City of Kansas City v. Narron

• Decision Date: 18 January 1973
• Docket Number: No. KCD,KCD
• Citation: 493 S.W.2d 394
• Parties: CITY OF KANSAS CITY, Respondent, v. Robert L. NARRON, Appellant. 26148.
• Court: Missouri Court of Appeals

Page 394

493 S.W.2d 394

CITY OF KANSAS CITY, Respondent, v. Robert L. NARRON, Appellant.

No. KCD 26148.

Missouri Court of Appeals, Kansas City District.

Jan. 18, 1973.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 6, 1973.

Application to Transfer Denied May 14, 1973.

Roy W. Brown, Kansas City, for appellant.

Aaron A. Wilson, City Counsellor, Louis W. Benecke, City Pros., Jon M. Krebs, Asst. City Pros., Kansas City, for respondent.

Before DIXON, P.J., and CROSS and SWOFFORD, JJ.

SWOFFORD, Judge.

The appellant, hereinafter referred to as 'defendant', was charged with driving while under the influence of intoxicating liquor under Section 34.113 of the Traffic Code of Kansas City. He was convicted in the Municipal Court and appealed to the Circuit Court where the case was tried de novo without a jury. He was there again convicted and he was fined $100.00 and costs and sentenced to two days at the Municipal Farm, to be served on a weekend. Defendant's motion for a new trial or in the alternative to discharge was overruled and this appeal followed.

In the proceeding in the Circuit Court, officer J. D. McGinness of the Kansas City, Missouri police department testified that on October 29, 1971, at approximately 10:20 o'clock p.m., he was sitting in his police car south of the intersection of Thompson and Oakley when he observed a vehicle eastbound on Thompson approaching a stop sign for eastbound traffic at its intersection with Oakley. The vehicle was going slowly but it did not stop and attempted to make a left turn, struck a light pole at the intersection, backed up and proceeded northbound on Oakley. No other vehicle was involved or in the vicinity, except the police car occupied by McGinness.

McGinness pursued and stopped the vehicle. A man, later identified as the defendant, was driving, and the car was also occupied by a woman and some children.

McGinness testified that the defendant seemed incoherent, did not seem to understand, and was slow in responding to questions. He had the smell of alcohol on his breath but had fair ability to walk. McGinness advised the defendant that he was under arrest for driving while intoxicated and took him to the Van Brunt police station, gave him the Miranda warning and proceeded to make out an alcoholic influence report form.

This report showed that defendant stated he had consumed almost two half pints of whiskey from about 4:00 p.m. to about one-half hour before he was stopped; he estimated the time as 9:30 p.m. (it was then 11:05 p.m.); his breath smelled of alcohol; his eyes were bloodshot, glassy, staring and watery; pupils dilated; balance fair; walking fair; speech was slurred; choice of words fair; sentence continuity fair; clothing mussed and attitude antagonistic. McGinness concluded, and so testified, that the effects of alcohol were extreme and defendant's ability to drive greatly impaired.

McGinness discussed the breathalyzer test with defendant and his options under the implied consent law. McGinness was then asked if he asked defendant to take the test and the nature of defendant's response, and he stated, apparently before counsel had an opportunity to object, that defendant would not take the test. An objection made immediately after the answer, was properly sustained and the evidence as to defendant's refusal to take the breathalyzer test was stricken from the record.

Officer McGinness then issued a citation to the defendant for driving under the influence of intoxicating liquor.

The officer was subjected to a vigorous cross-examination, but his basic testimony of the occurrence remained as above outlined.

The defendant, Narron, testified in his own behalf that at the time of his arrest, he was enroute to his home at 5511 St. John Avenue in Kansas City, Missouri from Concordia, Missouri, where he had picked up his children to bring them home for the weekend. He had left Concordia about 1 1/2 hours before his arrest. This town is about 50 miles from Kansas City, according to the defendant. He admitted drinking 'roughly' two pints of beer that day, but stoutly denied that he was in any way under the influence of liquor.

His version of the occurrence at the intersection of Thompson and Oakley was that as he was getting ready to stop at the traffic sign, he accidentally knocked the fire and ashes from a cigarette off onto his daughter's lap where she was lying asleep beside him; that he reached over to brush them off, lost control of his car, and hit the telephone pole.

The points raised by defendant-appellant here in requesting us to reverse his conviction and order his discharge fall into three areas. First, the defendant claims that the information under which he was tried was fatally defective because it had been amended without leave of court or notice to the defendant and had not been properly signed by the prosecutor. Second, the municipal ordinances under which defendant was found guilty had not been properly introduced into evidence. Third, the judgment and conviction was against the weight of the evidence and that the city had failed to sustain its burden of proof as to defendant's guilt beyond a reasonable doubt.

Preliminary to a consideration of these issues, we note that in the body of defendant's argument in his brief (pages 11 and 15), for the first time he raises the constitutional question of claimed denial of due process in contravention of the Fourteenth Amendment of the Constitution of the United States and Article I, Section 10, of the Constitution of Missouri, V.A.M.S. Such question was not raised in the trial court, nor in the defendant's motion for a new trial or discharge after conviction, nor in his points and authorities in his brief. This question is therefore not properly preserved for review. St. Louis Teachers Association v. Board of Education of City of St. Louis, Mo.Sup., 456 S.W.2d 16, 18, 19; Swafford v. Industrial Commission, Mo.Sup., 452 S.W.2d 801, 802; State ex inf. Voigts v. City of Pleasant Valley, Mo.App., 453 S.W.2d 700, 708; State ex rel. Beeler v. City of Raytown, Mo.App., 453 S.W.2d 672, 674.

Directing attention now to the complaint or information, we recognize and reaffirm the consistently stated rule that a prosecution for violation of a city ordinance is regarded as a civil action with quasi-criminal aspects, so far as matters of sufficiency of the complaint are concerned. Kansas City v. Martin, Mo.App., 369 S.W.2d 602, 608; City of St. Louis v. Stubley, Mo.App., 154 S.W.2d 407, 410. If the complaint sets forth facts which if found to be true would amount to the offense prohibited by the ordinance and is couched in terms that will inform the defendant of the nature of the charges against him in order that he may defend and so that a trial of the issue thus raised would bar another prosecution for the same offense, it is sufficient. Such facts need not be stated with the same strictness or particularity as required of a criminal indictment. Kansas City v. Stricklin, Mo.Sup. en banc, 428 S.W.2d 721. However, the defendant must not be required to guess or speculate as to the violations with which he is charged by the public authorities nor the nature of the evidence admissible under them. City of St. Louis v. Polar Wave Ice & Fuel Co., 317 Mo. 907, 296 S.W. 993, 994; Kansas City v. Martin, supra; St. Louis v. Stubley, supra; City of Raytown v. Roach, Mo.App., 360 S.W.2d 741; Rule 37.18 V.A.M.R.

Under the procedures adopted by the police department of Kansas City, Missouri, where a traffic violation is involved, the arresting officer issues a multiple copy 'Missouri Uniform Traffic Ticket' which is substantially the same but not identical to the form suggested by the Supreme Court in Rule 37.1162 V.A.M.R.

The use of substantially this form is required by Rule 37.46 V.A.M.R. One copy of such document designated 'Summons, Copy of Information No. _ _' is handed to the alleged violator. The original of this ticket is sent to the Municipal Clerk for examination by the city prosecutor. Under Rules 37.08 and 37.18 V.A.M.R., if the prosecutor is satisfied as to the existence of reasonable grounds for the charge, he signs the same and files it with the judge or court. The court has jurisdiction of the cause when, and only when, such information is signed by the prosecutor and filed with the court. Kansas City v. Asby, Mo.App., 377 S.W.2d 511; City of Elvins v. De Priest, Mo.App., 398 S.W.2d 22.

It would seem to be implicit in the authority of the prosecutor in making this examination and evaluation of the complaint as originally prepared by the arresting officer to make minor changes, clarifications or amendments to more clearly and legally set forth the charge. At his option under Rule 37.08 V.A.M.R., he may file a separate information accompanied by the complaint. He cannot, however, make such changes as will charge a new or different offense or materially change the essential statements of fact to the prejudice of any substantial rights of the defendant.

The municipal court in traffic cases may permit amendments under Rule 37.19 V.A.M.R., and under Rule 37.57 V.A.M.R., either the municipal court or the circuit court on trial de novo may permit amendments by leave of court or 'on his own motion, make such amendments to the process, information or the complaint by correcting the original process, information or complaint by adding, striking out or changing certain words therein or by requesting the municipality to submit an amended process, information or complaint.'

The City and the defendant in the matter before us stipulated in the circuit court that no request was made nor leave granted to amend the information (T. 3 1/2) and the circuit judge stated that any amendment was made before the matter was lodged in his court (T. 27). Since some amendment was obviously made, the only conclusion to be drawn is that such amendments were either made by the prosecutor before the...