City of St. Louis v. Penrod

• Citation: 332 S.W.2d 34
• Decision Date: 16 February 1960
• Docket Number: No. 30271,30271
• Parties: CITY OF ST. LOUIS (Plaintiff), Respondent, v. Earl PENROD (Defendant), Appellant.
• Court: Court of Appeal of Missouri (US)

Page 34

332 S.W.2d 34

CITY OF ST. LOUIS (Plaintiff), Respondent, v. Earl PENROD (Defendant), Appellant.

No. 30271.

St. Louis Court of Appeals, Missouri.

Feb. 16, 1960.

Schomburg & Marshall, Richard M. Marshall, Glen C. Schomburg, Gerald K. Rabushka, St. Louis, for appellant.

Thos. J. Neenan, City Counselor, David S. Hemenway, Asst. City Counselor, St. Louis, for respondent.

RUDDY, Judge.

Defendant was charged in City Court No. 2 of the City of St. Louis with resisting a police officer of said City, while the said officer had the defendant under arrest and in custody, which was alleged to be in violation of an ordinance of said City. Defendant was found not guilty in the City Court and the City of St. Louis appealed to the St. Louis Court of Criminal Correction. There was a waiver of trial by jury in said court. After a hearing defendant was found guilty and he has appealed to this court.

The first point relied on by defendant is that the lower court erred in overruling his motion to dismiss on the ground that the St. Louis Court of Criminal Correction lacked jurisdiction because he had previously been acquitted in the City Court of St. Louis. Defendant cites the provisions of Sec. 479.100 RSMo 1949, 27 V.A.M.S., in support of his contention. This section of the statutes has no application to the facts and procedure of this case. The instant case does not involve separate prosecutions, one in the St.Louis Court of Criminal Correction for a misdemeanor, and one in the City Court of St. Louis for the violation of a city ordinance. It only involves an appeal by the City of St. Louis from an adverse decision by the City Court of said city on a charge against defendant of violating a city ordinance. There is no attempt to prosecute a misdemeanor under the laws of this state in the St. Louis Court of Criminal Correction. As said, the action tried in the St. Louis Court of Criminal Correction was an appeal by the City of St. Louis from the decision rendered in the City Court of said city. Nothing we say herein is to be construed as a holding that a separate prosecution in each court, even though both rest on the same foundation of facts, is not permissible. City of St. Louis v. Mueller, Mo.App., 313 S.W.2d 189; State v. Jackson, Mo.App., 220 S.W.2d 779. We do not have that question encompassed within the facts of this case. We merely point out that only one offense is charged and that there is only prosecution, that by the City of St. Louis. Therefore, section 479.100, supra, has no application.

Section 3 of Article XII of the Charter of the City of St. Louis (1914), of which we take judicial notice (Constitution of Missouri, 1945, Article VI, Sec. 33, 2 V.A.M.S.) provides as follows:

'The city courts shall have jurisdiction of all cases arising under this charter or any ordinance, subject to appeal by the city or the defendant to the St. Louis court of criminal correction in like manner as provided by law for appeals from justices of the peace in criminal cases to their appellate courts * * *.' (Emphasis added.)

The appellate jurisdiction of the St. Louis Court of Criminal Correction of appeals from the City Courts of the City of St. Louis is stated in section 479.110 RSMo 1949, 27 V.A.M.S., as follows:

'The court shall have and exercise exclusive appellate jurisdiction in all cases appealed from city police courts in the city of St. Louis, and all such appeals shall be taken in the manner and form prescribed by section 543.290, RSMo 1949, for misdemeanor cases appealed from the magistrate court, except that the application for appeal shall be filed immediately after judgment.'

It is the settled law of this state that a prosecution for the violation of a city ordinance is a civil action. While the primary object of the ordinance may be to punish, a prosecution for a violation thereof is, nevertheless, civil in form, despite its resemblance to a criminal action in its effects and consequences. City of Webster Groves v. Quick, Mo., 319 S.W.2d 543; City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935. Because it is civil in form, the right of the City to appeal, which right is given to it in Sec. 3 of Article XII of the Charter of the City of St. Louis, has been upheld the same as in the case of any other party to a civil action who is aggrieved by the judgment in favor of its adversary. City of St. Louis v. Mueller, supra; City of Clayton v. Nemours, supra. The St. Louis Court of Criminal Correction had jurisdiction of the appeal taken by the City of St. Louis.

For his next point defendant contends that the court erred in overruling his motion to dismiss because the evidence failed to show a lawful arrest and, therefore, there could be no offense of resisting arrest. The City of St. Louis contends the officers had reasonable grounds to make the arrest.

In support of the charge the City of St. Louis offered who witnesses, Detective Sergeant John Walsh and Detective Tom Crowe, officers of the St. Louis Police Department. On May 31, 1958, about 11 A.M., both officers were in civilian clothes and were riding in an unmarked automobile in the vicinity of Union and Wells Avenues in the City of St. Louis. They saw defendant walking westwardly on Wells Avenue on the north side of the street accompanied by a boy about 8 years of age. Detective Crowe was driving the police car and Sergeant Walsh was seated beside him in the front seat. Detective Crowe had seen defendant in Forest Park 'around the rest room' on several occasions. He did not say when those occasions occurred. The attorney for the City of St. Louis asked Detective Crowe if he 'had arrested him (defendant) for child molestation.' At this point the court interrupted the interrogation with a question. There is nothing in the officer's answer to the court's question or to any other question that indicates the officer ever arrested defendant for child molestation or for any other offense.

After seeing defendant on Wells Avenue in the company of the boy, Detective Crowe stopped the police car, got out of the car and approached defendant. Later, Sergeant Walsh got out of the car and both officers asked defendant where he was going with the boy. Defendant told them the boy was his nephew and that he was taking him to his (defendant's) mother's home. The officers then questioned the boy. He refused to answer their questions until defendant instructed the boy to do so. The boy then told the officers defendant was his uncle and that he was being taken to the home of defendant's mother. The officers then told defendant and the boy to proceed to their destination. Detective Crowe testified that when he approached defendant he showed his officer's badge to defendant. He said he asked defendant if he knew him and defendant told him that he did.

After the officers told defendant and the boy to proceed, they got back into the police car and defendant and the boy proceeded to walk westwardly on Wells Avenue. When defendant and the boy arrived at the western end of the block they stopped, turned, and looked in the direction of the police car. After a while defendant walked eastwardly in the direction of the police car. When defendant was abreast of the police car Sergeant Walsh instructed Detective Crowe to have the defendant show 'some identification.' In conncection with the alleged arrest and resistance the record shows the following testimony given by Sergeant Walsh. '* * * Tom alights from the police car and steps to the sidewalk, and told him (defendant) he wanted to see some identification, * * * about that time he grabbed Tom Crowe and by the front part of the coat, at that time Tom told him he was under arrest, get in the police car * * *.' At another place in his testimony, Sergeant Walsh said 'he grabbed Tom Crowe by the coat and Tom told him he was under arrest * * * I jumped out of the car * * * and ran up to where this was taking place, and about that time, I would say the resistance stopped, and we placed him in the back of the car * * *.'

Detective Tom Crowe testified Sergeant Walsh asked him if he was sure he knew the defendant. Detective Crowe told Sergeant Walsh he had seen defendant several times in Forest Park around the rest room. Sergeant Walsh then instructed him to have defendant show some identification. Detective Crowe then testified that he got out of the police car and asked defendant for his driver's license and defendant told him he was not going to show him anything. He further testified that he told defendant 'you are under arrest until we clear up the matter * * *.' Detective Crowe further testified that defendant then grabbed for his arm and when that occurred he and Sergeant Walsh pushed defendant into the back seat of the police car. In his cross-examination Detective Crowe said defendant 'was under arrest when he grabbed at me or pushed me * * *.'

Defendant in his testimony said he was walking westwardly on Wells Avenue with his young nephew when suddenly a car pulled abreast of them and stopped at the curb. The car was...