State v. Briggs

• Decision Date: 09 December 1968
• Docket Number: No. 53465,No. 2,53465,2
• Citation: 435 S.W.2d 361
• Parties: STATE of Missouri, Respondent, v. Stanley L. BRIGGS, Appellant
• Court: Missouri Supreme Court

Page 361

435 S.W.2d 361

STATE of Missouri, Respondent, v. Stanley L. BRIGGS, Appellant.

No. 53465.

Supreme Court of Missouri, Division No. 2.

Dec. 9, 1968.

Motion for Rehearing or for Transfer to the Court En Banc

Denied Dec. 31,

1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Lindell R. Church, Special Asst. Atty. Gen., Springfield, for respondent.

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

FINCH, Presiding Judge.

Defendant was prosecuted under the Second Offered Act (§§ 556.280 and 556.290) ¹ for striking, beating and wounding a police officer of Riverside, Missouri, in violation of § 557.215, RSMo Supp.1967, V.A.M.S. The trial court, having conducted a hearing outside the presence of the jury, found the Second Offender Act applicable and sentenced defendant to imprisonment for two years after he was convicted by the jury of assaulting a police officer. Defendant appeals. We affirm.

This case comes to the writer on reassignment.

The evidence, viewed most favorably to the State, would support there findings: Kenneth Ketcham was a part-time uniformed policeman of Riverside, Missouri, a city of the fourth class, and had so served for about four years. On the evening of September 23, 1966, he responded to a call to Kelly's Tavern in Riverside. There had been some fights in the tavern but these occurred before the arrival of Ketcham. On arrival, he found the owner, Mr. McKeon, Mrs. McKeon, and various patrons, including the defendant Briggs. Defendant was standing at the bar and his clothing was mussed up and disorderly, his eyes bloodshot, and his speech slightly slurred. McKeon pointed at the defendant. Ketcham then told defendant that he was placing him under arrest and he would have to come along. Meanwhile, Sgt. Meyers of the Riverside Police Department, dressed in civilian clothes, also had come in and was standing there when this occurred. Defendant responded to Ketchum by saying, 'You know what's going to happen if we go out there' or 'You know what you are going to get when you get outside'. Ketcham responded that they could go one of two ways. Briggs then agreed to go outside and left the tavern, followed by Meyers and then Ketcham. Meyers had his hand on defendant's arm.

The three of them had to go around a pickup truck on a parking lot to get to where the patrol car was parked. There were pipes or a ladder, or both, extending out beyond the tailgate. As they went around the end of the truck, defendant turned and hit Sgt. Meyers, who went to the ground when he tripped over the ladder. The defendant when stepped back and with his fist hit Ketcham on the cheek, causing a bruise. Ketcham then jabbed defendant in the ribs with his baton and defendant continued to swing at and strike Ketcham with his fists. When Sgt. Meyers got up from the ground, he grabbed defendant and Meyers and Ketcham then subdued defendant and held him on the ground while they placed handcuffs on him. They then put him in the patrol car and took him to the police station.

Defendant thereafter was charged under § 557.215 with assaulting a police officer. A charge of drunkenness under the city ordinance was never filed.

Defendant's first contention is that the court erred in not submitting the issue of punishment to the jury for the reason that the allegations of the information were insufficient to invoke the Second Offender Act.

Section 556.280 provides that the court may assess punishment where a defendant previously has been convicted of a felony and was 'sentenced and subsequently placed on probation, paroled, fined or imprisoned therefor * * *.' Section 556.290 provides that convictions in states outside of Missouri also provide a basis for application of the Second Offender Act.

The information herein charged that defendant 'on or about the 7th of January 1964, in the Superior Court of the State of California in and for the County of Imperial was duly convicted of the offense of escape and in accordance with said conviction was duly committed to the Youth Authority of the State of California and was subsequently discharged.'

These allegations are not a model to be followed, but we have concluded that they are sufficient to meet the requirements of the statute. The information alleges defendant's conviction and that he then was committed to the Youth Authority and subsequently discharged. At the hearing conducted out of the presence of the jury on the issue of the applicability of the Second Offender Act the State introduced an authenticated copy of the proceedings in California. That document included the sentencing of defendant, as follows:

'THAT WHEREAS THE said STANLEY L. BRIGGS having been convicted by the court of the crime of ESCAPE FROM JAIL WITHOUT FORCE OR VIOLENCE

'IT IS ORDERED, ADJUDGED AND DECREED that the said STANLEY L BRIGGS be imprisoned in a California State Prison for the term prescribed by law.

'HOWEVER, execution of sentence is suspended and commitment is withheld and the defendant is referred to the California Youth Authority for acceptance.'

The transcript further shows subsequent commitment of the defendant to the California Youth Authority for the time prescribed by law. There was testimony that the defendant then reported on his parole to state probation and parole officers in Missouri under the Interstate Compact and was given a final discharge from the State of California on September 26, 1966.

The information herein is not comparable to the information in the cases of State v. Miller, Mo., 427 S.W.2d 506, and State v. Wiley, Mo., 412 S.W.2d 485, cited and relied on by defendant. In both of those cases the information charged that the defendant was convicted and sentenced but then stopped. There was nothing whatsoever to indicate that he had been placed on probation, paroled, fined or imprisoned. The information against defendant Briggs did not stop with his sentencing but proceeded to allege that defendant was committed to the California Youth Authority and subsequently discharged. If defendant desired more detailed information, he had the means of obtaining it by a motion for a bill of particulars pursuant to Supreme Court Rule 24.03, V.A.M.R. He did not do so and he thereby waived further details. See State v. Kesterson, Mo., 403 S.W.2d 606(5), and cases therein cited.

Defendant objected to the introduction of the authenticated copy of the California proceedings on the theory that they disclosed that defendant received a suspended sentence and that such suspended sentence, under the authority of State v. Gordon, Mo., 344 S.W.2d 69, could not be the basis for invoking the Second Offender Act. This contention cannot be sustained because the California proceedings disclose that the defendant was sentenced and that execution of the sentence was suspended and he was placed with the California Youth Authority, not that sentencing was suspended.

A second assignment by the defendant is that § 79.250 ² as it existed in September 1966, at the time of this incident, required a police officer of a fourth class city to be a resident and qualified voter of the city, and that Ketcham, being a nonresident of Riverside, was not qualified to serve as a police officer. Consequently, says defendant, no duties were imposed on Ketcham by law and defendant's motion for judgment of acquittal should have been sustained.

It is clear that under the provisions of § 79.250, as they then existed, Kenneth Ketcham did not possess the requisite residence qualifications to serve as a police officer at Riverside. However, the city had undertaken to appoint him as a part-time police officer some four years previously, and he had been acting regularly in that capacity. Under such circumstances, he was a de facto officer. In State v. Dierberger, 90 Mo. 369, 2 S.W. 286, the State was prosecuting a murder charge against one who, although appointed a deputy constable, had not taken the oath of office. The court reversed the conviction and remanded for a new trial, finding that defendant was a de facto officer and in that prosecution should be treated as an officer, with the instructions drafted accordingly. In the course of the opinion the court, quoting from People v. Hopson, 1 Denio 574, 575, said (2 S.W. l.c. 288): "But it is equally well settled that the acts of an officer de facto, though his title may be bad, are valid, so far as they concern the public, or rights of third persons who have an interest in the things done. Society could hardly exist without such a rule. * * * The people are prosecuting for a breach of the public peace; and it is enough that Lascells was an officer de facto, having color of lawful authority. The rights of a creditor, the due administration of justice, and the good order of society all concur in requiring that he should be respected as an officer until his title has been aside by due process of law.' See, also, to the same effect, Heath v. State, 36 Ala. 273. Bishop says the better opinion is that third persons may be indicated for resisting a de facto officer. Bish.Crim.Law, (8th Ed.) § 464.' Subsequently, on the same page, the court continued: 'These authorities show that Horne, and, indeed, Jackson, had no right to resist the defendant when in the performance of the legitimate duties of a constable, and would...