Johnson v. City of Tulsa

• Decision Date: 10 June 1953
• Docket Number: No. A-11743,A-11743
• Citation: 258 P.2d 695,97 Okla.Crim. 85
• Parties: JOHNSON v. CITY OF TULSA.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 695

258 P.2d 695

97 Okla.Crim. 85

JOHNSON v. CITY OF TULSA.

No. A-11743.

Criminal Court of Appeals of Oklahoma.

June 10, 1953.

Syllabus by the Court.

1. Where a person charged with the violation of a municipal ordinance is convicted, and thereafter perfects an appeal to the Criminal Court of Appeals, it is the duty of the City or Municipal Attorney to brief the case on behalf of the municipality. The Attorney General of the State is required to represent only the State of Oklahoma in litigation. Tit. 74 O.S.1951 § 18b(a).

2. On a review of a municipal court judgment this court will not take judicial notice of an ordinance involved, even though the municipal or other trial court was entitled to do so.

3. In an appeal to this court where a consideration of a municipal ordinance is required, such ordinance must be reflected in the record, either by way of introduction in evidence in the trial court in accordance with and as provided by Tit. 12 O.S.1951 § 493, or set forth verbatim by the municipal court or court trying the case de novo, during trial, or in its findings, in judgment rendered, or the wording must have been agreed to by the parties and stipulation entered in the record during trial.

4. An ordinance passed by a city acting under charter provisions, which conflicts with the general laws of the State, must give way, and while it may run concurrent with the general laws of the State, it may not run counter thereto.

5. The charging part of the information herein having stated an offense where by provision of State statute covering the same offense, Tit. 47 O.S.1951 § 121.2(c) and (g), the fine could not exceed $50 and where no jail sentence could be imposed, the imposition of a greater fine and a jail sentence by the municipal court was in conflict with the State statute, and void.

Irvine E. Ungerman and Charles A. Whitebook, Tulsa, for plaintiff in error.

A. M. Widdows, City Atty. and Harry Seaton, Asst. City Atty., for defendant in error.

POWELL, Presiding Judge.

Lee Johnson, appellant, hereinafter referred to as defendant, was tried before a jury in the municipal criminal court of the City of Tulsa on a charge of leaving the scene of an accident in violation of Section 88 of city ordinance 6217 of the ordinances of 1951 of the city of Tulsa. The jury returned a verdict of guilty, but left the punishment to be assessed by the court, who assessed a fine of $69 and adjudged that defendant serve twenty days in the city jail. Appeal has been perfected directly to this court, as by law provided. Tit. 11 O.S.1951 § 763. ¹ Ordinarily appeals from municipal courts must be to the county court or court of common pleas where applicable. See Tit. 11 O.S.1951 §§ 751 to 764. But the municipal criminal court of Tulsa was created by a special act, as will be disclosed by the provisions referred to.

The city of Tulsa has been in default for a brief since July 25, 1952, although appellant on June 25, 1952 filed an exhaustive brief. Where a person charged with the violation of a municipal ordinance is convicted and thereafter perfects an appeal to the Criminal Court of Appeals, it is the duty of the city or municipal attorney to brief the case on behalf of the municipality, as the Attorney General of the State is required to represent only the State of Oklahoma in litigation. Tit. 74 O.S.1951 § 18b(a).

Concerning the appellant, this court has said that in reviewing a conviction under an ordinance that it would not examine the record where no brief was filed by the appellant. Braun v. Town of Delaware, 37 Okl.Cr. 334, 258 P. 284. Further, in a case like this we are not required to file a written opinion. A summary order is sufficient. Tit. 20 O.S.1951 § 47. Still, though a reversal would be justified without treatment, we have read the record in this case as well as the brief filed by the appellant, and by reason of proper record being made, we feel that it is in the public interest to settle a proposition of law that does not appear prior hereto to have received the attention of this court. This, in spite of the fact that the specific ground in question has not been urged by appellant in his brief. But such would have been proper.

The charging part of the information reads:

'On or about the 7 day of Nov., 1951, within the corporate limits of the city of Tulsa, Tulsa County, Oklahoma, Lee Johnson, the above named defendant, did then and there unlawfully and wrongfully while in the operation of a motor vehicle which was involved in an accident resulting in property damage to T. J. Fowler and Laura Larkins leave the scene of said accident at Atlanta between 5th and 5th Pl. in the city of Tulsa without stopping said motor vehicle and giving the name and address of said defendant, as required by Sec. 88 of Ord. 6217 of the Ord. of 1951 of the city of Tulsa, Ok., contrary to the form of the ordinances in such cases made and provided and against the peace and dignity of the State of Oklahoma.'

To support the charge set out in the information, the prosecution introduced evidence to show that the defendant drove his Cadillac car into a car owned and being operated by one T. J. Fowler and into a parked car owned by Laura Larkins, and his way being blocked, backed his car out and turning on and off his lights sped away. Witness Fowler positively so testified. The officers found the Cadillac abandoned a few minutes after the accident. When the defendant appeared at the police station soon after the accident to report that his Cadillac car had been stolen, witness Fowler promptly pointed him out as the man who had driven that car into his vehicle a few minutes earlier. It was dark and no other witness was able to identify the defendant as the driver of the Cadillac, but Fowler claimed that he had good opportunity to view the driver of the Cadillac when it bumped into the side of his car. We conclude, therefore, that the evidence was sufficient to support the allegations of the information and verdict, insofar as was involved the factual charge that the defendant did drive his car into the vehicles named, and that thereafter he sped away from the scene. Coats v. State, 90 Okl.Cr. 217, 212 P.2d 141, 214 P.2d 455.

The court overruled a demurrer of the defendant challenging the sufficiency of the evidence. If judicial notice was taken of the ordinance involved, the record does not so show. More will be said about this later.

The defendant then offered his evidence. He testified and specifically denied that he was driving his car at the time of the collision, but stated that he was riding with a Mr. and Mrs. Oakley at the time, after calling at the home of a Mr. Sewell in an effort to sell Sewell the Oakley Oldsmobile. He claimed to have left his Cadillac parked in front of a T. G. & Y. store and found it gone on return. Defendant produced corroborative evidence, though the time element was very close. The State offered two rebuttal witnesses concerning some collateral matters bearing on the credibility of defendant's statements. We do not deem greater detailed summary of the evidence necessary. Thus the case closed and defendant renewed his demurrer.

The court thereupon instructed the jury, though he failed to instruct on defendant's theory of the case. The defendant did not object to the instructions actually given, or offer any requested instructions, other than that the jury be instructed to return a verdict in favor of the defendant. The action of the court in overruling the demurrers was assigned as error in the motion for new trial, and also in the petition in error on appeal. The record fails to show that the court actually took judicial notice of the ordinance involved. If he did, and he had the ordinance book available he could have dictated the provisions of the ordinance into the record to justify his ruling, but failed to do so.

Thus we come to a consideration of a basic and fundamental question that seems necessary for treatment in a solution of this case.

It has been noted that the defendant was charged with the violation of Section 88 of Ordinance 6217 of the Ordinances of 1951 of the city of Tulsa, but the ordinance was not further plead in the information, and no evidence was introduced to prove the section of the ordinance in question. This might have been accomplished by a certified copy of such provision, certified by the City Clerk of the City of Tulsa. Tit. 12 O.S.1951 § 493. As indicated, the municipal court if it took judicial notice of the ordinance, as it apparently did, failed to make findings detailing verbatim the terms thereof. By Tit. 11 O.S.1951 § 758, it is provided as to cases properly appealable from municipal court to county courts: 'In the trial of said cause in the county court it shall be the duty of the court to try the case in the same manner that it should have been tried before the municipal court, except that upon demand of either a party a jury shall be called to try the issues joined in said cause. The ordinance of the city need not be introduced in evidence, and the county court shall take judicial notice of the corporate existence of the city and of the provisions of its ordinances.'

There was no stipulation as to the ordinance and wording.

Unless this court may take judicial notice of municipal ordinances the prosecution failed to make out a case against the defendant. There is no statutory provision in Oklahoma requiring the Criminal Court of Appeals to take such notice. In civil actions, the Supreme Court of Oklahoma from the beginning has held that it would not take such notice, but that such ordinances must be proven the same as any other fact. The manner of proof is detailed by Tit. 12 O.S.1951 § 493, and there is no provision that it is limited to civil cases. See Cunningham v. Ponca City, 27 Okl. 858, 113 P. 919; Bradley v. Renfrow, 184 Okl. 25, 84 P.2d 430; Firemen's Relief, etc. of Holdenville v. Lucas, 189 Okl. 328, 117 P.2d 112; Barton v....