State v. Quong

• Decision Date: 15 January 1902
• Citation: 67 P. 491,8 Idaho 191
• Parties: STATE v. QUONG
• Court: Idaho Supreme Court

67 P. 491

8 Idaho 191

STATE v. QUONG

Supreme Court of Idaho

January 15, 1902

CONSTITUTIONAL LAW-CITY ORDINANCES.-Under the provisions of section 2 article 12, of the constitution of Idaho, cities have the power to make and enforce police regulations punishing misdemeanors, notwithstanding there is a general law of the state defining and punishing the same offense.

EVIDENCE.-Evidence that the complaining witness was bruised may be given upon the trial of a criminal action by a witness who examined such complaining witness the day following the battery charged where such evidence is not relied on to prove the corpus delicti.

(Syllabus by the court.)

APPEAL from District Court, Ada County.

Affirmed.

Hawley & Puckett and Silas W. Moody, for Appellant.

"Battery" is an offense against the laws of the state of Idaho and is defined at section 6729 of the Revised Statutes. Charters of municipal corporations are special grants of power from the sovereign authority, and must be strictly construed. Whatever power is not expressly given, or as the necessary means to the execution of expressly given powers, is withheld. (Douglas v. Mayor of Placerville, 18 Cal. 644; Beatty v. Knowles, 4 Pet. 168; Pennsylvania Ry Co. v. Canal Co., 21 Pa. 9-22; People v. Utica Ins. Co., 15 Johns. 357; Blair v. Perpetual Ins. Co., 10 Miss. 559; notes to Robinson v. Mayor etc., 34 Am. Dec. 627, and to Dillon on Municipal Corporations, 89.) Section 2 of article 12 of the constitution of Idaho states: "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." This court, in In re Ridenbaugh, 5 Idaho 371, 49 P. 12, declared that the section of the constitution referred to "authorized the council of Boise City to make and enforce ordinances that are not in conflict with the general laws, and forbids the making and enforcing of any ordinance in conflict with the general laws." There is such a conflict when a city ordinance punishes precisely the same acts which are punishable under the general laws of the state. (In re Sic, 73 Cal. 142, 14 P. 405; Ex parte Christensen, 85 Cal. 211, 24 P. 747; Ex parte Mansfield, 106 Cal. 405, 39 P. 775; Ex parte Stephen, 114 Cal. 282, 46 P. 86; In re Ah Kit, 45 F. 794; In re Lee Long, 9 Saw. 333, 18 F. 253; Indianapolis v. Blythe, 2 Ind. 75; New Orleans v. Miller, 7 La. Ann. 651; Municipality v. Wilson, 5 La. Ann. 747; 1 Dillon on Municipal Corporations, 3d ed., 366 et seq.; Endlich on Interpretation of Statutes, secs. 35-40; Ex parte Hongshen, 98 Cal. 685, 33 P. 799; Ex parte Taylor, 87 Cal. 96, 25 P. 258; Dillon on Municipal Corporations, sec. 368; People v. Brown, 2 Utah 462; Ex parte Bourgeois, 60 Miss. 669, 45 Am. Rep. 420.)

Attorney General Frank Martin, for Respondent.

The first error assigned is that the council of Boise City had no power to provide by ordinance for the punishment of acts which were made punishable by the statutes of the state. This question has already been passed upon by this court and the cases cited by appellant have been considered, and this court expressly refused to follow the doctrine laid down in said decisions, and decided in a well-considered opinion that under the weight of authority there was no conflict between such ordinance and the general law of the state. (State v. Preston, 4 Idaho 215, 38 P. 695.) An exception to an order denying a new trial must be saved in a bill of exceptions as provided for in the statutes of this state. (State v. Larkins, 5 Idaho 200, 47 P. 945.) The failure of appellant to have his exception to the order of the court overruling his application for a new trial saved in a bill of exception leaves this case as though it was an appeal from a judgment alone. And an objection that the evidence does not support the verdict in a criminal case cannot be reviewed on an appeal from the judgment. (People v. Pierson, 2 Idaho 76, 3 P. 688; United States v. Camp, 2 Idaho 231, 10 P. 226.)

QUARLES, C. J. Sullivan and Stockslager, JJ., concur.

OPINION

QUARLES, C. J.

The appellant was prosecuted in the police magistrate's court of Boise City upon the charge of battery, and from the judgment therein rendered an appeal was taken to the district court of the third judicial district, in and for Ada county, where, upon a trial de novo, the appellant was convicted by a jury of his selection, and sentenced to pay a fine of seventy-five dollars and the cost of the action; and from the judgment of the said district court the appellant appeals to this court. The appellant moved for a new trial in the court below, which was denied, and he also appeals from the order denying him a new trial.

One of the grounds of the motion for a new trial was the insufficiency of the evidence to support the verdict, and a number of particulars wherein appellant claims that the evidence was insufficient are specified in the statement on motion for a new trial. We have carefully examined the evidence, and find that there was a substantial conflict therein; evidence on behalf of the state tending to prove the charge, and evidence on behalf of the appellant tending to disprove the same. Under repeated decisions of this court, and under the overwhelming weight of authority, the verdict of the jury rendered under such circumstances will not be disturbed.

The first error of law assigned and relied upon for a reversal is that the court erred in overruling the appellant's objection to the introduction of any evidence under the complaint on the ground that it did not state a public offense. It is not questioned that the complaint states specifically acts constituting the crime of battery, but counsel for appellant insists that, inasmuch as battery is a...