Opinion
No. 27471.
November 12, 1928. Suggestion of Error Overruled December 10, 1928.
1. CRIMINAL LAW. Presumption prevails in favor of correctness of judgment fixing penalty pursuant to agreement for considering ordinance without production thereof ( Hemingway's Code. 1927, sections 6956, 6784).
Where it was agreed in prosecution for unlawful possession of liquor that there was an ordinance against offense which might be considered as introduced in evidence without production thereof, the presumption in favor of the correctness of judgment fixing penalty, as authorized by Hemingway's 1927 Code, sections 6956, 6784 (Code 1906, sections 3410, 3348), will prevail.
2. CRIMINAL LAW. Provision of judgment ordering defendant into custody of sheriff until one-hundred-dollar fine was paid and thirty-day sentence served held erroneous.
Provision of judgment after conviction for unlawful possession of liquor, ordering defendant into custody of sheriff until fine of one hundred dollars was paid and sentence of thirty days was served, held erroneous, in that imprisonment was correctly ordered to be served in town jail.
APPEAL from circuit court of Pontotoc county, HON. C.P. LONG, Judge.
Gore Gore, for appellant.
An agreement was made to the effect, that at the time of the commission of the offense, there was, has been, and is, a valid and subsisting ordinance against the offense charged in the affidavit, but this agreement does not cover the question of the penalty for a violation of the ordinance. The authority of the town in this class of cases is prescribed and limited by sections 6765 and 6784 of Hemingway's Code of 1927. It is not necessary to the validity of an ordinance, that a penalty be prescribed for a violation of it, but even though such a provision might be necessary, there is no proof of the ordinance that the remedy is by civil action for the recovery of money or by imprisonment. Moreover, the agreement does not cover the point. Proof of the provisions of the ordinance prohibiting the possession of intoxicating liquors was necessary, as was proof of the penalty, and the agreement does not cover the legal sanction to be applied for cause of violation of the ordinance. A conviction cannot be sustained where the proof fails to show either of these necessary elements. See 19 R.C.L. 870, et seq. This authority states the rule to be, in some jurisdictions, that a prosecution for a violation of a municipal ordinance is not a criminal proceeding, but a civil action, and it is indicated that the better rule is that the action partakes of both a civil and criminal character, that it is a hybrid one. O'Haver v. Montgomery, 120 Tenn. 448, 127 Am. St. Rep. 1019. If this rule be applied to the case at bar, it will be seen that one of the essential elements of the case of the town has not been proven, and the penalty imposed is a nullity. It will be observed that this penalty is the maximum penalty that can be imposed for violations of municipal ordinances, and we submit that its imposition is not warranted in the absence of proof of the penalty and because it does not exceed the statutory limitation.
Appellant was ordered into the custody of the sheriff of Pontotoc county, rather than into the custody of the town marshal. This is not warranted by the law. See Webb v. City of Vicksburg, 72 So. 852. The case at bar is distinguished from the Webb case, in that the proof in the case at bar wholly fails to show that there was a penalty prescribed by the ordinance or in any event what the penalty was, so that at the very least, this case should be reversed and remanded for a new trial on the whole case, and not with directions that the sentence be imposed anew, as in the Webb case. See, also, 43 C.J., secs. 693, 476; State v. Burris, 23 Ariz. 199, 202 P. 407; Merkee v. Rochester, 13 Hun. (N.Y.) 157.
J.B. Fontaine, for appellee.
Appellant says the agreement as to the validity and introduction of the town ordinance covering such offense does not cover the penalty of its violation. Our contention is, that this ordinance proved and established according to such agreement is not only valid as an ordinance against the offense charged, but is also valid as to the penalty imposed by the court for its violation. That such ordinance does not exceed the limit prescribed by section 6784, Hemingway's Code 1927.
Appellant attempts to show that this is a civil rather than a criminal action. Actions of this character are begun by affidavit and arrest, and are tried according to the rules of evidence and law applicable to the trial of misdemeanors under the state law. Fines, penalties, and imprisonments are imposed in the trial of offense against the state. Fines, penalties and imprisonments are imposed in the trial of offense against the municipalities the same as in the trial of offenses against the state. An appeal from judgment of a mayor or police justice is had to the circuit court, and is there tried de novo as appeals from justice of peace courts are tried. Moreover, we do not see how this can be an argument against the proving of the town ordinance against having intoxicating liquor in possession and the penalty imposed therefor.
We cannot see how it can be reversible error in this case for the court to order appellant into the custody of the sheriff of Pontotoc county, until the fine and sentence imposed are paid and served. This case is not a similar one, by any means, to Webb v. City of Vicksburg, 72 So. 852, and cannot be controlled by it. In that case appellant was ordered by the court to pay a fine of one hundred dollars to the city of Vicksburg, and to serve thirty days in the city works, and in addition the court ordered that the appellant stand committed to the county farm until all costs are paid and then be delivered to the city of Vicksburg to serve fine and imprisonment. Which case clearly implies that appellant was not turned over or placed in custody of the city authorities, but was placed in custody of the sheriff to be delivered to the city authorities.
All that was done by the court in case at bar was to place appellant in the custody of the sheriff until his fine and costs were paid. We do not see how such could be reversible error; moreover this was an order or judgment of the circuit court and the sheriff is made by statute the executive officer of such court. We know of no statute authorizing the circuit court to turn or give over the custody of a prisoner to the town marshal.
Appellant, Bryant Mask, was convicted in the circuit court of Pontotoc county on a charge of unlawfully having in his possession intoxicating liquor, in violation of an ordinance of the town of Pontotoc, and was sentenced to pay a fine of one hundred dollars and all costs and to serve a term of thirty days in the town jail, and was ordered into the custody of the sheriff until the fine and costs were paid and the jail sentence served; and from this conviction and sentence this appeal was prosecuted.
The appellant first contends that the action of the court below in sentencing him to pay a fine of one hundred dollars and to serve a term of thirty days in jail was erroneous, for the reason that no ordinance prescribing a penalty for the offense charged in the affidavit was introduced in evidence.
At the beginning of the trial, an agreement was entered of record that:
"At the time of the alleged commission of the offense and since that time and now there was, has been, and is, a valid and subsisting ordinance against the offense charged in the affidavit, and that same may be considered as introduced in evidence without the production of same in evidence, and considered as fully proved according to law."
Section 3410, Code 1906 (section 6956, Hemingway's 1927 Code), provides that:
"All offenses under the penal laws of the state amounting to a misdemeanor shall, when so provided by a general ordinance of the municipality, also be offenses against the city, town or village in whose corporate limits the offense may have been committed to the same effect as though such offenses were made offenses against the city, town or village by separate ordinance in each case, and upon conviction thereof the same punishment shall be imposed by the city, town or village as is provided by the laws of the state with regard to such offenses against the state not in excess of the maximum penalty which may be imposed by municipal corporation;" — while section 3348, Code 1906 (section 6784, Hemingway's 1927 Code), provides that municipalities may enforce their ordinances by a fine of not exceeding one hundred dollars, or imprisonment not exceeding thirty days, or both. Under this agreement the court below was fully authorized to examine and consider the said ordinance and to impose the penalty prescribed thereby, if it was a special one; or to impose the penalty prescribed by the state law in regard to the offense, not in excess of a fine of one hundred dollars and imprisonment for thirty days, if the ordinance was a general one making all offenses under the penal laws of the state amounting to a misdemeanor offenses against the municipality. With this ordinance in evidence and before the court for consideration, by agreement, the presumption in favor of the correctness of the judgment fixing the penalty will prevail.
The appellant next contends that the testimony is insufficient to support the verdict, and that the court below committed error in failing to instruct the jury to return a verdict of not guilty. There is no merit in this contention. The testimony offered by the town fully supports the verdict; and the conflicting testimony in the record was submitted to the jury under instructions properly announcing the legal principles applicable.
Finally, the appellant contends that the court below erred in ordering him into the custody of the sheriff until the fine and costs were paid, and the sentence of thirty days served. This provision in the judgment is manifestly erroneous. The judgment correctly ordered that the imprisonment imposed should be served in the town jail; and the judgment of the court will be reversed in so far as it ordered the appellant into the custody of the sheriff until the fine and all costs were paid and the sentence served. In all other respects it will be affirmed.
Reversed in part and affirmed in part.