and morals of the community. Laws to prohibit or regulate gaming, sales of intoxicating liquors, houses of prostitution, and thus...