State ex rel. Schultz v. Harper
| Decision Date | 18 October 1978 |
| Docket Number | Nos. KCD,s. KCD |
| Citation | 573 S.W.2d 427 |
| Parties | STATE of Missouri ex rel. Gene SCHULTZ, Respondent, v. Milt HARPER, Prosecuting Attorney, Appellant, and STATE of Missouri ex rel. Wendell MITCHELL et al., Respondents, v. Milt HARPER, Prosecuting Attorney, Appellant. 30275, KCD 30276. |
| Court | Missouri Court of Appeals |
Milt Harper, pro se.
Larry M. Woods, Sapp, Woods & Orr, Columbia, for respondent Gene Schultz.
Before SWOFFORD, C. J., SHANGLER and PRITCHARD, JJ.
These consolidated cases originated in Boone County, Missouri by the filing in that court of two separate petitions for writs of mandamus against Milt Harper, the Prosecuting Attorney of that County, seeking to compel him to file charges based upon affidavits by the respective respondents charging the other respondent with violation of the laws arising from occurrences on October 26, 1977 at Columbia, Missouri. Respondent Schultz is a private citizen and respondents Wendell Mitchell and Alan Mitchell are members of the Columbia, Missouri Police Department. The record lacks any details as to the circumstances giving rise to these actions except as to the facts that they occurred on October 26, 1977, at the Schultz residence.
The affidavits filed by respondent Schultz with the Prosecuting Attorney charged that "* * * Alan Mitchell and Dennis Veatch, police officers of the City of Columbia * * * were guilty of the commission of the crimes of Common Assault, Trespass, Oppression in Office, and Forcible Entry and Detainer * * *".
The joint affidavit filed by Wendell Mitchell and Alan Mitchell charged that Schultz "did wilfully strike, beat or wound Wendell Mitchell, a peace officer, while such officer was actively engaged in the performance of duties imposed on him by law * * *". Both respondents alleged in their separate petitions, in substance, that such affidavits complied with the requirements of law and were deposited with the appellant-prosecutor for the purpose of causing him to file informations thereon; that they demanded that he do so as was his obligation under the law; that he refused to do so; and, that he had no discretion in the premises. Upon the basis of these petitions, the court below issued alternative writs of mandamus.
In his returns thereto, the appellant, in substance, admitted that the affidavits were filed with him for the purpose of filing informations thereon; that he investigated the allegations of criminal conduct contained therein; that, in the exercise of his absolute prosecutorial discretion, he decided that upon the law and the facts no criminal conduct had occurred; and, that he, therefore, refused to file criminal informations. The court below thereafter ordered its peremptory writs of mandamus issued and the prosecutor appealed to this Court, where the appeals were consolidated.
At the outset, it is noted that the record is unclear as to the names of the police officers involved. The transcript in the Schultz case (No. KCD 30,275) does not contain a copy of the affidavit filed by Schultz with the prosecutor but his petition for mandamus identifies the persons he charges as Alan Mitchell and Dennis Veatch, police officers. The affidavit filed in the other case is shown in the transcript. It was signed by Wendell Mitchell and Alan Mitchell, police officers, and states that Wendell Mitchell was the recipient of the Schultz assault. Dennis Veatch appears in the record only in the Schultz petition. The alternative and peremptory writs issued by the court below in the Schultz case do not identify the person or persons against whom the prosecutor is commanded by the writ to file informations.
While respondents Mitchell were represented by counsel in all proceedings below, they have not filed a brief in this appeal. However, this deficiency and confusion in the record is not raised by the parties and has no effect upon the decision in view of this Court's conclusions as to the legal issues here decisive of the appeals.
The single dispositive issue for decision is the duty and obligation of a prosecutor, when sworn affidavits are filed with him charging another with a criminal offense, to file informations thereon. Or stated in another light, to what extent can or should he exercise his discretion in such circumstances?
The appellant-prosecutor's position is that under the statutes. § 56.060 RSMo 1969, and § 545.250 RSMo 1929, RSMo 1969, and the decisional law relating thereto, upon the filing of the affidavits of complaint above described it lies within his absolute discretion as to whether or not a criminal charge is filed based upon such affidavits; that after investigation he concluded that such informations should not be filed, and it would have been improper for him to do so since the criminal charges were not supported by probable cause; and, that the writs of mandamus were incorrectly issued.
On the other hand, respondent Schultz in his brief takes the position that under §§ 545.250, 545.240, 543.030 and 543.040, RSMo 1969, it was the absolute duty of the appellant-prosecutor to file the informations based upon the affidavits with no room for the exercise of any discretion. The issue is thus clearly drawn and requires an examination of the statutory and case law existing on this subject.
The broad and all-inclusive duties and obligations of a prosecuting attorney in Missouri are stated in § 56.060 RSMo 1969, which provides in part that:
"Each prosecuting attorney Shall commence and prosecute all civil and criminal actions in his county in which the county or state is concerned * * *" (Emphasis added)
§ 545.250 RSMo 1969, upon which the actions here involved are based, in essential part, provides:
"When any person has knowledge of the commission of a crime, he may make his affidavit * * * and file the same with the clerk * * * or deposit it with the prosecuting attorney * * * and It shall be the duty of the prosecuting attorney to file an information, as soon as practicable, upon said affidavit, as directed in section 545.240." (Emphasis added)
§ 545.240 referred to covers the procedural steps to be followed in filing an information based upon a citizen's complaint and affidavit.
§ 545.250 was first enacted in 1877, Laws 1877, p. 354. Section 6 of that enactment stated that "the prosecuting attorney Must file an information as soon as practicable", instead of the term "it shall be the duty of the prosecuting attorney" as above quoted from the present statute, which was enacted in identically its present form as Section 3505, RSMo 1929.
Respondent Schultz also cites §§ 543.020 and 543.030 RSMo 1969 as supportive of his position. Chapter 543 deals with proceedings before Magistrate courts in misdemeanors, and § 543.020, in pertinent part, provides that complaints covering this type of offense may be filed by the complainant with the magistrate having jurisdiction of the offense, or deliver the same to the prosecuting attorney who "shall Forthwith file an information" with the proper magistrate. § 543.030 provides in part that all such informations shall be made and signed by the prosecuting attorney and shall be filed with the magistrate "As soon as practicable " (Emphasis added). It is apparent that the Legislature in the enactment of these sections employed the terms "forthwith" and "as soon as practicable" (the latter phrase being the same as that employed in § 545.250) as synonymous so that a determination of the meaning of the phrase as used in § 545.250 under the decisions will be equally binding as to the meaning of the phrases employed in §§ 543.020 and 543.030.
The parties' briefs and independent research do not disclose any decisions in this state that factually present this exact issue nor which involve the extraordinary writ of mandamus procedure to force a prosecutor to file an information upon a citizen's complaint without the exercise of any discretion, regardless of the factual results of his own investigation and his application of his legal knowledge and judgment. However, the courts on several occasions have been called upon to both define his Obligations as prosecutor in such circumstances and also to define the Limits thereof under the statutes in question here.
In State on Inf. McKittrick, Atty. Gen. v. Wymore, Pros. Atty., 345 Mo. 169, 132 S.W.2d 979 (Banc 1939) a Quo Warranto proceeding was brought by the Attorney General of Missouri against the Prosecuting Attorney of Cole County...
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State v. Greer
...attorney, who in a reasonable exercise of discretion may determine whether the complaint warrants prosecution. State ex rel. Schultz v. Harper, 573 S.W.2d 427 (Mo.App.1978). A preliminary hearing before a judge is required which the accused is entitled to attend, introduce evidence in his b......
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Simpson v. Kilcher
...under Carver to avoid civil suits simply because the local prosecutor decides not to prosecute the seller. See State ex rel. Schultz v. Harper, 573 S.W.2d 427, 431 (Mo.App.1978). Neither is it apparent that this restriction of the right to sue sellers of liquor is justified by an overpoweri......
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State v. Cooley
...discretion in filing an information. State on inf. McKittrick v. Wymore, 345 Mo. 169, 132 S.W.2d 979 (banc 1939); State ex rel. Schultz v. Harper, 573 S.W.2d 427 (Mo.App.1978). She was afforded the due process of a jury trial. A jury found beyond a reasonable doubt she promoted pornography.......
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State, ex rel., Missouri Highway and Transp. Com'n v. Pruneau, s. 13060
...discretion where it could be exercised lawfully in a variety of ways, including by the choice not to act at all. State ex rel. Schultz v. Harper, 573 S.W.2d 427 (Mo.App.1978). These limitations on the judicial branch become particularly sensitive where, as here, the law places discretion at......