State v. Muir , 164 Mo. 610 ( 1901 )

SHERWOOD, P. J.

— Prosecuted by indictment, under the statute for gaming, defendant entered a plea of autre fois convict, to the effect that he had been previously convicted of the same offense under an ordinance of the city of Mexico, which that city had power to pass, which said ordinance forbade any one to play poker, etc., under a penalty and limit of not. less than $5 nor more than $100; that defendant appeared before the police judge of the city and pleaded guilty of violating such ordinance and was thereupon fined in the stun of $5, which sum and costs defendant afterwards paid.

An agreed statement of facts was filed by the parties to the record in the circuit court, which statement accompanies this opinion and shows that defendant had pleaded guilty in the police court, and was then being prosecuted under the pending indictment for playing the same game of poker. On this basis of fact, the trial court found in favor of the State and against the plea in bar, and defendant appeals.

The sole issue thus raised before the trial court was, whether a conviction under a city ordinance of an offense would be a bar against a prosecution for the same act under a statute of this State. The pertinency of the italicization of the word act, will presently appear. •

It is apparent from'the case of State v. Simonds, 3 Mo. 292, and other cases which followed in its wake, cited in the opinion of Bland, P. I., where the judgment of the lower court was affirmed, that such a plea as here discussed, would, under those rulings, have been successful. But later rulings of this court have thrown a different light on the subject of the nature of a city ordinance, and thus caused doubt to arise as to the correctness of our former rulings.

Kansas City v. Clark, 68 Mo. 588, was the John the Baptist to make the initial announcement .in this State, that violation of a city ordinance was not a crime; this court there saying: “Nor do we regard the violation of the ordinance under consideration as a crime, since ‘a crime is an act committed in violation of public law’ (4 Black. Oom. 5), a law co-extensive with the boundaries of the State which enacts it. Such a definition is obviously inapplicable to a mere local law or ordinance passed in pursuance of, and in subordination to, the general or public law for the promotion or the preservation of peace and good order in a particular locality, and enforced by the collection of a pecuniary penalty.” These utterances were approvingly quoted and followed in Ex Parte Hollwedell, 74 Mo. 395 (where habeas corpus was held the proper remedy to determine the constitutionality of 'an ordinance of the city of St. Louis, though afterwards, in Ex parte Boenninghausen, 91 Mo. 301, it was ruled that habeas corpus would not lie to test the constitutionality of a municipal ordinance). In City v. Knox, 74 Mo. 79, a similar ruling was made as to the noncriminal nature of a prosecution for violation of a city ordinance. To like effect is St. Louis v. Weitzell, 130 Mo. 600.

These deliverances of this court thus establishing that a prosecution under a city ordinance was but a civil action, necessarily precluded the idea of a conviction of violating such ordinance from being pleaded in bar of a prosecution by the State of a crime based on a violation of a State statute, which prosecution rests on the same foundation of fact as did the act for doing which the city first moved against the defendant. In a plea in bar to the prosecution of the State, the defendant-must allege and prove that he is prosecuted for the same crime of which he had been autre fois convict, or autre fois acquit, in a prior prosecution, by tbe city. But- this he can not prove, if the proceeding instituted by the city was but a civil action.

These features were well presented by Gantt, P. J., in State v. Gustin, 152 Mo. 108, where, although the point under discussion was not directly presented or decided, yet the reasoning in that case, which the St. Louis Court of Appeals followed, inevitably led to the result announced by that court. And on this point it is said by an eminent author: “Indeed, an act may be a penal offense under the laws of the State, and further penalties, under proper legislative authority, be imposed for its commission by municipal by-laws, and the enforcement of the one would not preclude the enforcement ,of the other.” [Cooley’s Const. Lim. (6 Ed.), p. 239, and cases cited.] This, he says, is the clear weight of authority, though the decisions are not uniform.

Eor these reasons the judgment of the St. Louis Court of Appeals is affirmed.

All concur.