Webb City v. Parker

• Citation: 103 Mo. App. 295,77 S.W. 119
• Court: Missouri Court of Appeals
• Decision Date: 09 November 1903
• Parties: WEBB CITY v. PARKER.<SMALL><SUP>*</SUP></SMALL>

77 S.W. 119

103 Mo. App. 295

WEBB CITY v. PARKER.^*

Court of Appeals at Kansas City, Missouri.

November 9, 1903.

CITY ORDINANCE—VIOLATION — PROSECUTION —PROOF—SELLING LIQUOR ON SUNDAY—INDICTMENT—EVIDENCE—DATE OF SALE.

1. In a prosecution for violation of a city ordinance the city attorney testified that the city clerk, who, under Rev. St. 1899, § 5774, is legal custodian of all records belonging to the city, delivered to him the ordinance in question, and that he kept the same in his office; that it was signed by the mayor, president pro tem. of the council, and clerk; that the last sheet, on which their names were written, had within a few days before the trial been carried away by some one, and that it was the original and only ordinance of the kind in existence, there being no published or certified copy. The city clerk testified that the ordinance in the hands of the city attorney was recorded in the ordinance book in which all ordinances were recorded. He produced the journal of the council, which showed that at a regular session the ordinance was read a second and third time and passed. The journal further recited that the ordinance was duly approved. This entry was approved by the mayor, and attested by the clerk. Held, that the ordinance was sufficiently proved.

2. Where an indictment for a violation of a city ordinance prohibiting a sale of liquor on Sunday charged that the sale was made on a certain Sunday, evidence that it was made on a different Sunday within a year before the finding of the indictment is sufficient to support the conviction.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Action by the city of Webb against C. A. Parker. From a judgment for plaintiff, defendant appeals. Affirmed.

Geo. E. Booth, for appellant. W. J. Owen, for respondent.

SMITH, P. J.

An ordinance of plaintiff city, entitled "Council Bill No. 259—Ordinance No. 19—Misdemeanors," provided that whoever should "keep open any ale or porter house, grocery or tippling shop, or sell or retail any fermented or distilled liquors at any time on the first day of the week commonly called Sunday," should be deemed guilty of a misdemeanor, and be punished by fine, etc. The defendant was prosecuted and convicted on an information based on the above-quoted ordinance provision. The cause was removed into the circuit court, where on a trial anew the defendant was convicted, and from that judgment has appealed here.

The complaint, while not as formal and specific in its averments as it might have been, is nevertheless, we think, sufficient. The evidence was ample to prove the violation of the ordinance as charged in the complaint.

The defendant insists that the ordinance on which the prosecution was based was never passed by the plaintiff city, and that there was no valid ordinance in existence prohibiting the act charged or authorizing the prosecution. The city attorney testified that the city clerk, the legal custodian of all the records and papers belonging to the city (section 5774, Rev. St. 1899), delivered to him said Ordinance No. 19 (Council Bill No. 259), and that he had kept the same in his office; that it was signed by the "mayor," "president of the council pro tem.," and "clerk"; that the last sheet, on which their names were written, had within a few days before the trial been torn off and carried away by some one to him unknown, and that it was the original and the only ordinance of the kind in...