City of Kansas City v. Harbin, KCD

• Decision Date: 05 May 1980
• Docket Number: No. KCD,KCD
• Parties: CITY OF KANSAS CITY, Mo., Plaintiff-Respondent, v. Albert HARBIN, Defendant-Appellant. 30567.
• Court: Missouri Court of Appeals

Page 589

600 S.W.2d 589

CITY OF KANSAS CITY, Mo., Plaintiff-Respondent, v. Albert HARBIN, Defendant-Appellant.

No. KCD 30567.

Missouri Court of Appeals, Western District.

May 5, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 9, 1980.

L. Patrick O'Brien, Legal Aid of Western Missouri, Kansas City, for defendant-appellant.

Aaron A. Wilson, City Atty., Jack H. Schrimsher, City Prosecutor, Dan R. Sharp, Asst. City Prosecutor, Kansas City, for plaintiff-respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

DIXON, Judge.

Defendant Harbin appealed his conviction of hindering and interfering with Kansas City, Missouri police officers in violation of § 26.35(a) of the Revised Ordinances of Kansas City, Missouri, and sentence of 180 days. On appeal from Municipal Court, the case was heard by a jury which imposed a 60-day sentence in the Municipal Correctional Institution. One issue is dispositive of the appeal: The validity of the information filed in Municipal Court.

Defendant was arrested on June 12, 1978 and charged with violating § 26.35(a), Revised Ordinances of Kansas City, Missouri. The ordinance reads:

Sec. 26.35. Obstructing and resisting city officer.

(a) Any person who shall in any way or manner hinder, obstruct, molest, resist or otherwise interfere with any city officer or inspector or any member of the police force in the discharge of his official duties shall be guilty of a misdemeanor.

Prior to trial in the Municipal Court of Kansas City, the city prosecutor amended the information written by the arresting officers. The city's amended information alleged that:

"IN THE MUNICIPAL COURT OF KANSAS CITY, MISSOURI STATE OF MISSOURI, COUNTY OF JACKSON-CLAY-PLATTE THE UNDERSIGNED COMPLAINS AND STATES THAT: On or about 6-12-78 in Kansas City, Missouri, At or Near 1842 E. 77th, At About (Time) 1618, Albert Harbin DID UNLAWFULLY WITHIN THE AFORESAID CITY, COUNTY AND STATE COMMIT THE FOLLOWING OFFENSE: Did hinder and interfere with a police officer by striking P. O. Richardson in the face and struck P. O. R. Saunders who sustained minor injury and was transported to the hospital In Violation of the Revised Ordinances of Kansas City, Missouri, 1966 As Amended, Chapter 26, Section 35 A."

The plaintiff City filed a Motion to Amend the Information eight days prior to the circuit court trial. The motion proposed the following:

"On or about June 12, 1978, at or near 1842 E. 77th St., Kansas City, Missouri Albert Harbin did hinder and interfer (sic) with Kansas City, Missouri police officers in the discharge of their official duties by striking officers Robert N. Saunders and Douglas F. Richardson." (emphasis added).

The Motion was sustained over defendant's objection. Defendant argues that this ruling was reversible error. Defendant contends that the information under which defendant was convicted in the Municipal Court was fatally defective because it failed to allege the essential fact that the officers in question were in the discharge of their official duties as Ordinance 26.35(a) requires. Defendant further argues that the circuit court had only derivative jurisdiction pursuant to Rule 37.38 and should have dismissed the case because the information was fatally defective in the municipal court and the purported amendment could not confer jurisdiction on the circuit court.

The recent case of City of Mexico, Missouri v. Merline, 596 S.W.2d 475 (Mo.App.1980), supports the proposition that the circuit court had only derivative jurisdiction and that no amendment of a defective information could confer jurisdiction. City of Mexico, Missouri, involved a situation where the defendant had been found guilty by the Municipal Court of "driving while intoxicated." He perfected an appeal to the Circuit Court but immediately prior to trial the City Attorney filed an Amended Information in which defendant was charged with driving "a motor vehicle within the city limits of the City of Mexico, Missouri, . . . when he had ten-hundredths of one percent or more by weight of alcohol in his blood," pursuant to § 26.14(b) of the local City Code. Defendant moved for a dismissal of the charge as set forth in the Amended Information claiming the circuit court's jurisdiction was derivative only. The motion was denied.

The Missouri Court of Appeals, Eastern District, reversed the circuit court and held that while Rule 37.84 provides for the circuit court to hear, try and determine such cases de novo, it prescribed a procedure to be followed.

"(I)t does not invest the circuit court with jurisdiction to hear, try and determine a charge that the defendant violated a municipal ordinance other than, or not included in, the charge upon which the municipal court judgment was entered and from which an appeal has been taken. In other words, in an appeal to the circuit court from a judgment of a municipal court, the jurisdiction of the circuit court is derivative only.

After an appeal has been taken to the circuit court from the judgment of a municipal court, a new or different charge cannot be filed by way of an amendment to the original information, City of Macon v. Rennick, 226 Mo.App. 592, 44 S.W.2d 249 (Mo.App.1931), but the information may be amended to clarify the charge, Kansas City v. Spurlock, 533 S.W.2d 660 (Mo.App.1976), or to charge a lesser included offense."

If the amendment attempted in the instant case is characterized as a "new or different charge" as opposed to a "clarification," the circuit court was without jurisdiction to try defendant for the offense charged in the Amended Information.

Defendant argues that Chapter 26, Section 35(a) of the Revised Ordinances of Kansas City clearly provides that the officer must be "in the discharge of his official duties." If an officer is not in discharge of his official duties, defendant argues, he cannot be protected by the ordinance. For this reason, defendant argues that being in the discharge of official duties is an essential element of the charge which must be pleaded. Defendant also claims that the City has twice conceded this point:

1) Mr. Dan Sharp, representing the City, stated to the trial judge in discussing whether this was an essential element:

"I believe it would be essential but I think it's part of 'hindering and interfering.' "

2) Mr. James Lindquist argued for the City at the New Trial Motion under the belief that the Information had been amended:

"The allegation about an essential element was omitted in the Information, I think the City would concede."

The City now contends that, by adding the phrase "in discharge of their official duties," there was merely a clarification of the charge that defendant Harbin did "hinder and interfere with a police officer."

The real question is whether or not defendant was even charged with an offense. The ordinance appears to be strictly for the unique purpose of protecting officials acting within the scope of their duties. The information may not even state a cause of action for assault on a police officer, thereby hindering or interfering with him. The initials, "P. O." and "P. O. R.," preceding the surnames in the information provide no factual content. City of Raytown v. Roach, 360 S.W.2d 741, 743 (Mo.App.1962), holds that the symbols, "C & I Acc," were insufficient to charge an offense, so here, "P. O." and "P. O. R.," add no factual content to the information. Supreme Court Rule 28.02 (Rule 30.20 under the recent revisions) provides, in part, that "(a) llegations of error respecting the sufficiency of the information . . . shall be considered upon an appeal although not raised in the trial court or preserved for review." This rule imposes a duty on an appellate court to determine the sufficiency of an information even if the question was never raised at the trial or appellate level, State v. Rose, 428 S.W.2d 737, 741 (Mo.1968) or if it is attacked, even after verdict or on appeal. State v. Hasler, 449 S.W.2d 881, 884 (Mo.App.1969).

Rule 37.18, relating to practice and procedure in municipal courts, is a codification of the general rule that before an information is sufficient and able to sustain a conviction, it must allege all the essential facts constituting a violation of the ordinance upon which it is predicated. Kansas City v. Franklin, 401 S.W.2d 949, 953 (Mo.App.1966); City of Green Ridge v. Brown, 523 S.W.2d 609, 611 (Mo.App.1975). Rule 37.18 provides that "(t)he information or complaint shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." In the words of Judge Somerville in City of Green Ridge :

"An information purporting to charge a person with violation of a penal ordinance is insufficient and cannot sustain a conviction if it fails to allege facts constituting a violation of the ordinance upon which it is predicated. Kansas City v. Graham, 502 S.W.2d 411 (Mo.App.1973); Kansas City v. Franklin, 401 S.W.2d 949 (Mo.App.1966); and City of Raytown v. Roach, 360 S.W.2d 741 (Mo.App.1962). Although an information charging an ordinance violation is not subject to the same degree of strictness and particularity applicable to testing the sufficiency of indictments and informations in criminal cases (due to the hybrid nature of prosecutions for ordinance violations as civil actions with quasi criminal aspects), they must, nevertheless, set forth facts which if found true would constitute the offense prohibited by the ordinance. City of Kansas City v. Narron, 493 S.W.2d 394 (Mo.App.1973), and cases therein cited." Id.

Mention of a statute number in the information is not conclusive as to the offense charged and is treated as surplusage. State v. Byrne, 503 S.W.2d 693, 695 (Mo. banc 1973). But, such an information or complaint is sufficient if it gives notice of the offense and is sufficiently definite to be pleaded in bar of any subsequent prosecution for the ordinance violation. Kansas City v. Waller, 518...