Kansas City v. LaRose

• Decision Date: 17 June 1975
• Docket Number: No. 58599,58599
• Citation: 524 S.W.2d 112
• Parties: KANSAS CITY, Missouri, Respondent, v. Marcia K. LaROSE, Appellant. . Banc
• Court: Missouri Supreme Court

Page 112

524 S.W.2d 112

KANSAS CITY, Missouri, Respondent, v. Marcia K. LaROSE, Appellant.

No. 58599.

Supreme Court of Missouri, En. Banc.

June 17, 1975.

Aaron A. Wilson, City Atty., Louis W. Benecke, Asst. City Atty., by Walter J. O'Toole, Jr., Asst. City Atty., Kansas City, for respondent.

Morgan & Wall, William B. Morgan, Roger Wall, Independence, for appellant.

HOLMAN, Judge.

Appellant (hereinafter referred to as defendant) was convicted in police court upon charges of (1) disorderly conduct and (2) hindering and interfering with a police officer in the discharge of his official duties. She appealed and upon trial de novo the circuit judge sustained a motion to dismiss the disorderly conduct charge at the close of the city's case and a jury found defendant guilty of the other charge and a fine of fifty dollars was assessed. Defendant appealed to the Court of Appeals, Kansas City The following is a sufficient statement of the evidence. Patrolman Gerald Oliver, of the Kansas City Police Department, testified that at about 11 p.m. on January 20, 1972, he and Officer Moss were parked in separate cars in front of a mattress company at 3201 Gillham Plaza; that an individual reported to them that he had seen a prowler in the alley behind the building; that he drove through the alley behind the building to see if there was any appearance of a law violation; that when he saw no signs of the building having been entered he proceeded to check a party he had seen walking away from that area; that he found that person in front of the defendant's residence at 3258 Gillham Road; that as he drove toward the subject in order to question him, the person (later identified as James Carrillo, a son of the defendant) turned and yelled to him as follows: 'F_ _ you cops, you Mother F_ _ing pig.'

District and that court adopted an opinion reversing the conviction because it concluded that the ordinance involved was in conflict with the state statute on the same subject and hence was void. The appeals court, however, transferred the case here for the reason that it considered its decision to be in conflict with certain cases decided by the St. Louis District of the Court of Appeals. We decide the case here the same as on original appeal. We affirm.

Officer Oliver further testified that he informed James that he was under arrest for disorderly conduct and then radioed to Officer Moss to come and assist him. As he got out of the car he told James to stop, but instead the youth ran into the house; that Officer Casselman was the first to respond to his radio message and the two of them went onto the front porch and found the defendant standing on the inside of the locked front door of the residence; that they told her that they had arrested the young man and desired entry in order to take him into custody; that she refused to let them in, saying that they needed a warrant. The front door was constructed with approximately 6 inches of wood frame, with all of the remainder being glass; that they talked with the defendant for at least 5 minutes and were unable to gain entry and were reluctant to break the glass for fear of injuring defendant; that they could see three boys in the living room and saw that two of them had armed themselves with knives and one with a catsup bottle; that they could hear the boys saying 'Come in, you pigs, we'll get you.'

The officer further testified that by this time several other officers had arrived and he and Officer Liss went around to the back door to try to gain entry but found it locked; that they then heard a noise from the front of the house indicating that the door was being forced open and they then forced their way into the house; that one of the boys lunged at Officer Casey with a knife and another struck Officer Casselman in the mouth with his fist; that the boys were taken into custody and removed to the front sidewalk awaiting arrival of the paddy wagon to take them to the station; that during all of this time, the defendant was screaming and yelling and from time to time using obscene language. A crowd of twenty or twenty-five people gathered outside before the defendant and the boys were taken away.

Several other officers testified and corroborated the testimony of Officer Oliver. One officer testified that defendant called them 'M_ _ F_ _ing Pigs' and another officer stated that defendant said 'You are a bunch of bastards.'

The three boys (ranging in age from 13 to 16), two neighbors and defendant testified on the defendant's case. It was conceded that James had used the obscenities attributed to him but he and his mother stated that at the time he was on the front porch. Much of the other testimony adduced by the city was denied by defendant's witnesses. They all denied that the boys had knives or a bottle or that any of them The first point briefed by defendant is that the court erred in failing to sustain her motions for judgment of acquittal because the complaint was insufficient in that it failed to allege the 'essential facts and specific conduct of defendant claimed to be in violation of the ordinance.'

sought to attack the police with knives or struck any officer with their fists.

The information alleged 'That on or about 1--20--72 at 3258 Gillham at about (time) 23:30 defendant did unlawfully within the aforesaid city, county and state commit the following offense: Hinder and interfere with a K.C.Mo. Police Officer who was in the discharge of his official duties by attempting to prevent a party from being arrested by that officer, in violation of Section 26.35 Revised Ordinances of Kansas City, Missouri.' The relevant portion of the ordinance is as follows: 'Section 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.'

We rule that the information was sufficient. Rule 37.18, V.A.M.R., provides that an information in municipal courts shall be a definite written statement of the essential facts constituting the offense charged. This court has held that in this type of case the same strictness is not required as in a criminal prosecution and that a complaint is ordinarily sufficient if it describes the act complained of in the language of the ordinance. City of Springfield v. Stevens, 358 Mo. 699, 216 S.W.2d 450 (1949); City of St. Joseph v. Blakley, 486 S.W.2d 511(5) (Mo.App.1972). In the instant case the charge substantially follows the words of the ordinance. It would have been more complete if it had named the officer involved and the person he sought to arrest. If defendant, however, had desired more detailed information she should have filed a motion seeking a bill of particulars or a more definite statement. We have said that 'When a defendant does not request a bill of particulars or otherwise attack the sufficiency of an information prior to judgment, he waives any claim he may have had for a more definite and certain statement of the offense or cause of action alleged.' Kansas City v. Stricklin, 428 S.W.2d 721, 726 (Mo.1968).

The cases cited by defendant are all distinguishable. It is interesting to note, however, that in one of them the court held a complaint sufficient that alleged 'careless and heedless driving--by failing to yield right-of-way.' See City of Independence v. Peterson, 437 S.W.2d 168 (Mo.App.1969). It appears to us that the instant charge is more complete than the quoted one. As indicated, we rule this point against defendant.

Defendant's next point is that the court erred in failing to sustain her motions for judgment of acquittal because 'The ordinance was void in that it contained no requirement of a mental element and was thereby in conflict with the state law on the offense of hindering and obstructing and a denial of defendant's right to due process of law . . .' The basis of this claim is that Section 557.210, RSMo 1969, V.A.M.S. which proscribes resistance to officers in the service of process and in the discharge of certain other duties contains a requirement that such be 'knowingly and willfully' done. The ordinance, supra, does not contain those words.

It is, of course, well settled that a municipal ordinance must be in harmony with a general law of the state upon the same subject and is void if in conflict therewith. See Section 71.010, V.A.M.S. There is, however, a great conflict of authority in the determination of the specific situations which come within that rule.

At the outset of our consideration of this contention there are certain well established It is, of course, elementary that cities in enacting ordinances need not follow the exact words of a statute upon the same subject in order to avoid invalidity by reason of conflict. The cases hereinafter discussed demonstrate that many variances are permissible.

rules or principles which should be stated. Where its language will permit an ordinance should be construed so as to uphold its validity as against a construction which would invalidate it. Zinn v. City of Steelville, 351 Mo. 413, 173 S.W.2d 398(10) (1943). In 62 C.J.S. Municipal Corporations § 143, p. 294 the rule is stated as follows: 'Ut res magis valeat quam pereat (that the thing may rather have effect than be destroyed) is uniformly applied by the courts to sustain, as being consistent with the general laws and constitution, wholesome bylaws enacted to suppress disorderly conduct, provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of the municipality.'

For convenience of discussion the ordinance and statute are set out as follows:

THE STATUTE

Section 557.210 (emphasis ours)

If any person or persons shall knowingly and willfully obstruct, resist or oppose any sheriff or any other ministerial...