City of Independence v. Stewart, 24278

• Decision Date: 06 December 1965
• Docket Number: No. 24278,24278
• Citation: 397 S.W.2d 765
• Parties: CITY OF INDEPENDENCE, Respondent, v. Clarence STEWART, Appellant.
• Court: Missouri Court of Appeals

Page 765

397 S.W.2d 765

CITY OF INDEPENDENCE, Respondent, v. Clarence STEWART, Appellant.

No. 24278.

Kansas City Court of Appeals, Missouri.

Dec. 6, 1965.

George M. Hare, Keith Wilson, Jr., Independence, for appellant.

S. Ralph Stone, City Counselor, Kenneth H. Taylor, Asst. City Counselor, Independence, for respondent.

MAUGHMER, Commissioner.

The defendant, Clarence Stewart, was convicted for violation of an ordinance of the City of Independence, Missouri. The specific charge was that he 'did willfully, wrongfully and unlawfully interfere with officers McPherson and Nicholson while they were performing their duties by resisting arrest'. After a hearing in municipal court he was found guilty and a fine of $50 was imposed. Upon appeal to the circuit court he was again adjudged guilty. Punishment was there assessed at a fine of $25 and costs. There was no jury. Defendant has appealed to this court.

There is before us a transcript of the circuit court trial. Officers McPherson and Nicholson and the defendant testified. We shall summarize generally the occurrences which finally culminated in this prosecution and then refer particularly to the testimony of each witness. The difficulty began on October 17, 1964. Defendant admittedly had spent a portion of that day drinking in a tavern. He came to his home at 1223 South Delaware Street, Independence, Missouri, in a taxicab and being without funds, requested his wife to pay the fare. She did so. The record does not reveal in detail what happened immediately thereafter. Defendant says he and his wife had an argument. Mrs. Stewart did not testify but she did call the police, reported that her husband was misbehaving, was mistreating her and requested that officers be sent to their home. Patrolmen McPherson and Nicholson responded to the call and went to the residence of defendant and his wife. Mrs. Stewart came to the door and invited them inside. The officers entered the house. There are two versions as to what transpired thereafter--one as told by the officers and the other as recounted by defendant. We shall present both.

The patrolmen said that upon their entry they found defendant lying on a couch, watching television. Mrs. Stewart, in the presence of defendant, told the officers 'her husband had been drinking, came home without his automobile, and that he had made bodily threats against her'. Officer McPherson said defendant 'got up from the couch, came over, placed his hand on my chest and started to shove me', that he was talking very loud and 'cussing both officers', that he asked if we had a warrant and ordered us to leave; that he grabbed 'ahold of my lapel' and started 'shaking me very hard and very violently'. McPherson then pushed defendant across the room and back onto the couch, told him he was under arrest and resumed his interrogation of Mrs. Stewart. A few minutes later he 'heard a scuffle behind my back', turned around and saw defendant 'scuffling' with the other officer.

Patrolman Nicholson corroborated the testimony which we have herein attributed to McPherson and in addition made these statements: 'We proceeded to put him back on the couch and told him to sit there and that he was under arrest for assault on Officer McPherson'. Defendant then got very violent and 'grabbed' Nicholson 'using awful profanity'. Nicholson stated: 'At that time I did apply force to him and told him that he was arrested, the second time, for the interference with me, and I walked him out the front door'. Mr. Stewart was taken to the police station in handcuffs.

In his testimony defendant stated: 'I just got too much to drink, had a taxi take me home, had the wife come out and pay the bill, went back in, and I pulled my shoes off, and laid down on the couch'. He said he went to sleep and the next thing he knew the officer jerked him up off the couch and said 'What's going on here?' Mr. Stewart asked if 'they had a warrant' and asked them to leave, but said he never 'cursed, grabbed them or shook them, or pushed them around'. He said: 'They had me charged with two--had me charged with disturbing the peace. The officer here and the other officer there, they signed a complaint theirself'.

Mrs. Stewart apparently relented from her desire for her husband's arrest and prosecution. At least she never appeared at police headquarters to sign a complaint, nor did she testify for or against him at his trial.

Defendant on appeal says the Court erred 'In finding the defendant guilty of interfering with officers by resisting arrest, due to the fact there was no lawful arrest'. Appellant makes five factual assertions, all undisputed, which he says lead to the legal conclusion that there was no lawful arrest. He says, (2) No complaint was filed by Mrs. Stewart; (2) The officers had no warrant for any arrest; (3) Defendant asked if the officers had a warrant; (4) Defendant requested the officers to leave his home, and (5) Defendant was charged and convicted solely of 'interfering with officers--by resisting arrest'.

Our attention is invited to the recent case of State v. Parker, Mo.App., 378 S.W.2d 274, 281, where the generally accepted rule is again restated that an officer 'has the right to arrest without a warrant for a misdemeanor only when the misdemeanor is committed in his view or presence'. In the Parker case the defendant was charged with and convicted of common assault--a misdemeanor. The Springfield Court of Appeals reversed the conviction and discharged the defendant, holding that where a deputy sheriff--who was the arresting officer and also the prosecuting witness--was about to engage in an affray, not as sheriff, but as a private citizen, the action of defendant in taking him by the arm, not accompanied by force or threat, did not constitute an assault, but rather only mere restraint. The Parker opinion further declares that an arresting officer must give notice 'to the person sought to be arrested so as to reasonably convey to that person the knowledge that arrest is sought and intended'. The Court further expresses the belief that 'in Southern...