City of St. Louis v. Walker

• Decision Date: 04 February 1958
• Docket Number: No. 29772,29772
• Parties: CITY OF ST. LOUIS (Plaintiff), Respondent, v. Kenneth WALKER (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 671

309 S.W.2d 671

CITY OF ST. LOUIS (Plaintiff), Respondent, v. Kenneth WALKER (Defendant), Appellant.

No. 29772.

St. Louis Court of Appeals, Missouri.

Feb. 4, 1958.

Francis P. Dorsey, Granville L. Gamblin, St. Louis, for appellant.

James V. Frank, City Counselor, W. H. Freivogel, N. B. Young, Asst. City Counselors, St. Louis, for respondent.

ANDERSON, Judge

The defendant was charged with disturbing the peace, in violation of Section 20, Chapter 46, of the Revised Code of the City of St. Louis. The prosecution originated in the City Court where a conviction was obtained. Defendant took an appeal to the Court of Criminal Correction where he was again convicted. This appeal is from the latter conviction.

When the case was called for trial defense counsel requested a continuance, stating that the defendant was ill. This motion was denied. Defendant's counsel then requested a jury trial. In response to this request the trial judge stated he would not grant a trial by jury unless the defendant was present. Defense counsel replied that the defendant was not present, whereupon the court stated: 'We'll proceed by default.' The court then proceeded to hear the testimony.

Police Officer James Hackett was called to the stand. He testified that on September 21, 1956, while driving south on Kings-highway he noticed a large number of Negro boys around an automobile which was occupied by five or six white youths. Kenneth Walker, the defendant, was the driver of the automobile. One of the Negro boys had a pistol in his hand. When Officer Hackett and Captain McAllister arrived at the scene the Negro boy with the pistol ran. Defendant then got out of the car with a knife in his hand, waved the knife, and used 'strong words' directed at the Negro boys. The officer testified he did not hear any of the words spoken. There were about one hundred people gathered at the scene of the disturbance. The officers made six arrests. The Negro boys were all juveniles. The witness testified that defendant said he had gone to meet some friends of his who were attending O'Fallon Technical High School; that defendant said he heard there was going to be a gang fight so he went with these friends; that defendant had a knife in the glove compartment of his car and when he saw the Negro boy pointing the pistol through the window he took the knife from the glove compartment to protect himself; that defendant denied waving the knife. The witness further testified that his investigation revealed that the pistol was thrust through the window where Walker was seated and pointed at Walker's head.

On the foregoing evidence the court found defendant guilty and as punishment assessed a fine of $300. Defendant filed a motion for new trial and upon its being overruled appealed to this court.

It is urged that the court erred in (1) refusing to grant appellant's request for a jury trial; and (2) trying the case without the presence of defendant in court.

In the recent case of City of St. Louis v. Moore, Mo.App., 288 S.W.2d 383, we held that it was error for the Court of Criminal Correction to deny a jury trial to a defendant charged with the violation of a city ordinance. In the opinion in that case we set out fully our reasons for no holding. Those reasons were based upon an interpretation of applicable statutes which in our judgment made it mandatory on the court to afford the accused a jury trial when same was requested. We referred to Section 98.020 RSMo 1949, V.A.M.S., which provides that an appeal from a police court for the violation of a city ordinance 'shall be in the nature of a criminal appeal from a magistrate.' We refered also to Supreme Court Rule 22.16, 42 V.A.M.S., which provides that such appeals shall be heard and tried de novo. We then held: (288 S.W.2d loc. cit. 385)

'It is therefore obvious that the trial in the court of criminal correction should have been the same as if the case had originated there. The procedure to be followed is that prescribed by statute for trials in the court of criminal correction. This is Section 479.180 RSMo 1949, V.A.M.S., which states: 'The proceedings of said court shall be governed by the laws regulating proceedings and practice in criminal cases, so far as the same may be applicable, and no written pleadings shall be required of the defendant in any case.' It appears therefore that the trial in the court of criminal correction should be the same as a trial before a magistrate, for Supreme Court Rule 22.09 states in almost the same language: 'All proceedings upon the trial of misdemeanors before magistrates shall be governed by the practice in criminal cases in circuit courts, so far as the same may be applicable * * *.'

'Considering now the question of the defendant's right of trial by jury before a magistrate, Section 543.200 RSMo 1949, V.A.M.S., provides that he shall have that right upon request and it is error to refuse it.'

Respondent says the Moore case, supra, should be overruled. In support of this contention it is pointed out that neither the Constitution of Missouri nor the Constitution of the United States guarantees to a person charged with the violation of a city ordinance the right of trial by jury. To this we agree. However, the right here asserted is not based upon any supposed constitutional right, but upon the statutes regulating procedure, which in our judgment clearly provide for a jury trial in such cases, if requested.

Respondent next contends that since such prosecutions have been regarded by the courts as civil in nature, the right of trial by jury is governed by the provisions of the Civil Code, Section 510.190 RSMo 1949, V.A.M.S., which, among other things, provides that a party may be deemed to have waived a trial by jury by failing to appear at the trial.

Respondent's contention cannot stand in the face of the statutes cited and construed in the Moore case, supra. No doubt the Legislature could amend the law and take away the right to a jury trial in such cases. Such action would no doubt be constitutional, under the ruling of the Supreme Court in Delaney v. Police Court of Kansas City, 167 Mo. 667, 67 S.W. 589, but until the Legislature takes such action we are not at liberty to set aside or ignore the statutes cited and relied on in the Moore case, supra. And this is so whether such actions be deemed civil, criminal, or quasi criminal. We see no reason to depart from the ruling in the Moore case, supra. Said case rules the case at bar. The trial court erred in denying defendant's request for a jury trial.

The court also erred in trying the case without the presence of defendant in court. This point is also ruled by City of St. Louis v. Moore, supra. There we said:

'Since the case must be retried it should also be noted that the defendant must be present in court for the trial. When the case is called and the defendant is not present the court may then order a capias for his arrest. There is but one exception to the need for the presence of the defendant at the trial and that is where the defendant, charged with a misdemeanor, may request that he be allowed to plead and stand trial while absent from the court. This may be done with the consent of the court and prosecutor. Supreme Court Rule 29.02.'

But respondent says our ruling in the Moore case is erroneous and contrary to the previous controlling decision of the Supreme Court in City of St. Louis v. Murphy, 24 Mo. 41. In that case, the defendant was tried before the City Recorder for a breach of the peace. Defendant was found guilty and fined $50. He appealed to the St. Louis Criminal Court. On the day the case was set he appeared with his witnesses. During the course of the day he absented himself from the courtroom for a short period to answer the call of nature. During his absence his case was called for trial. Defendant, of course, did not answer, whereupon the court affirmed the judgment of the Recorder. This judgment was affirmed by the Supreme Court which held that such a judgment was authorized by the statute, and that the trial court did not abuse its discretion in refusing to set it aside. In passing on the case, the court said:

'By the city charter, as amended by the legislature in 1852 and '53, the recorder has the same jurisdiction as justices of the peace within the limits of the city, in all state cases. He has jurisdiction over all cases arising under any ordinances of the city, subject to an appeal in all cases to the St. Louis Criminal Court; and every such appeal shall be taken and granted...