State v. Poynter

• Decision Date: 18 May 1950
• Docket Number: No. 7582,7582
• Citation: 70 Idaho 438,220 P.2d 386
• Parties: STATE v. POYNTER.
• Court: Idaho Supreme Court

Page 386

220 P.2d 386

70 Idaho 438

STATE v. POYNTER.

No. 7582.

Supreme Court of Idaho.

May 18, 1950.

Rehearing Denied July 10, 1950.

Robert E. Smylie, Atty. Gen., and J. R. Smead, Asst. Atty. Gen., for respondent.

Walter H. Anderson, Pocatello, for appellant.

KEETON, Justice.

Defendant Poynter (appellant here) was charged in police court with the crime of driving an automobile on the streets of Pocatello while under the influence of intoxicating liquor, the charging part of the complaint being as follows: 'That the said Forest Lee Poynter did, on or about the 3 day of March, 1949, at Lewis & Railroad Ave. in the City of Pocatello, State of Idaho, wilfully and unlawfully and in violation of Revised City Ordinance 7-402, operate an automobile bearing License No. 1B 5958 Idaho 48 while under the influence of intoxicants.'

On arraignment in police court, appellant pleaded not guilty, was tried and found guilty. On appeal to the district court of Bannock County, he was tried anew on April 16, 1949, and again found guilty. Appellant made motions in arrest of judgment and for judgment notwithstanding the verdict, which the court denied, and was sentenced to pay a fine of $100.00. From the judgment of conviction in the district court he appealed.

Appellant assigns error and contends:

The ordinance under which the proceedings were had is invalid, unconstitutional and void and there is no authority for a municipality to pass such an ordinance since the state laws of the State of Idaho have covered the entire field attempted to be covered by the ordinance.

The City of Pocatello is a municipal corporation of the first class so declared by proclamation dated February 4, 1921, and possesses the power of cities and villages and such additional power as has been conferred upon it by law. Art. 12, Sec. 2, of the Idaho Constitution provides: 'Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.'

Sec. 50-130, Idaho Codes, grants municipal corporations the following right: '* * * to control and limit the traffic on streets, avenues and public places; * * *'

Sec. 49-202, I.C., Uniform Motor Vehicle Act, provides: '* * * nor shall this chapter be construed so as to prevent cities and incorporated villages of this state from enacting and enforcing general ordinances prescribing additional rules and regulations as to the speed or manner of driving or operating motor vehicles on any of the streets of such cities or villages, * * *.'

Sec. 50-1109, I.C., is a general grant of power for the enactment of ordinances in cities that are not inconsistent with the laws of the state.

Driving a motor vehicle on any highway within this state while under the influence of intoxicating liquor is made an offense under the state law. Sec. 49-502, I.C.

The ordinance under which the prosecution was had is in substance the same as Sec. 49-502, I.C., and under the state laws, the offense is a misdemeanor triable in the probate or justice courts, and the ordinance in question does not conflict, nor is it inconsistent with the state statute.

The state and a municipal corporation may have concurrent jurisdiction over the same subject matter and in which event the municipality may make regulations on the subject notwithstanding the existence of state regulations thereon, provided the regulations or laws are not in conflict.

The mere fact that the state has legislated on a subject does not necessarily deprive a city of the power to deal with the subject by ordinance. 43 C.J., § 217, page 214; 62 C.J.S., Municipal Corporations, § 143, page 286; State v. Preston, 4 Idaho 215, 38 P. 694; State v. Musser, 67 Idaho 214, 176 P.2d 199; State v. Romich, 67 Idaho 229, 176 P.2d 204.

A municipal corporation may exercise police power on the subjects connected with municipal concerns, which are also proper for state legislation.

We therefore conclude that under the constitutional provision and legislative acts and authorities above quoted, the City of Pocatello had authority to enact and enforce the ordinance in question.

The second contention of appellant is that the purported complaint on which the proceedings were had was signed by an officer and left at the police station the night the appellant was arrested and was not signed and verified before the police judge. Hence, the proceedings thereafter had were void.

The complaint is regular on its face. The appellant made no preliminary motion to quash the complaint and entered a plea of not guilty. The attack on the complaint, if any, should have been made prior to the plea by motion to quash, or dismiss, or other appropriate proceedings, and the matter complained of should have been called to the attention of the police or district judge.

No objection to the complaint having been made, no motion to quash, and no showing made as to the matters complained of, defects in the complaint, if any, were waived. Further, there is nothing in the transcript that definitely establishes that the officer did not appear before the magistrate. If we assume he did not, the same cannot be taken advantage of after conviction. State v. Clark, 4 Idaho 7, 35 P. 710; State v. Collins, 4 Idaho 184, 38 P. 38; In re Marshall, 6 Idaho 516, 56 P. 470; In re Bates, 63 Idaho 748, 125 P.2d 1017; Ex parte Murray, 39 Nev. 351, 157 P. 647; State v. Holt, 47 Nev. 233, 219 P. 557.

Appellant contends that no judgment was entered in the police court for which reason the district court never acquired jurisdiction to try him or to render judgment, or impose sentence. The docket entry of the police judge shows that the defendant entered a plea of not guilty, was found guilty and fined $100.00 and driver's license revoked for one year. This must be the judgment from which the appellant appealed. The penalty in the ordinance does not provide for the revocation of the driver's license, but as the case was tried anew in the district court, the action of the police judge in this regard is not before us for review. The appeal here taken is from the judgment imposed by the district judge. We conclude that district court had jurisdiction.

The appellant's fourth proposition submits that error was committed in admitting the ordinance in evidence. The Revised Ordinances of the City of Pocatello (State's exhibit 'A') was admitted, which book contains the ordinance under which appellant was prosecuted. In addition, the ordinance as certified by the city clerk and mayor was admitted. The proceedings followed to prove the ordinance were the same as approved in City of Idaho Falls v. Grimmett, Simpson et al., 63 Idaho 90, 117 P.2d 461.

Sec. 50-2005, I.C., provides: 'All ordinances shall be passed pursuant to such rules and regulations not inconsistent with the general laws relating thereto as the council or board of trustees may provide; and all such ordinances may be proved by the certificate of the clerk under the seal of the city or village, and when printed or published in book or pamphlet form by authority of the city or village, shall be read and received in evidence in all courts and places without further proof.'

The ordinance book, certified copy of the ordinance and other proof admitted, constitute prima facie evidence that the ordinance was in effect. State v. Clark, 47 Idaho 750, 278 P. 776.

Appellant complains that after the state rested its case, on motion of the city attorney, the judge permitted the case to be re-opened and further evidence introduced. The re-opening of the case and admission of further evidence was discretionary with the trial court.

Appellant further contends that at the time of the arrest he was taken to jail and confined without any warrant of arrest, or for any crime that had been committed in the presence of any officer, and that such arrest was illegal and void, and therefore by innuendo he could not be prosecuted. Where the accused is personally before the court, the jurisdiction of the court to try him is not impaired by the manner in which he is brought before the court.

The remedy of the appellant, if any, does not go to the limits of the prosecution, and has no bearing on the question of whether he is guilty or innocent, and such illegal arrest, if it was, is no reason why he should not answer the charge against him when brought before a tribunal having jurisdiction. The manner of arrest is not cause for exemption from prosecution and it follows that he is not wronged by being subjected to the jurisdiction, even if his detention in the first instance was unlawful. If the means of arrest were unlawful it could not be chargeable to the state sovereignty, and would furnish no reason for discharging the prisoner and not proceeding with the prosecution. In re Moyer, 12 Idaho 250, 85 P. 897, 12 L.R.A.,N.S., 227, 118 Am.St.Rep. 214.

We find no reversible error. Judgment is affirmed.

HOLDEN, C. J., and GIVENS, PORTER and TAYLOR, JJ., concur.

On Petition for Rehearing

KEETON, Justice.

Appellant, Poynter, has filed a petition for rehearing in which he asserts: 'that the Court committed an error in holding that the city ordinance involved herein was valid, as the great weight of authority is against the validity of any city ordinance upon a subject the entire field of which has been covered by State law;' and further asserts: 'it will be observed in reading the State statute that for the first offense the punishment is not less than thirty days nor more than six months in jail, or fine of not less than $100.00 nor more than $300.00 * * * and upon the second conviction the convicted party shall undergo imprisonment in the State penitentiary * * * for not less than two...