
    City of Emporia v. F. W. Volmer.
    
    January Term, 1874.
    1. Venue: Change of: Prejudice of Judge. In criminal cases, on an application for a change of venue on account of the prejudice of the judge, such facts and circumstances must be shown by affidavits or other evidence as clearly establish such prejudice; and unless it be by such testimony clearly established, a reviewing court will sustain an overruling of the application, on the ground that the judge must have been personally conscious of the falsity or non-existence of the grounds alleged.
    
    2. Parties: Violation of City Ordinance. A prosecution in a municipal court for a violation of a city ordinance may, if authorized by statute, be in the name of the city. [Neitzell v. Concordia, 14 Kan. 448.]
    3. Complaint: City Ordinance. A complaint for a violation of a city ordinance, filed in the municipal court, need not recite in full the ordinance alleged to have been violated.
    4. Tippling-Shops: Licensing and Restraining. Authority in the charter “to restrain, prohibit, and suppress tippling-shops,” will sustain an ordinance licensing such shops, and prescribing penalties for keeping one without a license.
    
    5. Trial: Police Court: Without a Jury. Where a statute authorizes a trial before a municipal court, without a jury, for a violation of a city ordinance, and at the same time secures to the defendant an appeal therefrom, clogged by no unreasonable restrictions, to an appellate court in which he has a right to a trial by a jury, such summary proceeding is not in conflict with the constitutional provision that the “right of trial by jury shall be inviolate.” [In re Rolps, 30 Kan. 761; S. C. 1 Pac. Rep. 523.]
    6. Criminal Law: Offense: Time not Material: Instructions: Error without Prejudice. Under a complaint charging an offense upon one day, a defendant may ordinarily be convicted of committing the offense upon some other day, and the time alleged is not material. Hence, in questioning jurors as to whether they had formed any opinion as to the defendant’s guilt, the question should not be limited to the day charged. But when it has been so limited, if thereafter the investigation be limited to that precise day; and the jury are instructed that unless they find that the defendant committed the offense upon that day they must acquit, the substantial rights of the defendant are not prejudiced.
    
      7. Definition: “Tippling-Shop” and Disorderly House. The terms “tippling-shop” and “disorderly house” have, in law, well-settled and well-deflned meanings, and those meanings are not identical, nor is either necessarily included in the other.
    Appeal from Lyon district court.
    On the twenty-fifth of June, 1873, a complaint was made before the police court of, the city of Emporia, *as follows: “State of Kansas, County of Lyon, City of Emporia. Before M. Weaver, Police Judge,” etc. “The city of Emporia, plaintiff, against F. W. Yolmer, defendant. County of Lyon, ss.: Wm. H. Gilchrist, being first duly sworn, complains of F. W. Yolmer, and says that on the twenty-fourth day of June, 1873, at the city of Emporia, in the county of Lyon, and state of Kansas, within the corporate limits of said city, (the same'being a city of the second class, duly incorporated under the statutes of Kansas relating to the organization and'incorporation of cities of the second class,) the said F. W. Yolmer, without then and there having a license therefor, did keep a tippling-shop in a two-story stone building, situate on lot number 156 Commercial street, within the corporate limits of said city, in violation of, and against the provisions of, section 12 of an ordinance of said city of Emporia entitled ‘An ordinance to amend an ordinance in relation to licenses, approved June 21, 1871,’ (which said ordinance was approved May 22, 1873, and published in the Emporia Ledger, May 29, 1873,) and which said section 12 of said ordinance is as follows, to-wit, [setting forth the section, which is copied in full in the opinion, infra.] ”
    On filing this complaint the police judge issued his warrant, and Yolmer was arrested and brought before the court for trial. Yolmer moved to quash the warrant, which motion was overruled. Voimer then demurred for the reason “that said complaint does not state facts sufficient to constitute a cause of action, ” and the demurrer was overruled. Yolmer then demanded a jury trial, which was refused. To each ruling and decision of the court Voimer excepted. He was tried, and found guilty, and sentenced to pay a fine, and from this judgment he appealed to the district court, where the ease was tried at the July term, 1873. The verdict of the jury was as follows: “We, the jury in the above-entitled cause, do find the defendant guilty as charged.” *New trial refused. Judgment on the verdict, as follows: “And thereupon it is adjudged by the court that said defendant, F. W. Yolmer, pay a fine of one hundred dollars, and the costs of this prosecution herein, and that he (said defendant) stand committed until said fine and costs be paid. And it is further ordered that process issue to the sheriff of Lyon county, commanding him to close up the premises described in the complaint herein, to-wit, a two-story stone building situated on lot number 156, Commercial street, within the corporate limits of the city of Emporia, Lyon county, and prevent the same from being used as a tippling-shop.”.
    
      
      John V. Sanders, for appellant.
    
      R. M. Ruggles, for appellee.
    
      
       Referred to, Emporia v. Volmer, post, *633.
    
    
      
       Neither unfavorable comments as to the innocence of a defendant in a criminal case, after a verdict of guilty by a jury, made by a trial judge upon the evidence introduced in the case, when passing sentence upon such defendant, nor adverse rulings, nor errors of judgment, of themselves, amount to prejudice on the part of a judge, so as to compel a removal of the case (upon anew trial granted by the supreme court) to the district court of some county in a different judicial district. State v. Bohan, 19 Kan. 28. Prejudice of inhabitants of county, — it must affirmatively appear that there is such a feeling and prejudice pervading the community as will be reasonably certain to prevent a fair and impartial trial. State v. Furbeck, 29 Kan. 532.
    
    
      
       Cities of the third class, in 1877, had the power to license persons to sell intoxicating liquor within their limits, subject to a compliance with the dram-shop act of 1868, State v. Young, 17 Kan. 414; wholesale dealers’ license, Williams v. Louis, 14 Kan. 605; sales by druggists, Salina v. Seitz, 16 Kan. 143.
    
   Brewer, J.

Yolmer was convicted in the district court of Lyon county of keeping a tippling-shop in the city of Emporia without any license therefor as required by one of the ordinances of said city. The prosecution was commenced in the police court of the city, and taken on appeal to the district court. Several questions are presented by counsel for the respective parties, and discussed in their briefs at length, and with ability. Of them in their order.

Yolmer filed his affidavit in the district court for a change of venue-on account of the prejudice of the judge, setting out that the judge some two years before had, in his presence, speaking of and to him, remarked that he was meaner than a horse-thief, a murderer, or a rebel; that he had no shame; if he had he (the judge) would make his face burn; and that there had since that time been no reconciliation between them. Whereupon the judge filed a counter-affidavit, stating, in substance, that he did not recollect the remarks; thought he did not make them; but if *he did, it was while a partner of the city attorney, and engaged in the trial of a prosecution against said Yolmer for violating a city ordinance; that he had no prejudice against defendant; that they had been in the habit of' meeting and speaking together in a friendly manner, and until the reading of defendant’s affidavit he was unaware that any other than friendly relations existed between them. Upon this the defendant-asked time to file counter-affidavits, but the court refused to grant any, and overruled the application for a change of venue. Was there '‘error in this ruling ? It must be confessed that it is somewhat novel for a judge to file his own affidavit to be used on a motion before himself, but the novelty or irregularity, if irregularity it be, of such proceeding, does not warrant us in a reversal, if outside and independent of it the .substantial rights of the defendant have not been prejudiced. Sections 172 to 178, inclusive, of the Code of Criminal Procedure, provide for changes of venue in criminal eases. Section 172 applies where the indictment is against the judge himself. There the removal is by an order in writing of any judge of the supreme court. Section 173 is the one under which this application is made. It is as follows:

“Sec. 173. When any indictment or criminal prosecution shall be pending in any district court, the same shall be removed by the order of such court, or judge thereof, to the district court of some county in a different district, in either of the following cases: First, when the judge of the court in which the cause is pending is near of kin to the defendant, by blood or marriage; second, when the offense charged is alleged to have been committed against the person or property of such judge, or some person near of kin to him; third, when the judge is anywise interested or prejudiced, or shall have been of counsel in the cause.”

Sections 174 to 177, inclusive, apply to cases where*the application is based upon the prejudice of the inhabitants. Section 178 provides that “whenever it shall be within the knowledge of a court or judge that facts exist which would entitle a defendant to the removal of any criminal cause on his application, such judge or court may make an order for *such removal, without any application by the party for that purpose.” Those sections referring to a change of venue on account of the prejudice of the inhabitants, recite that “whenever it shall appear, in the manner hereinafter provided,” etc., and that manner is thereafter provided to be by petition disclosing the facts, and verified by affidavit. Now, it is claimed that inasmuch as the statute nowhere specifically provides the manner in which the causes of removal named in section 173 shall be shown, and as these facts are peculiarly within the personal knowledge of the judge, he is to decide any application upon such personal knowledge, and his decision is not subject to review in this court, unless, perhaps, when shown to have been corruptly made. Who can know so well as he (it is asked) whether he is interested in the event of a prosecution, whether the defendant is near of kin, or whether his feelings are friendly or otherwise towards the defendant. We cannot yield our assent to the doctrine, as thus broadly stated. It ignores that which all experience testifies to be true: that he who is prejudiced towards another is seldom conscious of that prejudice, or at least willing to admit it. The judge may not always be personally aware of the relationship, while the fact may be abundantly proved by evidence. It rests a judicial decision upon extrajudicial knowledge. “Had the legislature intended to authorize so strange an anomaly as the decision of judicial questions upon the extrajudicial knowledge of the judge, it is believed such authority would not have been left to doubtful inference, but expressed in clear and unequivocal terms.” Cobb, C. J., in Smith v. State, 1 Kan. *392.

On the other hand, it would seem that the personal knowledge of the judge cannot be altogether ignored. At common law there was no such tilingas a change of venue on account of the prejudice of the judge. The statute is silent as to the manner of establishing the fact. It declares simply that the change shall be made when the fact exists. The fact must exist. The court must find the fact to exist. If the judge’s personal knowledge is altogether ignored, it will often place him in a position of being compelled to find that to be a fact *which he knows not to be a fact, — a fact, too, which carries with it something of an imputation upon himself. If it were to be determined by simpty the affidavit of the defendant, there would be almost numberless changes of venue. Every defendant closely pressed would seek delay in this manner. A change of venue is a wrong to the public, unless the necessities of justice to the defendant require it. It works delay. It causes expense. It endangers a prosecution. A defendant is easily persuaded of the prejudice of the judge. Adverse rulings convince him of the fact, as shown by the ease of Burke v. Mayall, 10 Minn. 287, (Gil. 226.) It seems to us, therefore, that this is the true rule: that such facts and circumstances must be proved by affidavits, or other extrinsic testimony, as dearly show that there exists a prejudice on the part of the judge towards the defendant, and unless this prejudice thus clearly appears, a reviewing court will sustain an overruling of the application on the ground that the judge must have been personally conscious of the falsity or non-existence of the grounds alleged. It is not sufficient that a prima facie case only be shown, — such a ease as would require the sustaining of a challenge to a juror. It must be strong enough to overthrow the presumption in favor of the trial judge’s integrity, and of the clearness of his perceptions. See, as going beyond the views herein expressed, the cases of Hungerford v. Cushing, 2 Wis. 397; Table Mountain M. Co. v. Wallers D. M. Co., 4 Nev. 218. And as sustaining these views, State v. Gordon, 3 Iowa, 412; State v. Ingalls, 17 Iowa, 10; Boswell v. Flockheart, 8 Leigh, 364; People v. Williams, 24 Cal. 31.

Under these circumstances there can be no impropriety in the judge placing upon record a statement of such facts as may explain the reasons of his ruling, or account for the statements and charges made in the application. It may be remarked, also, that the character of the case on trial affects the question to some extent. Where the penalty may be death, or a long term of imprisonment, the trial judge should listen with more care to the testimony presented to show his bias or prejudice, and a reviewing court *will more closely scrutinize the record, and give less weight to the presumption in favor of the correctness of the ruling, than where the penalty can only be a fine, or a short imprisonment in the county jail. Applying these considerations to the case before us, and it does not seem that there is such a clear showing by the defendant of prejudice on the part of the judge as would justify us in reversing his ruling refusing a change of venue. The utmost penalty was a fine of $100. The language imputed to the judge was uttered two years before the trial. The circumstances under which it was uttered are not disclosed. It is the language of excited passion, and not of deliberate judgment. It might have been the outburst of momentary indignation at some act of cruelty or meanness, — an outburst which was but the expression of the common judgment of the community. As the defendant fails to show under what circumstances it was uttered, all the presumptions'would be against him, and not that such expressions were the cropping out of an abiding prejudice against him. The case of State v. Ingalls, 17 Iowa, 10, is in many respects very similar to this, and the judgment there sustains our conclusions-here? And when the explanations tendered by the judge in his affidavit are considered, it is evident there was no such prejudice as would prevent his securing to the defendant a fair and impartial trial.

The second objection is that the prosecution was in the name of “The City of Emporia,” and not in the name of “The State of Kansas.” This is not well taken. The act incorporating cities of the second class, to which class Emporia belonged, provides specifically that “all prosecutions for violating any city ordinance shall be entitled ‘The city of -against -” Laws 1872, p. 216, § 80. And where the mode of procedure is prescribed by a charter, that mode must be pursued. Dill. Mun. Corp. § 343. Section IT of article 3 of the constitution, which provides that all prosecutions shall be in the name of the state, does not apply to the proseeu*tions instituted by a municipality in its own courts for a violation of one of its ordinances. Williamson v. Com. 4 B. Mon. 146; City of Davenport v. Bird, 34 Iowa, 524; Dill. Mun. Corp. § 358, and note.

A third objection is that the complaint or affidavit is bad upon its face, because it only purports to set out a part of the ordinance alleged to have been violated. On the contrary, we think the complaint amply sufficient. It refers to the ordinance by its title, the time of its approval, and the date and paper of its publication, and then recites in full the specific section which the defendant is alleged to have violated. No authority that we have been able to find requires anything more than this. Dill. Mun. Corp. § 346, and notes; Keeler v. Milledge, 24 N. J. Law, 142; Kip v. City of Patterson, 26 N. J. Law, 298.

A fourth objection is that the section of the ordinance under which this prosecution was ‘had is void, because not within the-powers granted to the city. That section is as follows:

“Sec. 12. No tippling-shop shall be kept within the corporate limits of the city of Emporia without a license having been previously obtained therefor as herein provided, and any person offending against the provisions of this section shall be liable to prosecution therefor upon written complaint before the police judge of said city, and, upon conviction, shall be fined in any sum not less than twenty-five dollars» or more than one hundred dollars, and costs, and shall be committed until such fine and costs shall be paid, unless an appeal be taken to the district court; and the record of conviction shall describe the premises,” etc.

The authority for this ordinance is claimed under section 49 of the act of incorporation, which is as follows:

“Sec. 49. The city council shall have power to enact ordinances to restrain, prohibit, and suppress tippling-shops, billiard tables, bowling-alleys, houses of prostitution, and other disorderly houses and practices, games and gambling-houses, desecration of the Sabbath day, commonly called Sunday, and all kinds of public indecencies. No license shall ever be granted for any house of prostitution, or for any gambling-*house, gambling device, game of chance, or any disorderly house or practice. * * *”

We think this gives ample authority. The word “restrain” is not synonymous with “prohibit” or “suppress.” It does not contemplate an absolute destruction of the business, but rather a placing it within bounds. From the last clause, which prohibits alicenseto houses of prostitution, etc., it seems evident that the legislature contemplated that the first granted the power to license. This same question has been presented to the courts of other states, and with like ruling. City of St. Louis v. Smith, 2 Mo. 113; Trustees of Clintonville v. Keeting, 4 Denio, 341; Town of Mt. Carmel v. Wabash Co., 50 Ill. 69. In the opinion in this last ease the court, on page 73, uses this language: “The power is to tax, restrain, and suppress the sale of liquors, and under the power to tax we think it was intended to confer the power to license tippling-houses; but if this zcere not so, the power to restrain manifestly authorizes the city to grant such license. To restrain, the city zcould be compelled to adopt ordinances for the purpose, azid by that means bring drinking-houses under the necessity of procuring licenses, and paying therefor such sums as might be required. Such a requirement would be a restraint, reasonable and in accordance with the restraints imposed then and now on the traffic, and such restraint was doubtless in the contemplation of the general assembly when this charter was granted. It is no doubt true that the city was empowered to resort to other means of restraint, — such as requiring such houses to be orderly, — and in other respects to conform to such ordinances as might be adopted to properly restrain the business; but the fact that they had other powers conferred for the purpose, in nowise prevented the city from exercising the power to restrain the general free sale of liquors by requiring that a license should be obtained before it could be sold.”

A fifth error alleged is that a jury trial was refused the defendant in the police court. In the district court a motion was made and overruled to dismiss the case because defendant had been refused a jury trial in the police court. Was he entitled to a jury trial ? The *statute plainly authorizes such summary proceeding in the police court, (Laws 1872,p. 217, § 83;) and the onlyquestion that can be raised is whether such section conflicts with the provision in section 5 of the bill of rights, which declares that “the right of trial by jury shall be inviolate.” Without attempting to decide as to the extent or limits of this constitutional provision, it is enough for us in this case to decide that, where the summary proceeding authorized by statute is in a municipal court, for the violation of one of the eity ordinances, and the defendant may have an appeal, clogged by no unreasonable restrictions, to an appellate court in which he has a right to a trial by jury, this is sufficient, and his constitutional rights are not invaded. Dill. Mun. Corp. § 367, and cases cited in note; Byers v. Com., 42 Pa. St. 89; McGear v. Woodruff, 33 N. J. Law, 213; State v. Young, 3 Kan. *445.

A sixth objection is as to the ruling of the court on challenges to the jurors. In examining the jury for cause the court only permitted the jurors to answer as to their opinion of the guilt or innocence of the defendant on “the twenty-fourth of June, 1873.” The defendant desired them to answer as to that day, or any previous time between that time and the twenty-ninth of May, 1873, which was after the ordinance purported to go into force, which the court refused to permit them to do, to which the defendant excepted; and after the defendant exhausted all his peremptory challenges some jurors remained and tried the case who were not permitted to, and therefore did not, answer as to their opinion, except as to “the twenty-fourth of June, 1873.” If this ruling stood by itself, we should be compelled to hold it error. Time is not of the essence of this offense, and, under such a charge, the defendant could have been convicted of the offense if committed on the twentieth of June, or upon any day intermediate the commencement of the prosecution and the twenty-ninth of May, 1873, when the ordinance went into effect. But upon the trial the court limited the investigation to the day charged in the complaint, to-wit, “June 24, 1873,” and instructed the *jury that they must be satisfied, beyond a reasonable doubt, that defendant was guilty of a violation of the ordinance upon that day, or else they must acquit him. Did not the last ruling obviate any error in the first? We are inclined to think that it did. The question is not free from doubt and difficulty, but, the whole case having been limited to a single day, we are disposed to hold that the substantial rights to the defendant have not been prejudiced by the like limitation in the •examination of the jurors.

The seventh question presented is on the instructions. After the •court had instructed the jury generally the defendant asked the following special instructions: “(1) If you believe that the defendant, Volmer, sold four or five drinks of intoxicating liquors, and permitted the same to be drank on his premises, and.said premises were the house in question, this, of itself, without any other attendant circumstances, would not be sufficient evidence of his keeping a tippling-shop. (2) A tippling-shop is a place kept for the general resort of persons to drink intoxicating liquors, and idle away tlieir time, and nothing short of this would be a tippling-shop.” Each of these instructions the court refused, to each of which the defendant excepted. In its general instructions the court had defined a “ ‘ tippling-house ’ to be a place of public resort, where spirituous, fermented, or other intoxicating liquors are sold and drank in small quantities, without having a license therefor.” Bouvier’s Law Dictionary reads thus: “ ‘ Tippling-House.’ A place where spirituous liquors are sold and drank in violation of law. Sometimes the mere selling is considered as evidence of keeping a ‘ tippling-house.’ ” To like effect are the definitions in Webster’s and Worcester’s dictionaries. See, also, Morrison v. Com., 7 Dana, 218. We see no error in the ruling of the court in refusing these instructions. The idea of counsel for the defendant that a tippling-shop is technically “a disorderly house, — a nuisance, - — and that therefore some facts must be shown from which disorderly conduct could at least be inferred,” does not seem to *us correct. Both terms, “tippling-shop” and “disorderly house,” have in the law well-settled and well-defined «meanings, and those meanings are not identical, nor is either necessarily included in the •other.

The objection that the verdict is not sustained by the evidence does not seem to us to demand any extended remarks. We think the testimony was ample.

Upon the whole case we are constrained to say that the defendant seems to have had a fair trial, and been properly convicted. The judgment of the district court will be affirmed.

(All the justices concurring.)  