City of Union v. Lindemann

• Decision Date: 06 June 1922
• Docket Number: No. 16622.,16622.
• Citation: 242 S.W. 416
• Parties: CITY OF UNION v. LINDEMANN.
• Court: Missouri Court of Appeals

242 S.W. 416

CITY OF UNION v. LINDEMANN.

No. 16622.

St. Louis Court of Appeals. Missouri.

June 6, 1922.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

B. H. Lindemann was convicted of a violation of an ordinance of the City of Union prohibiting the running of chickens at large, and appeals. Reversed.

John W. Booth, of Union, for appellant.

D. W. Breid a ad J. M. Owen, City Atty., both of Union, for respondent.

BRUERE, C.

The defendant, appellant here, was convicted before the police judge of the city of Union, Mo., upon an information charging him with a violation of an ordinance of that city.

The information charges that the defendant, "on the first day of April, 1918, at the said city of Union, and within the corporate limits thereof, did then and there unlawfully and willfully permit his the said E. H. Lindemann's chickens to run at large upon the streets and other property in the city of Union, Mo., in violation of section 4, chapter 15, Revised Ordinances of the City of Union, Missouri," etc.

The case was appealed to the circuit court, where, upon a trial anew, defendant was convicted and judgment rendered against him. From that judgment he prosecuted this appeal.

That part of the city ordinance upon which this prosecution is based reads as follows:

"Section 1. It shall be unlawful for the owner of any domestic fowl to permit the same to be at large within the city limits outside the inclosure of such owner, or pasture provided for that purpose. * * *

"Sec. 4. It shall be unlawful for the owner or keeper of domestic pigeons or chickens to permit the same to fly or be at large within the city limits. * * *

"The owner or `Keeper of any domestic animals or any domestic fowls referred to in this chapter who shall willingly violate the provisions of this chapter by permitting such animal or fowl to be at large, shall be guilty of a misdemeanor, and on conviction shall be fined in a sum not less than one dollar nor more than twenty-five dollars for each violation."

At the trial in the circuit court the evidence tended to show that defendant's chickens were at large on the streets of Union on April 1, 1918 (the date charged in the information), and at different times extending back to a period prior to the passage of said ordinance.

At the close of plaintiff's evidence, the court, on defendant's motion, required the plaintiff to elect for what particular alleged violation of the ordinance it would prosecute the defendant; and thereupon plaintiff elected to prosecute defendant upon the alleged violation of the 1st day of April, 1918.

The evidence was undisputed that on April 1, 1918, and for some weeks prior thereto, the defendant maintained on his premises a good and suitable wire fence in which his chickens were kept.

It further appears from the evidence that the escape of defendant's chickens from the pen, on April 1, 1918, was by reason of the gate to the pen being left open. There was no evidence that the gate was intentionally 'Left open, or that the chickens were at large with the knowledge or consent of the defendant, or that their escape from the pen was by reason of any negligence on his part.

At the close of all the evidence, the defendant interposed a demurrer to it which the court overruled, proper exceptions being taken at the time.

The sole question raised by the appeal is whether or not the trial court should have directed a verdict in favor of the defendant on the ground that...