St. Louis v. Babcock

• Citation: 56 S.W. 731,156 Mo. 154
• Decision Date: 08 May 1900
• Docket Number: 2
• Parties: ST. LOUIS, Plaintiff In Error, v. BABCOCK
• Court: Missouri Supreme Court

56 S.W. 731

156 Mo. 154

ST. LOUIS, Plaintiff In Error, v. BABCOCK

No. 2

Supreme Court of Missouri, Second Division

May 8, 1900

Error to St. Louis Court of Criminal Correction. -- Hon. David Murphy, Judge.

Affirmed.

B Schnurmacher and R. F. Walker for appellant.

(1) This case is a civil and not a criminal proceeding. Kansas City v. Neal, 122 Mo. 234; St. Louis v Schoenbush, 95 Mo. 618; Ex parte Holwedell, 74 Mo. 295; St. Louis v. Robinson, 55 Mo.App. 256. (2) Being a civil proceeding, all the errors of the trial court which have been properly preserved are subject to review and the error being patent of record, motions for a new trial and in arrest of judgment were not necessary. South St. Joe Land Co. v. Bretz, 125 Mo. 418; State ex rel. v Scott, 104 Mo. 26; McIntire v. McIntire, 80 Mo. 470. (3) The material error of the trial court in this case consisted in the refusal of the court to permit any testimony to be offered in support of the complaint. This action could have been based upon no other theory than that the complaint was insufficient in law. An examination of the complaint and the ordinance under which it was drawn, will demonstrate the error of this ruling. The gravamen of the offense consists in the entry into or upon the premises without the consent of the owner. This the complaint distinctly alleges; and this is all that is required. A trespass, in the strictest sense, whether under a criminal or a civil statute or a city ordinance, is an entry upon another's premises without lawful authority. (4) There are numerous cases holding that trespassers may be committed in school houses, church buildings and other public places; with much more force, then, may it be held that a trespass may be committed in a building like the Merchants Exchange which it not only conducted for the benefit and convenience of its members, but to and from which others than members may only come and go, but can not establish themselves therein for purposes of business or otherwise. No question of this nature could legitimately arise, however, in this case before a trial, and the ruling of the trial court was erroneous, and this case should be reversed and remanded.

C. M. Napton and C. H. Krum for defendant in error.

OPINION

SHERWOOD, J.

Action on city ordinance section 981 of article 17,188, of Revised Ordinances, as follows: "Trespassing upon property -- forbidden. -- It shall be unlawful for any person, without the consent of the owner or his agent, to enter on any inclosed or improved real estate, lot or parcel of ground in the city of St. Louis, or to deposit thereon, or remove therefrom any material substance, earth, dirt, ashes, refuse, turf or other article or thing whatsoever."

The complaint filed against defendant is as follows:

"State of Missouri,

City of St. Louis.

August 12, 1897.

"Austin E. Babcock,

"To the City of St. Louis, Dr.

"To $ 100 for violation of an ordinance of said city, entitled 'An ordinance in revision of the ordinances of the city of St. Louis, and to establish new ordinance provisions for the good of said city' -- being ordinance number 17188, section 981, approved April 7, 1893, in this, to-wit: In the city of St. Louis and State of Missouri on July 23, 1897, and on divers other days and times prior thereto, the said Austin E. Babcock did then and there without the consent of the owner or its agents enter upon certain improved real estate located on the west side of Third street, between Pine and Chestnut, said real estate being the property of the Merchants Exchange of St. Louis, a corporation organized and acting under the laws of the State of Missouri. Contrary to the ordinances in such case made and provided."

Defendant demurred to the...