State v. Weeks, 33467.
| Decision Date | 31 December 1943 |
| Docket Number | No. 33467.,33467. |
| Citation | 216 Minn. 279,12 N.W.2d 493 |
| Parties | STATE v. WEEKS. |
| Court | Minnesota Supreme Court |
Appeal from Municipal Court of Minneapolis; William A. Anderson, Judge.
Gerald Weeks was convicted of driving an automobile upon the public streets of Minneapolis while under the influence of intoxicating liquor in violation of Minneapolis traffic ordinance, and, from an order denying his motion for a new trial, he appeals.
Order affirmed.
Jay W. Smith and T. M. Thomson, both of Minneapolis, for appellant.
Richard S. Wiggin, City Atty., and Milton Gershin and Jos. A. Hadley, Asst. City Attys., all of Minneapolis, for respondent.
Defendant was convicted of the offense of driving an automobile upon the public streets of the city of Minneapolis while under the influence of intoxicating liquor in violation of § 2(F) of the Minneapolis traffic ordinance. He was sentenced to 30 days' imprisonment in the workhouse and appeals from the order denying his motion for a new trial.
1. Defendant urges that the evidence is insufficient to sustain the conviction. A brief recital of the facts will be made.
On the evening in question the defendant came off Laurel avenue in the city of Minneapolis and turned north on Lyndale avenue. He made a wide turn and about 30 feet north of the intersection struck and damaged a car which was proceeding southerly on its own right-hand side of the avenue. Both cars came to a stop. The driver of the car which was struck testified that defendant had been drinking. Another driver who was present at the time of the accident said he smelled liquor on defendant's breath, but had formed no opinion as to whether or not defendant was under the influence of intoxicating liquor. Two police officers who came to the scene of the accident and who later took defendant to the station stated that there was a strong odor of alcohol on his breath, that he staggered while walking, that his speech was rambling, and that in their opinion he was intoxicated. In the front seat of his automobile a pint bottle of liquor was found, one-third empty. At the trial defendant admitted he had had four drinks of liquor that evening. The evidence clearly supports the conviction.
2. Defendant questions the validity of the ordinance under which he was convicted.
He claims it provides for a greater penalty than that of the state law. The part of the ordinance (§ 2 [G]) which he questions reads:
The penalty provision of the state law covering the same offense (Minn.St.1941, § 169.12, Mason St.1940 Supp. § 2720-176) is: "Every person who is convicted of a violation of this section shall be punished by imprisonment for not less than ten, nor more than 90, days or by a fine of not less than $10.00, nor more than $100.00."
Under the state law, therefore, a court has the option of imposing a jail sentence or a fine. Under the ordinance there is no option.
The maximum punishment by imprisonment in either case is fixed at 90 days. One is not greater than the other. If the ordinance had only provided for a fine not exceeding $100, no one would question its validity. In State v. Marciniak, 97 Minn. 355, 358, 105 N.W. 965, 966, the court comments: "It is just as certain that the penalty imposed by the ordinance is within `the extent' or limit imposed by the charter as it is that the greater includes the less."
The fact that the penalty provided for is not the same under the ordinance and the state law does not make the ordinance invalid, as long as the penalty clause does not exceed the authority granted to the city council.
In City of Jordan v. Nicolin, 84 Minn. 367, 369, 87 N.W. 915, 916, this court passed upon the question. It states: ...
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