City of St. Louis v. Roche

• Decision Date: 21 May 1895
• Citation: 31 S.W. 915,128 Mo. 541
• Parties: CITY OF ST. LOUIS v. ROCHE.
• Court: Missouri Supreme Court

31 S.W. 915

128 Mo. 541

CITY OF ST. LOUIS v. ROCHE.

Supreme Court of Missouri, Division No. 2.

May 21, 1895.

CONVICTION UNDER CITY ORDINANCE — FAILURE TO READ ORDINANCE IN EVIDENCE — PROOF OF REPUTATION — PROHIBITION OF ASSOCIATION WITH THIEVES — VALIDITY.

1. A conviction under a city ordinance will be set aside where the ordinance was not read in evidence.

2. On a trial under a city ordinance making it unlawful for any one to knowingly associate with persons having the reputation of being thieves, the bad reputation of the persons with whom defendant associated cannot be proved by the testimony of police officers as to what they had been told by other police officers regarding such persons.

3. A city ordinance making it a penal offense for any one to knowingly and unlawfully associate with persons having the reputation of being thieves for the purpose of aiding and abetting such persons in their unlawful acts is an invasion of personal liberty.

Appeal from St. Louis criminal court; James R. Claiborne, Judge.

Thomas Roche was convicted of knowingly associating with persons having the reputation of being thieves, and appeals. Reversed.

Thos. B. Harvey, for appellant. W. C. Marshall, for respondent.

BURGESS, J.

Defendant was charged in the St. Louis court of criminal correction with violating the eighth clause of Ordinance No. 14,000, c. 25, art. 6, § 1023, of said city, by knowingly, willingly, and unlawfully associating with persons having the reputation of being thieves, burglars, pickpockets, pigeon droppers, and gamblers, for the purpose and with the design and intent of conspiring and combining with such parties to aid, abet, assist, and promote them in gambling, gaming, and pigeon dropping, at divers gambling houses, and at places for the reception of stolen property, and which said gambling houses and places were the resort of thieves, burglars, pickpockets, and pigeon droppers. The trial resulted in his conviction by the court of criminal correction, and the imposition of a fine of $500. From the judgment rendered defendant appealed. The case was tried by the court without the aid of a jury. No exceptions of any kind were saved to the action of the court, except in overruling the motions for new trial and in arrest, to which exceptions were duly and timely made.

Defendant's first contention is that there was no evidence to support the finding and judgment of the court. This contention is predicated of the fact that the ordinance which defendant was charged with violating was not offered or read in evidence upon the trial. The rule is well settled in this state that courts will not take judicial notice of the ordinances of municipalities. State v. Sherman, 42 Mo. 210; Bowie v. Kansas City, 51 Mo. 454; Inhabitants of Town of Butler v. Robinson, 75 Mo. 192; St. Louis v. St. Louis R. Co., 12 Mo. App. 591; Keane v. Klausman, 21 Mo. App. 485. If there was any such ordinance as that described in the information it should have been introduced in evidence, without which there was no evidence to support the finding and judgment of the court. The failure to read the ordinance in evidence did not go to the weight of the evidence merely, but without it there was an entire failure of evidence. Without it there is nothing upon which the judgment of conviction can stand. It was the very foundation upon which the prosecution was bottomed, and the only guide by which it could possibly be determined whether defendant had violated it or not, and which could not be determined otherwise than by its production in court, as a matter of evidence. A conviction could just as well be had for the forgery of a note without producing it in evidence, or in any way accounting for its absence, so as to authorize the introduction of secondary evidence of its contents, as for the violation of a city ordinance without reading it in evidence, unless waived. We are unable to see any difference in principle.

Moreover, there was no evidence that the persons with whom defendant was charged with associating were of the disreputable character alleged in the information, or that defendant had knowledge thereof, even if it had been proven. It is true that several policemen testified that they had the reputation of being thieves, and one witness testified that the defendant, Roche, had once been convicted, but was subsequently granted a new trial and acquitted. We do not...