Opinion
No. 28707.
June 16, 1953. Rehearing Denied July 10, 1953.
APPEAL FROM THE CITY COURT NO. 2 OF THE CITY OF ST. LOUIS.
Not to be reported in State Reports.
DeWitte T. Lawson, St. Louis, Ignatius Page, Jr., pro se, for appellant.
James E. Crowe, City Counselor, Wm. H. Freivogel, Roy A. Fish, Asst. City Counselors, St. Louis, for respondent.
This is an appeal from a judgment of the St. Louis Court of Criminal Correction finding defendant guilty of disturbance of the peace and assessing his punishment at a fine of $500 and costs. This litigation originated in City Court No. 2 of the City of St. Louis by way of a Report of the Chief of Police charging defendant with violation of Ordinance No. 44886, Chapter 46, Sec. 20, in that in said City on April 8, 1952 defendant "did then and there wilfully disturb the peace of others, and particularly of Lena Page by violent, tumultuous, offensive and obstreperous conduct and carriage, and by loud and unusual noises and by unseemly, profane, obscene and offensive language, calculated to provoke a breach of the peace, and by assaulting, striking and fighting others and particularly Lena Page Ethel Page." Upon trial in the City Court defendant was convicted and fined $500. He appealed to the St. Louis Court of Criminal Correction. In that court defendant filed a motion to quash or dismiss the charge on the ground that in prosecuting him criminally for a misdemeanor by way of a police report defendant was denied due process of law under the Constitution of Missouri, Article I, Section 17, V.A.M.S., providing that "no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information". In his motion defendant demanded that the City Counselor state the nature and cause of his accusation under Constitution of Missouri, Article I, Section 18(a), which provides that in criminal prosecutions the accused shall have the right "to demand the nature and cause of the accusation". The motion was overruled and the cause was submitted to the court. The judge found defendant guilty and fined him $500 and costs. From that judgment defendant, after an unavailing motion for new trial, has appealed to this court.
There is no constitutional question requiring the transfer of this case to the Supreme Court because (1) the constitutional question was not raised at the first opportunity (in the proceedings in the City Court) nor was it kept alive in the motion for new trial, and (2) the precise constitutional question heretofore has been determined by the Supreme Court. Since the appeal is from a conviction of a misdemeanor the Court of Appeals would have jurisdiction but for the constitutional question, so we will proceed to determine the matter. City of St. Louis v. Ward, Mo. App., 223 S.W.2d 847.
For his first point appellant contends that since the ordinance under which he was charged makes the charge a misdemeanor the ordinance is void because it is inconsistent and out of harmony with the general laws of the State upon the subject. The ordinance provides that
"Any person who shall disturb the peace of others by noisy, riotous or disorderly conduct, or by violent, tumultuous, offensive or obstreperous conduct or carriage, or by loud and unusual noises, or by unseemly, profane, obscene, indecent, lewd or offensive language, calculated to provoke a breach of the peace, or by assaulting, striking or fighting another in any park, street, alley, highway, thoroughfare, public place or public resort within the city, or any person who, in the city, shall permit any such conduct in or upon any house or premises owned or possessed by him or under his management or control, so that others in the vicinity are disturbed thereby, shall be deemed guilty of a misdemeanor."
The general law upon the subject is found in § 562.240 RSMo 1949, V.A.M.S. Appellant has failed to point out in what respect the local and general laws are inconsistent. The wording of the two is quite similar. Both declare disturbance of the peace to be a misdemeanor. We have read and compared the two sections and find them entirely consistent and harmonious. The point is ruled against appellant.
For his second point, which appears in his brief under the title "Points and Authorities", the following appears: "The burden of proof rests upon the City and remains throughout the trial. [City of] Columbia v. Johnson, 72 Mo.App. 232. And since it has to do with the personal liberty of the citizen the guilt of the Defendant must be shown beyond a reasonable doubt. [Town of] Glendwood [Glenwood] v. Roberts, 59 Mo.App. 167; [City of] St. Louis v. Dorr, 136 Mo. 370, 37 S.W. 1108."
This does not constitute an assignment of error raising any legal point and does not pose any legal question for our decision.
Appellant's third point is that he was tried upon a Chief of Police Report instead of a statement or information filed by the City Counselor. Sec. 26 of Chapter 15 of the Revised Code of the City of St. Louis, 1948, provides that in cases where a person is arrested "a trial shall be had upon the written report of the chief of police, * * * but the party so arrested may require of the city counselor or his representative a written statement setting forth the nature of the offense charged and the ordinance under which the charge is brought." Appellant's point is that a criminal proceeding for the recovery of a fine is a prosecution which must be conducted by way of a statement or information and not by way of a Chief of Police Report and that therefore the City Court acquired no jurisdiction and its judgment and the subsequent proceedings are void. The self-same point was ruled contrary to appellant's contention by the Supreme Court in Ex parte Hollwedell, 74 Mo. 395, and by the Kansas City Court of Appeals in City of Marshall v. Standard, 24 Mo.App. 192. The reason that prosecutions for violations of city ordinances may be based upon a Police Chief Report rather than an information is that the violation of a city ordinance is not regarded as a criminal offense in the sense in which the term "prosecuted criminally" is used in the constitution. It is considered that a local ordinance passed for the promotion of the preservation of peace and good order in a particular locality and enforced by the collection of a pecuniary penalty is penal rather than criminal. While Sec. 26, supra, provides that the party arrested may require of the City Counselor a written statement setting forth the nature of the offense charged and the ordinance under which the charge is brought, we are not prepared to say that in this case the failure of the City Counselor to file a written statement in addition to the Chief of Police Report requires the reversal of this conviction. In the first place appellant waived the matter by failing to make such a request in the City Court. Furthermore, although we do not find a written statement signed by the City Counselor in the record, the City Court transcript does recite that the "information" was seen and heard by appellant, and we may therefore conclude that an information was filed. Even in the absence of a written statement or information, however, in this particular case the Chief of Police Report was written up in as full, complete and detailed a manner as any properly drawn information might have been. It clearly, and in the language of the statute, sets forth the nature of the offense charged, and states the particular section of the ordinance, chapter and volume of the Code under which the charge was brought. It was sufficient as a peace disturbance charge under the ruling of this court in State v. Bourn, Mo.App., 160 S.W.2d 456. By the Chief of Police Report defendant was as fully informed of the nature of the charge and of the particular ordinance involved as if he had been charged by way of a statement or information, and no prejudice to his rights on this ground is apparent.
No error appearing, it is the recommendation of the Commissioner that the judgment of the St. Louis Court of Criminal Correction be affirmed.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the St. Louis Court of Criminal Correction is, accordingly, affirmed.
BENNICK, P. J., ANDERSON, J., and DEW, Special Judge, concur.