The defendant, John Dunlap, was convicted in the First recorder's court of the city of New Orleans of violating Ordinance No. 1436, N.C.S., entitled "An Ordinance relative to vagrants, dangerous and suspicious persons, bunco steerers, confidence men, notorious thieves, and those who harbor or maintain same." Under his conviction defendant was sentenced to pay a fine of $25, or in default of payment of the fine to suffer imprisonment for a period of thirty days.
Defendant appealed from his conviction and sentence on the general allegation that the ordinance under which he is being prosecuted is violative of the state and federal Constitutions.
The city of New Orleans has moved to dismiss the appeal, on the ground that the constitutionality of the ordinance was not questioned nor presented in the court below.
As the record fails to show that there was any contestation in the recorder's court as to the constitutionality of the municipal ordinance in question, the appellate jurisdiction of this court does not attach. State v. Tsni Ho, 37 La. Ann. 50; State v. Romano, 37 La. Ann. 98; State ex rel. Lamarque v. Burthe, 39 La. Ann. 341, 1 So. 656; State v. Clesi, 44 La. Ann. 85, 10 So. 409; State v. Deffes, 44 La. Ann. 581, 10 So. 812; State v. Hennessey, 44 La. Ann. 805, 11 So. 39; City of New Orleans v. Reems, 49 La. Ann. 794, 21 So. 599. See, also, Minden v. McCrary, 108 La. 518, 32 So. 468. *Page 113
For the reasons assigned, appellee's motion is sustained, and the appeal herein is dismissed.