City of St. Louis v. Fitch

• Decision Date: 17 April 1945
• Parties: City of St. Louis, Respondent, v. Harry Lee Fitch, Appellant
• Court: Missouri Court of Appeals

187 S.W.2d 63

238 Mo.App. 725

City of St. Louis, Respondent, v. Harry Lee Fitch, Appellant

Court of Appeals of Missouri, St. Louis District

April 17, 1945

Appeal from St. Louis Court of Criminal Correction; Hon. David W Fitzgibbon, Judge.

Affirmed.

Geo A. McDonald for appellant.

(1) Not allowed to arrest a man without a warrant for carrying a concealed weapon because officer did not know he had a weapon. State ex rel. v. Dierker, 101 Mo.App. 636; State ex rel. v. Gartland, 304 Mo. 87, 101; State v. Holcomb, 86 Mo. 37, 80, 81; Sec. 7691, R S. Mo. 1939. Officer cannot arrest for misdemeanor without a warrant; cannot arrest without probable cause. Hanser v. Bieber, 271 Mo. 336; State v. McBride, 327 Mo. 184; McGill v. Walnut Realty Co., 148 S.W.2d 131. (2) An officer without a warrant cannot detain a citizen and search his person or effects except where felony has been committed and there is probable cause to believe person arrested is guilty thereof. State v. Wilkinson, 159 S.W.2d 794; State v. Dunnivan, 217 Mo.App. 548; State ex rel. v. Dierker, 101 Mo.App. 636; Sec. 11, Art. 2, Const. Mo. Evidence obtained by illegal search and seizure is inadmissible. State v. Rebasti, 306 Mo. 336; State v. Locke, 302 Mo. 400; State v. DeClue, 267 S.W. 45; State v. Hall, 265 S.W. 843; State v. Harris, 250 S.W. 925. There was no evidence heard; the entry of the clerk on the files was: "Defendant fails to appear. Cause tried by default, defendant fined $ 10 and costs." This disposition is contrary to law. Sec. 3843, R. S. Mo. 1939; St. Louis v. Murphy, 24 Mo. 41. The record fails to show that the ordinance was read or offered in evidence or that the alleged weapon was offered in evidence and identified by anyone. Secs. 1827, 3843, R. S. Mo. 1939. (3) The arrest was unlawful under Sec. 7691, R. S. Mo. 1939, and under Sec 3959, R. S. Mo. 1939, and contrary to Sec. 3806, R. S. Mo., 1939; and to Art. 12. Sec. 3 of the Charter of the City of St. Louis. (4) There was no evidence negativing the exceptions in the ordinance, and no evidence that there was concealment if a knife is a weapon under the ordinance. Sec. 1827, R. S. Mo. 1939; Poplar Bluff v. Meadows, 187 Mo.App. 451, 173 S.W. 11; Tipton v. Norman, 72 Mo. 381. If evidence is used at all, it must be incident to a lawful arrest. State v. Morice, 79 S.W.2d 741. (5) The first question to be decided by any court in any case is whether it has jurisdiction. Ussery v. Haynes, 127 S.W.2d 410. The court had no jurisdiction because there was no such an offense under the ordinance, and had no jurisdiction to render a default judgment. If defendant fails to appear, the court is required on motion of the city counselor to affirm the judgment of the police court and send the action back to that court for action. Section 3843, R. S. Mo. 1939; St. Louis v. Murphy, 24 Mo. 41.

Joseph F. Holland, Oliver Senti and Charles J. Dolan for respondent.

(1) There is nothing in the record to indicate that appellant was arrested without a warrant. The court will not consider allegations of fact that are not supported by the record. (2) In cities of more than 500,000 inhabitants, i. e., the City of St. Louis, the police are authorized to make arrests without warrants. R. S. Mo. 1939, sec. 7691; Hanser v. Bieber, 271 Mo. 326, 337. (3) There is nothing in the record pointing to any failure on the part of the court to follow the provisions of Sec. 3843, R. S. Mo. 1939. (4) Appellant alleges that the court erred because it failed to have the ordinance read into the record. As the testimony taken at the trial has not been preserved in the bill of exceptions, this alleged error is not properly before this court. (5) Notwithstanding the fact that proceedings in the City Courts of St. Louis are partly in the nature of civil proceedings, it is well settled that the police of said city have authority to make arrests for alleged violations of ordinances. R. S. Mo. 1939, sec. 7691. (6) In a case on appeal from the city courts of the City of St. Louis to the court of criminal correction, it is competent for the latter court to render a judgment by default against the appellant. City of St. Louis v. Murphy, 24 Mo. 41.

OPINION

Sutton, C.

This case was instituted in City Court No. 2 of the City of St. Louis, to recover of defendant a fine on a charge of carrying a concealed weapon in violation of an ordinance of said city. The proceedings in the city court resulted in a judgment imposing on defendant a fine of fifty dollars. The case went on appeal to the St. Louis Court of Criminal Correction. The proceedings in that court resulted in a judgment imposing on defendant a fine of ten dollars. From this judgment defendant appealed to the Supreme Court, asserting that jurisdiction was in that court because a constitutional question was involved. The Supreme Court found that there was no constitutional question involved, and for want of jurisdiction in that court transferred the case here. [City of St. Louis v. Fitch (Mo.), 183 S.W.2d 828.]

The record before us here shows that no October 2, 1941, defendant filed in the court of criminal correction a motion to quash the complaint made and filed against him. On November 5, 1941, the motion to quash was overruled, and judgment was thereupon entered as follows:

"It is ordered by the Court that the defendant be tried by default, and the Court, having heard the evidence, and being fully advised of and concerning the premises, doth find the defendant guilty as charged. It is therefore considered and adjudged by the Court that the defendant pay a fine of ten dollars, together with the costs herein accrued and that execution issue therefor."

The complaint charges that defendant violated ordinance No. 41386, section 1692, providing that it shall be unlawful for any person to wear under his clothes or concealed about his person any pistol, or revolver, colt, billy, sling shot, cross knuckles or knuckles of lead, brass or other metal, bowie knife, razor, dirk knife, dagger or any knife resembling a bowie knife or any other dangerous weapon, in this to-wit, that defendant in the City of St. Louis and State of Missouri, on the 15th day of September, 1941, did then and there knowingly, unlawfully, and secretly wear under his clothes and concealed about his person a certain dangerous and deadly weapon commonly known as a spring-back knife.

On November 7, 1941, defendant filed a motion to set the judgment aside. The motion was overruled. Afterwards, defendant filed a further motion to set the judgment aside. The motion was overruled, and, as before stated, defendant appealed to the Supreme Court.

Defendant contends that the complaint states no offense because the ordinance pleaded does not mention a spring-back knife as a prohibited weapon. While it is true the ordinance does not mention a spring-back knife, it must be observed that it prohibits the carrying of "any other dangerous weapon", and the complaint charges that the spring-back knife carried by defendant was "a dangerous and deadly weapon." Whether or not it was a dangerous weapon within the meaning of the ordinance depends upon what the evidence shows; but the evidence is not preserved in the record before us. Defendant in his brief states that no evidence was heard, but the certified record before us explicitly recites that the judgment was rendered after the court heard the evidence and was advised of and concerning the premises. The officially certified record prevails over conflicting statements in a litigant's brief. [City of St. Louis v. Fitch, supra.]

Defendant further contends that, under the provisions of section 3843, Revised Statutes Missouri, 1939, Missouri Revised Statutes Annotated, found in the statute relating to proceedings before justices of the peace in misdemeanor cases, the court of criminal correction should have affirmed the judgment of the city court, and was without authority to hear the evidence and enter judgment thereon.

Section 3843 is as follows:

"If the judgment of the justice shall be affirmed, or, upon a trial in the court to which the appeal is taken, the defendant shall be convicted and any fine assessed, judgment shall be rendered for such fine and the costs in both courts against the defendant, and execution issue thereon, commanding the officer to levy the same of the goods and chattels of the defendant, if sufficient thereof be found; but if no property of the defendant be found, then to arrest the defendant and commit him to the county jail until he be discharged by due process of law."

Section 2254, found in the statute relating to the St. Louis Court of Criminal Correction, provides that said court shall have and exercise appellate jurisdiction in all cases of a criminal nature appealed from justices of the peace.

Section 2277 provides that all appeals from the police court of the City of St. Louis shall be made to and tried and determined by the court of criminal correction in the same manner as provided by law in regard to other cases of appeals to said court.

Section 7363, found in the miscellaneous provisions of the statute...