The City of St. Louis v. Roche
| Decision Date | 21 May 1895 |
| Citation | 31 S.W. 915,128 Mo. 541 |
| Parties | The City of St. Louis v. Roche, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Criminal Correction. Hon. Jas. R Claiborne, Judge.
Reversed.
Thos B. Harvey for appellant.
(1) The verdict is against the evidence, because there is no proof of the existence of the municipal ordinance alleged to have been violated. The existence of a law to be violated is the first essential fact in a prosecution. In the record presented there is not the slightest suggestion of any proof of the ordinance alleged to have been violated. And courts will not take judicial notice of municipal ordinances. State ex rel. v. Sherman, 42 Mo. 210; Bowie v. Kansas City, 51 Mo. 454; Inhabitants v. Robinson, 75 Mo. 192; St. Louis v. Railroad, 12 Mo.App. 591; Keane v. Klausman, 21 Mo.App. 485. (2) The verdict is against the evidence, because, first, there is no proof that the alleged associates of appellant had general reputations as thieves, pickpockets, etc.; second, and there is no proof whatever that the alleged association of the parties was for the purpose of conspiring, aiding or abetting in the commission of crime. (3) The case of City v. Fitz, 53 Mo. 582, is conclusive on appellant's behalf.
W. C. Marshall for respondent.
(1) On the record presented, the judgment is right and should be affirmed. (2) Proceedings of this character are not criminal proceedings. St. Louis v. Knox, 74 Mo. 81; Ex parte Hollwedell, 74 Mo. 395. (3) There being sufficient evidence to support the charge, and the case having been tried by the court without a jury, and no objections having been made or saved to the admission of any evidence and no instructions having been asked or given, the judgment should be affirmed. Reese v. Cook, 17 Mo.App. 512; Noland v. Bruster, 17 Mo.App. 497; Tyler v. Larimore, 19 Mo.App. 445; Bank v. Bradley, 11 Mo.App. 599; Holiday v. Langford, 13 Mo.App. 594. (4) Every presumption will be indulged in favor of the correctness of the judgment below, and the appellant must show some error committed, which this record fails to do. State v. Burns, 85 Mo. 47; Porth v. Gibert, 85 Mo. 125; Goode v. Crow, 51 Mo. 212; State v. County Court, 51 Mo. 522; Acock v. Stewart, 57 Mo. 150. (5) The same presumption flows from the acts of a court of limited jurisdiction where the jurisdiction of the court once attaches. Brooks v. Duckworth, 59 Mo. 48; (6) If the party appealing does not bring up the full record, the supreme court will infer what is necessary to sustain the judgment. Goode v. Crow, supra; State v. County Court, supra. (7) Every reasonable intendment should be made in favor of the regularity of the proceedings, until the contrary is made to appear affirmatively by the showing of the complaint. Beckley v. Skroh, 19 Mo.App. 75; Holton v. Kemp, 81 Mo. 661; Blair v. Railroad, 89 Mo. 383.
Defendant was charged in the St. Louis court of criminal correction with violating the eighth clause of ordinance number 14000, chapter 25, article 6, section 1023, of said city, by knowingly, willingly and unlawfully associating with persons having the reputation of being thieves, burglars, pickpockets, pigeon droppers and gamblers, for the purpose, and with the design and intent, of conspiring and combining with such parties to aid, abet, assist and promote them in gambling, gaming and pigeon dropping at divers gambling houses, and at places for the reception of stolen property, and which said gambling houses and places were the resort of thieves, burglars, pickpockets and pigeon droppers. The trial resulted in his conviction by the court of criminal correction and the imposition of a fine of $ 500. From the judgment rendered, defendant appealed.
The case was tried by the court without the aid of a jury. No exceptions of any kind were saved to the action of the court, except in overruling the motions for new trial and in arrest, to which exceptions were duly and timely made.
Defendants first contention is that there was no evidence to support the finding and judgment of the court. This contention is predicated of the fact that the ordinance which the defendant was charged with violating was not offered or read in evidence upon the trial.
The rule is well settled in this state that courts will not take judicial notice of the ordinances of municipalities. State ex rel. v. Sherman, 42 Mo. 210; Bowie v. Kansas City, 51 Mo. 454; Inhabitants of Butler v. Robinson, 75 Mo. 192; St. Louis v. Railroad, 12 Mo.App. 591. Keane v. Klausman, 21 Mo.App. 485. If there was any such ordinance as that described in the information, it should have been introduced in evidence, without which there was no evidence to support the finding and judgment of the court. The failure to read the ordinance in evidence did not go to the weight of the evidence merely, but without it there was an entire failure of evidence. Without it there is nothing upon which the judgment of conviction can stand. It was the very foundation upon which the prosecution was bottomed, and the only guide by which it could possibly be determined whether defendant had violated it or not, and which could not be determined otherwise than by its production in court, as a matter of evidence. A conviction could just as well be had for the forgery of a note, without producing it in evidence, or in any way accounting for its absence, so as to authorize the introduction of secondary evidence of its contents, as for the violation of a city ordinance without reading it in evidence, unless waived. We are unable to see any difference in principle.
Moreover, there was no evidence that the persons with whom defendant was charged with associating were of the disreputable character alleged in the information, or that defendant had knowledge thereof, even if it had been proven. It is true that several policemen testified that they had the reputation of being thieves, and one witness testified that the defendant Roche had once been convicted but was subsequently granted a new trial and acquitted.
We do not understand that reputation can be proven in that way, or that such evidence, if indeed it can be called such, is any proof of bad reputation, although admitted, as in this case, without objection. As a general rule, it must be proven by witnesses who are able to state that they are acquainted with the general reputation of the person whose character is in issue; and they should be able to testify from a personal knowledge of his reputation, or from knowledge which has been acquired from those who have had an opportunity to know. Reputation is not established by what may be said by a few persons who do not know what it is, even though they may say that it is bad, but must be shown by personal knowledge, or by what the people generally say. Cheritree v. Roggen, 67 Barb. 124; Davis v. Franke, 74 Va. 413, 33 Gratt. 413; Martin's Executrix v. Martin, 25 Ala. 201; Kelley v. Proctor, 41 N.H. 139.
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