Kansas City v. Henderson

• Decision Date: 14 June 1971
• Docket Number: No. 54997,No. 2,54997,2
• Citation: 468 S.W.2d 48
• Parties: KANSAS CITY, Missouri, Respondent, v. Vincent S. HENDERSON, Appellant
• Court: Missouri Supreme Court

Page 48

468 S.W.2d 48

KANSAS CITY, Missouri, Respondent, v. Vincent S. HENDERSON, Appellant.

No. 54997.

Supreme Court of Missouri, Division No. 2.

June 14, 1971.

Aaron A. Wilson, Jr., City Counselor, Charles A. Lewis, Associate City Counselor, Kansas City, for respondent.

Don B. Roberson, Kansas City, for appellant; Shughart, Thomson & Kilroy, Kansas City, of counsel.

FINCH, Judge.

Defendant was charged in the Municipal Court of Kansas City with stealing. He was convicted and then appealed to the Circuit Court pursuant to Supreme Court Rule 37.84, V. A.M.R. ¹ In a trial de novo in the Circuit Court a jury found him guilty and assessed his punishment at a fine of $100. We have jurisdiction of the appeal because questions of constitutional construction are involved. Art. V, § 3, Constitution of Missouri, 1945, V.A.M.S. We affirm.

Three ultimate questions are presented by defendant's appeal. They are: (1) Does the two-tier system of courts wherein one appealing from a judgment of the municipal court has a trial de novo in the circuit court (rather than an appellate type of review) result in placing defendant in double jeopardy, in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States and Art. I, § 19 of the Constitution of Missouri, 1945? (2) Was the sentence imposed in the trial in the circuit court greater than that imposed at the first trial in the municipal court, and if so, did it violate due process rights of defendant under the doctrine of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656? (3) Was the ordinance (purportedly making stealing a misdemeanor) under which defendant was prosecuted invalid on the basis that the city was not authorized to prohibit and punish misdemeanors?

The charge against defendant was that of stealing a pair of shoes from the Montgomery Ward Store in Kansas City. In municipal court the judge found defendant guilty and sentenced him to 30 days at the Municipal Farm. Defendant appealed to the circuit court, where he filed a pro se motion which he entitled a motion for appeal. In it he said that he had been tried once and could not be tried again, citing the double jeopardy clause of the Fifth Amendment. Through his attorney, he informed the circuit judge that he wanted the circuit court to act as an appellate court and review the questions of law involved in his previous trial, but that he didn't want and was opposed to a second trial. When the court pointed out that he had appealed and that meant there was to be a trial in the circuit court, defendant asserted his position that the law so requiring was unconstitutional. He further stated, however, that if there was to be a second trial, he wanted it to be before a jury. The court then set the case for jury trial and in that trial the jury convicted defendant and fixed his punishment at a fine of $100.

DOUBLE JEOPARDY ISSUE.

Municipal courts in Missouri are not made courts of record by either the Constitution or the statutes. They are courts whose jurisdiction is limited to enforcement of ordinances of that particular city. Missouri, has not provided for an appeal from a municipal court to any other court acting in an appellate capacity. Actually, it could not effectively do so as long as the municipal court is not a court of record because there is no transcript of the testimony for use in appellate review. The only appeal provided in Missouri from a municipal court is that established by Supreme Court Rule 37.84, V.A.M.R., and as noted the relief provided by that appeal is a trial de novo in the circuit court.

Defendant claims that this de novo trial subjects him to double jeopardy and hence the rule providing for such an appeal is unconstitutional.

It is clear since the decision in Benton v. Maryland, 395 U.S.784, 89 S.Ct. 2056, 23 L.Ed.2d 707, that the double jeopardy clause of the Fifth Amendment is now applicable to the states and hence we must consider whether Rule 37.84 violates that provision. Consideration of this question necessitates an analysis of the protection provided by the double jeopardy clause of the Fifth Amendment. As defendant's brief points out, the Supreme Court of the United States in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, said that it consists of three separate protections, 395 U.S. l.c. 717, 89 S.C.t l.c. 2076: 'It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.'

We need not be concerned on this appeal with the first protection ² because defendant in this case was not acquitted on a charge of stealing prior to his de novo trial on the same charge in the circuit court. Defendant makes no contention in his brief that he is entitled to relief under this first category of protection.

We are concerned in this case with guarantee No. 2, namely, the one against a second prosecution for the same offense after a prior conviction thereon. This is the guarantee which was enforced by the Supreme Court of the United States in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435. In that case the defendant was convicted in the municipal court of St. Petersburg for destruction of city property (removing a canvas mural from the City Hall) and disorderly breach of peace. Thereafter, in a new and entirely separate proceeding, the State of Florida sought to prosecute defendant on a charge of grand larceny based on the same acts for which he had been convicted in the St. Petersburg municipal court. The Supreme Court held that the state and municipality were not separate sovereignties; that the city acted pursuant to authority granted to it by the State of Florida and the charge by the city thus constituted prosecution by authority of the state. Consequently, the court concluded, the new prosecution in the name of the state amounted to a second prosecution by the same sovereignty for the same offense after a prior conviction thereon. That violated the double jeopardy clause of the Fifth Amendment.

The instant case is unlike Waller. Here there has been no attempt by the state to institute a second prosecution and impose a second punishment for the same act of The foregoing conclusion is in accord with decisions of various states which have considered the question of whether a de novo trial on appeal from a decision in a municipal, justice of the peace or magistrate court results in subjecting the defendant to double jeopardy. ³ The same view is expressed at 22 C.J.S. Criminal Law § 270, p. 696, as follows: 'However, a conviction in a court of limited jurisdiction, such as a justice of the peace, will not bar a trial on appeal to a higher court whether the trial is on the original affidavit, information, or indictment, or on an amended one; * * *.' Defendant has cited no case holding to the contrary and we have found none.

stealing. Rather, the de novo trial in the circuit court produced by defendant's appeal is a continuation of the original prosecution by Kansas City. The appeal had the effect of setting aside and nullifying the conviction imposed in the municipal court and the conviction and punishment in the circuit court came in the retrial of the same case.

The situation here presented is not unlike one in which a defendant, after conviction in a circuit court, appeals and thereafter secures a reversal and a remand wherein he is retried for the same offense for which he was convicted in the first trial. Such a retrial is a trial de novo but it is not barred by the double jeopardy clause of the Fifth Amendment. This is recognized in North Carolina v. Pearce, supra, 395 U.S. l.c. 719, 89 S.Ct. l.c. 2078, where the court said: 'At least since 1896, when United States v. Ball, 163 U.S. 662, 41 L.Ed. 300, 16 S.Ct. 1192, was decided, it has been settled that this constitutional guarantee imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside. 'The principle that this provision does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence.' United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 12 L.Ed.2d 448, 450.'

Here, defendant, after conviction in the municipal court, took an appeal to the circuit court. Automatically, as a result of the provisions of Supreme Court Rule 37.84, he secured the right to a new trial in the circuit court. The only difference between securing it here and securing it in the usual case following an appeal to an appellate court is that here defendant was not required to establish trial error in order to obtain a new trial. He received it merely by filing his notice of appeal. That does not change the effect of the new trial. In both cases it is a retrial of the same charge and the punishment imposed in the new trial is in lieu of whatever punishment was imposed at the first trial, not in addition thereto. Conviction at the new trial is not a second conviction which violates protection number two guaranteed by the double jeopardy clause of the Fifth Amendment.

Defendant also contends that the third protection against double jeopardy recognized in North Carolina v. Pearce, supra, was violated in that the prosecution of defendant in the circuit court allegedly subjected defendant to multiple punishment for the same offense. We find no merit in this contention. The sentence of 30 days imprisonment imposed by the municipal court was not served and it was set aside as a result of the appeal. It was replaced by the fine of $100 assessed in the circuit court. There were not multiple punishments.

Defendant also cites and relies on Art. I, § 19 of the Missouri Constitution of 1945, the...