City of Clinton v. Kammerich

• Decision Date: 26 October 1982
• Docket Number: No. WD,WD
• Citation: 642 S.W.2d 353
• Parties: CITY OF CLINTON, Missouri, Respondent, v. Billy Lee KAMMERICH, Appellant. 33264.
• Court: Missouri Court of Appeals

Page 353

642 S.W.2d 353

CITY OF CLINTON, Missouri, Respondent, v. Billy Lee KAMMERICH, Appellant.

No. WD 33264.

Missouri Court of Appeals Western District.

Oct. 26, 1982.

Dan K. Purdy, Osceola, for appellant.

John A. Sanders and Gary V. Cover, Clinton, for respondent.

Before MANFORD, P.J., and WASSERSTROM and KENNEDY, JJ.

MANFORD, Presiding Judge.

This is a direct appeal from a judgment of conviction for violation of municipal ordinances related to driving while intoxicated and common assault. The judgment is affirmed in part and reversed in part.

Three points are presented, which in summary charge the trial court erred in entering its judgment because (1) the information charging common assault was insufficient; (2) the evidence is insufficient to support a finding of common assault; and (3) the evidence was insufficient to support a finding that appellant was driving while intoxicated. It will be observed infra that point (2) is not reached by this court because of the disposition made relative to point (1).

This cause was tried to the court without a jury. The record reveals that appellant and three others went to a local pizza establishment in Clinton, Missouri at about 8:00 p.m. the evening of April 25, 1981. In addition to eating, the four persons consumed three or four pitchers of beer. Appellant admitted to drinking "a pitcher or a pitcher and a quarter ... you know [a] pitcher and a half." The four then left the restaurant to pick up another person so that the latter could go for a ride in appellant's pickup. The evidence reveals that appellant operated his pickup at a high rate of speed prior to his encounter with local police. At about 8:55 p.m., appellant's pickup was observed by the arresting officer. This officer testified that he observed appellant operating the pickup on a local street. He observed appellant turn the pickup east from one street onto another, accelerate very heavily, causing the tires to spin and the rear of the pickup to slide sideways. The officer then turned on his emergency lights and pursued the pickup to a mobile home park a short distance from where he first observed the pickup. That appellant was operating the pickup is not disputed. The officer requested appellant to display his operator's license, which appellant did. The officer then asked appellant to participate in two field sobriety tests. The officer testified that when he first encountered appellant, there was a strong odor of alcohol upon appellant. The officer stated he asked appellant to count backward from 100 and to walk heel to toe. The officer testified that appellant could not perform either test. Appellant's explanation was that he thought the officer asked him to count backward from 175 and as to the heel-to-toe test, he could not perform that because he was wearing high heeled boots and the area was covered by "large-size" gravel.

The officer placed appellant under arrest for driving while intoxicated and transported him to the local police station. At the station, a breathalyzer test was given to appellant. The record contains extensive testimony (both by direct and cross-examination) relative to the qualifications of the officer and the procedures followed in administering the breathalyzer test. The evidence reveals that the blood alcohol content of appellant was .18.

Following the breathalyzer test, an altercation ensued between appellant and the arresting officer. The evidence was controverted as to how and why and under what circumstances this altercation occurred. Further consideration of the facts relative to that issue is unnecessary because of the disposition of points (1) and (2) herein. However, it should not be construed that this court has reached or decided the question of the sufficiency of the evidence concerning the charge of assault.

The evidence closed and judgment was entered which found appellant guilty of driving while intoxicated and common assault. This appeal followed.

Under point (1), appellant charges that the information relative to the charge for common assault was insufficient because the information failed to set forth essential facts to constitute the offense charged. Appellant cites to this court Rule 37.18.

Review of the information charging common assault reveals it is fatally defective on its face. The information does not even attempt to comply with the rule as it contains no facts, let alone essential facts, which are alleged to have constituted the offense of common assault. The information merely charges appellant (by name):

"[C]ontrary to and in violation of section 250.030 or Ordinance No. ________, of the City of Clinton, Missouri, ________, did then and there wrongfully, unlawfully, and willfully

Common Assault Refer to 81-017CP

against the peace and dignity of the City."

The copy of the information provided this court contains the name of the complaining officer in typewritten form, but does not even contain his signature upon the affidavit which is part of the information.

Respondent attempts to convince this court that appellant waived his challenge to the sufficiency of the information. Respondent argues that informations charging violations of city ordinances are not held to the same rule of strictness as are charges presented in criminal cases. Respondent's argument is correct, but it is also the law in our state that an information filed alleging a violation of an ordinance must contain a concise statement of essential facts. Kansas City v. Mathis, 409 S.W.2d 280, 289 (Mo.App.1966), citing City of Raytown v. Roach, 360 S.W.2d 741 (Mo.App.1962) and Kansas City v. Franklin, 401 S.W.2d 949 (Mo.App.1966) and Rule 37.18. The questioned information contains no facts, let alone essential facts, and is patently defective. Respondent further contends that appellant waived his challenge to the information because prior to trial, he waived presentation, reading and arraignment under the information. A waiver of the sufficiency of the information filed pursuant to an alleged violation of a municipal ordinance can occur. Kansas City v. LaRose, 524 S.W.2d 112 (Mo. banc 1975). In LaRose at 116, our state Supreme Court ruled:

"We rule that the information was sufficient. Rule 37.18, V.A.M.R., provides that an information in municipal courts shall be a definite written statement of the essential facts constituting the offense charged. This court has held that in this type of case the same strictness is not required as in a criminal prosecution and that a complaint is...