State v. Brooks
| Decision Date | 05 February 1957 |
| Docket Number | No. 29648,29648 |
| Citation | 298 S.W.2d 511 |
| Parties | STATE of Missouri (Plaintiff), Respondent, v. Ted BROOKS (Defendant), Appellant. |
| Court | Missouri Court of Appeals |
Robert A. McIlrath, Flat River, for appellant.
Charles W. Medley, Prosecuting Atty., St. Francois County, Farmington, for respondent.
The defendant was found guilty of common assault, and his punishment fixed at a fine of $100 and thirty days in jail. He has appealed to this court.
The charge by information grew out of events which occurred on the night of August 31, 1955, in the City of Bonne Terre, St. Francois County, Missouri. On the day of, and preliminary to, the trial, defendant filed his motion to dismiss the information on the ground of former jeopardy. In connection with the motion the Prosecuting Attorney and counsel for defendant stipulated that an information had been filed against the defendant in the Magistrate Court of St. Francois County, Missouri, charging the defendant with peace disturbance on August 31, 1955, by 'then and there wilfully and unlawfully (by) causing a disturbance upon the streets of the City of Bonne Terre, Missouri by then and there making loud and unusual noises by offensive and indecent conversation by quarreling, threatening, challenging and by fighting', etc. The peace disturbance charge was tried before the Judge of the Magistrate Court of St. Francois County without a jury, and resulted in the defendant being acquitted. The Prosecuting Attorney and defendant's counsel further stipulated that the common assault charge grew out of the same episode or transaction which was the basis for the peace disturbance charge. Julian Bray was the acting night marshal of Bonne Terre, Missouri, on the night in question, and was the prosecuting witness in this case. He admitted having testified in the case tried in the Magistrate Court to substantially the same facts related by him in the instant case. It was upon this showing that defendant insisted that a trial for common assault would place him twice in jeopardy for the same offense of which he was formerly acquitted. Defendant kept the question alive throughout the trial, in his motion for new trial, and has briefed and presented the point in this court. In order to properly dispose of the contention, a further review of the fact is necessary.
At about 10:30 o'clock on the night of August 31, 1955, Mr. Bray was on duty, attired in 'full uniform', and wearing his badge. He observed defendant driving his automobile 'around the block' on several of the streets in Bonne Terre. The officer stopped the defendant, and 'I tried to tell him that he had a bad muffler'. Thereupon defendant cursed the officer, who directed the defendant to make a left turn and stop in front of the police car. According to Bray, defendant disregarded the command and turned his automobile to the right. This caused the officer to make a 'grab at him * * * to issue a summons to him'. At this stage of the affair defendant jumped out of his car, grabbed Bray with both hands, and then in the words of the officer, . Not only did the defendant strike the officer while he was lying on the ground, but he also took the officer's revolver away from him. Finally defendant removed the cartridges from the revolver, handed it back to Bray, and got in his car and left.
Defendant's version was that Bray stopped him as he was proceeding westwardly on one of the streets in Bonne Terre, informed defendant that he had a loud muffler on the car, and after requesting defendant to pull over to the curb, the officer made an unprovoked assault upon defendant by striking him upon the left side of his jaw. Defendant got out of his car, whereupon Bray took a 'swing at me again'. Thereupon Bray pulled his gun and the defendant proceeded to take it away from him. According to defendant, he told Bray 'to go over and sit on the corner by the shirt factory there and asked him what he meant by picking on me, and I took the shells out of the gun and then he started begging to me.'
It was shown by other witnesses that there were approximately six young men, companions of defendant, present during the affray.
The defendant contends that since the peace disturbance and the common assault charges grew out of the same set of facts and events, he has been again put in jeopardy for the same offense of which he was formerly acquitted. It is a well-established and ancient principle that an individual may not be twice placed in jeopardy for the same crime. This is prohibited by our Constitution, Article I, Section 19, V.A.M.S., as well as the common law. State v. Moore, 326 Mo. 1199, 33 S.W.2d 905, 906. This prohibition against a second jeopardy means not only that one may not be tried twice for the identical act or crime, but that the State cannot split up a single crime and prosecute it in parts or piecemeal. In other words a prosecution for any part of a single crime bars further prosecution based upon the whole or any part of the same offense. State v. Toombs, 326 Mo. 981, 34 S.W.2d 61; State v. Clark, 220 Mo.App. 1308, 289 S.W. 963; State v. Moore, supra, 33 S.W.2d 905, loc. cit. 906.
But peace disturbance and common assault are separate and distinct offenses. Sections 562.240 and 559.220 RSMo 1949, V.A.M.S. One does not necessarily emanate from the other. As far as the instant case is concerned, even though both prosecutions of defendant grew out of the same transaction, the record presented to us does not disclose that the State is attempting to prosecute the defendant in piecemeal for a single crime, for it appears that in the Magistrate Court the defendant was tried, not for disturbing the peace of Julian Bray, the individual, but for 'causing a disturbance upon the streets of Bonne Terre, Missouri'. The statute contemplates one may be guilty of disturbing the peace of any individual, or a family, or a neighborhood. Section 562.240, supra. While it is true that 'fighting', an element of the present case, was included in the peace disturbance charge, and evidence of peace disturbance may have been admissible in the instant case as part of the res gestae, nevertheless the proof essential to a conviction of common assault would not necessarily convict the defendant of 'causing a disturbance upon the streets of Bonne Terre, Missouri'. Therefore the two offenses were not merged into one although they grew out of the same transaction. State v. Chernick, Mo.Sup., 278 S.W.2d 741. Our Supreme Court has steadfastly refused to recognize the 'same transaction rule', which is the basis for defendant's argument that he has twice been put in jeopardy for the same offense, and has preferred to follow the separate or several offense doctrine, meaning 'that an offender is not to be exonerated from responsibility for his acts because his desires or passions persuade or impel him to commit two or more offenses during a transaction or occasion', State v. Moore, supra, 33 S.W.2d 905, loc. cit. 907. See, also, State v. Chernick, supra; State v. Bobbitt, 228 Mo. 252, 128 S.W. 953; State v. Temple, 194 Mo. 228, 92 S.W. 494; State v. Martin, 76 Mo. 337. It follows from what has been said that the plea of double jeopardy cannot be sustained.
The point is also made that the court erroneously permitted the State to cross-examine defendant on a matter not testified to in chief. On direct examination defendant denied that he had been driving around the block with a 'bad muffler', and insisted that when Bray stopped him he was en route to a junk yard in the city where he intended to pay a bill. He also stated that he had come from his girl friend's home just prior to the incident in question. On cross-examination the Prosecuting Attorney elicited from the defendant, testimony that he 'was up there in Bonne Terre with a gang of boys'. It is of this cross-examination that the defendant complains. While it is true that the defendant gave no testimony on direct examination with reference to a 'gang of boys', we have the opinion that under the circumstances the cross-examination was proper. The defendant...
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