Kansas City v. Mathis, 24434

• Decision Date: 03 October 1966
• Docket Number: No. 24434,24434
• Citation: 409 S.W.2d 280
• Parties: KANSAS CITY, Plaintiff-Respondent, v. Katherine MATHIS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 280

409 S.W.2d 280

KANSAS CITY, Plaintiff-Respondent, v. Katherine MATHIS, Defendant-Appellant.

No. 24434.

Kansas City Court of Appeals, Missouri.

Oct. 3, 1966.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 5, 1966.

Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.

Herbert C. Hoffman, City Counselor, George L. DeBitetto, Assistant City Counselor, Kansas City, for respondent.

CROSS, Presiding Judge.

Although this appeal is docketed as a single cause, it includes three separate actions tried to final judgment, to-wit, cases numbered 5257, 5417 and 5418 in the Circuit Court of Jackson County, Missouri. All three cases were originally filed in municipal court by the City of Kansas City, Missouri, as plaintiff, against Katherine Mathis as defendant, and are in the nature of prosecutions for alleged violations of municipal ordinances. Defendant was convicted in municipal court in all three cases and duly appealed to the circuit court.

In case No. 5257 defendant was charged with vagrancy by information filed pursuant to her arrest on March 4, 1965. A subsequent arrest on March 15, 1965, gave rise to cases No. 5417 and No. 5418 in which she was charged, respectively, with disorderly conduct and resisting arrest. Case No. 5257 was tried as a separate action and the appeal issues arising from it will be separately discussed and determined. Cases No. 5417 and 5418 were tried simultaneously on the same evidence and will be considered together.

CASE NO. 5257: The information filed in municipal court in behalf of the city charged that on or about the 4th day of March, A.D., 1965, one Katherine Mathis 'was a prostitute, and a lewd woman, had no visible means of support and was found loitering about the streets or frequenting saloons' in violation of Section 62.050 of the Revised Ordinances, 1956, of Kansas City, Missouri. Following defendant's conviction in municipal court and her subsequent appeal to the circuit court, the cause was tried to that court without a jury. The only witness in the case was Oliver Wallen, a police vice squad detective. He testified for the city that he arrested defendant on March 4, 1965, 'as a known prostitute', after observing her standing at the front window of the Gray Room Lounge, located in the Street Hotel. She was taken into custody in the restaurant, adjoining the lounge at approximately the hour of midnight.

When arrested, defendant told the officer she was working in the cafe as a waitress. She had previously told Wallen that was her occupation. Wallen stated that he had investigated at various hours of the day and night but he had never seen her in uniform or waiting tables or working otherwise. He made no inquiry of the restaurant manager as to whether defendant worked there. Wallen further stated 'I had never seen her work up until then (the time of her arrest). I have seen her working since; however, she doesn't wear a uniform like the rest of the waitresses. She is dressed up in a nice dress just the same as she did before. She doesn't wear a uniform like the rest of them'. Wallen didn't remember whether she had any money on her when he arrested her. Defendant had a room available to her in the Street Hotel which she occupied part of the time.

The trial court found defendant guilty of vagrancy and sentenced her 'to 120 days or a fine of $200.00'. Formal judgment was entered accordingly and defendant appealed.

Defendant challenges the sufficiency of the evidence to support the judgment of conviction and specially contends there was no substantial evidence to establish the essential element of the charge that she had no visible means of support. These questions will be resolved under legal principles and procedural rules applicable in criminal cases. Section 98.020 V.A.M.S. provides that '(a)ppeals from police courts and for violation of an ordinance of a city, town or village shall be in the nature of a criminal appeal from a magistrate.' The Supreme Court construes this statute to mean that 'appeals from judgments of the municipal courts in prosecutions for the violation of ordinances, (are) to be tried in accordance with the Criminal and not the Civil Code', City of Milan v. Allen, Mo.Sup., 175 S.W. 933; and that 'the accused is clothed with the presumption of innocence; that he can be convicted only upon proof of guilt beyond a reasonable doubt, and upon the unanimous verdict of a jury.' King City v. Duncan, 238 Mo. 513, 142 S.W. 246. Also see City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935. Consequently the city had the burden of proving 'every element of the offense charged and defendant's guilt thereof beyond a reasonable doubt throughout the trial.' State v. Fitch, Mo.App., 162 S.W.2d 327; State v. Williamson, 339 Mo. 1038, 99 S.W.2d 76.

In this case one of the essential elements of the offense of vagrancy, as it is defined by the city's ordinance and charged against defendant by the information, is that she had 'no visible means of support.' In undertaking to establish that defendant had no visible means of support the city made no claim that she was without funds or property, but relied solely upon the proposition that she was unemployed. The only evidence adduced by the city on that issue was the testimony of Wallen, who stated negatively that he 'had never seen her in the cafe in uniform or waiting tables' or doing 'any manner of work'.

On the other hand, Wallen's testimony is the fountain source of positive evidence on defendant's behalf tending to establish that she was in fact employed at and prior to the time of her arrest. He testified that when he arrested defendant he asked her if she was employed and that she told him 'she worked in the cafe as a waitress'. Although the quoted statement thus attributed to defendant enters the record as an admission by the city's witness, and as hearsay testimony volunteered by him to which no objection was interposed, it nevertheless stands as evidence in the case. 27 Mo.Digest Trial k105(2). Its credibility and probative value were factors to be determined by the trier of the facts under appropriate rules of evidence. Wallen's testimony additionally establishes facts and circumstances tending to corroborate defendant's affirmative declaration that she was employed as a waitress. Notwithstanding defendant admittedly so informed the officer, he 'didn't bother to check with the management'. It is further admitted by Wallen that since March 4, 1965, he has 'observed her in there working * * * however, she doesn't were a uniform like the rest of the waitresses. She is dressed up in a nice dress just the same as she did before. She doesn't wear a uniform like the rest of them.' These facts reasonably permit inference that when Wallen observed defendant at the hotel prior to arresting her, he erroneously formed the belief she was unemployed because she was not attired in the same garmenture worn by other waitresses in the establishment.

However, the real infirmity of Wallen's testimony, it being negative in nature, is its lack of the requisite evidentiary foundation to show that the witness had sufficient opportunity to observe whether or not plaintiff was in fact employed. The probative value of negative testimony rises or declines according to 'the opportunity of the witness giving it to hear and observe'. 20 Am.Jur., Evidence, Sec. 1187, p. 1039. Also see Williamson v. Wabash R. Co., 139 Mo.App. 481, 122 S.W. 1113; Lafferty v. Wattle, Mo.App., 349 S.W.2d 519. 'The mere fact that a witness did not hear or see something, standing alone, ordinarily has no probative value as to the occurrence, or non- occurrence, of the event, and it may acquire such value only when coupled with a predicate to establish that the witness was in a position to have heard or seen the occurrence if it had happened.' 32A. C.J.S. Evidence § 1037, p. 719, citing Finley v. Illinois Central R. Co., Mo.App., 251 S.W.2d 713. The foregoing principles were observed by the Court of Appeals of Georgia, in Jacobs v. State, 1 Ga.App. 519, 57 S.E. 1063, as the basis for its reversal of a judgment of conviction in a prosecution for vagrancy. The court there said: 'It appears from the evidence the one of the witnesses for the state did not see the defendant work; but this purely negative evidence is all that the state produced. * * * The most the witness was able to testify was that he had seen the defendant at times when he was not at work. That positive evidence is to be preferred to negative is an clementary rule of evidence, binding upon juries, but absolutely disregarded in this case. If the allegations were sustained by some proof (however little), we would not disturb the verdict; but material allegations made by the state must be proved in the prosecutions of vagrancy as in other cases'.

So it is in this case. According to the officer's testimony his opportunity to observe defendant at work was limited to those occasions on which he 'made special effort both day and night at various hours to check and see if she worked there'. The witness did not see fit to state with any particularity the frequency of his 'checks' or the duration of his surveillance. In view of the vagueness and indefiniteness of the officer's testimony on these attributes of his 'investigation' we do not believe it has been established that he had sufficient opportunity of observation to render his testimony of substantial evidentiary value. Having in mind the positive testimony of defendant that she worked in the cafe, we further believe that she could reasonably have been engaged in such employment without having been so observed by the officer. 'The probative force of negative evidence is reduced to absolute zero where the fact might reasonably have occurred without being observed by, or known to, the witness * * *.' 32A C.J.S. Evidence § 1037, p. 720.

It is our conclusion that the city has not discharged...