State v. Hunt

• Decision Date: 04 December 1961
• Docket Number: No. 23423,23423
• Citation: 352 S.W.2d 57
• Parties: STATE of Missouri, Plaintiff-Respondent, v. William Birch HUNT, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 57

352 S.W.2d 57

STATE of Missouri, Plaintiff-Respondent, v. William Birch HUNT, Defendant-Appellant.

No. 23423.

Kansas City Court of Appeals, Missouri.

Dec. 4, 1961.

Warren D. Welliver, Columbia, for appellant.

Scott O. Wright, Brown, Wright & Willbrand, Columbia, for respondent.

SPERRY, Commissioner.

This is the second appeal in this cause. State v. Hunt, Mo.App., 335 S.W.2d 506.

Defendant is charged with the commission of a misdemeanor, in that he operated his automobile along and over a highway at an excessive speed. Trial to a jury resulted in conviction and the assessment of a fine of $75.00.

The alleged offense took place at about 8:30 p. m., January 19, 1958, on highway 40, at a point one half mile west of the city limits of Columbia, Missouri. Defendant lives some four miles west of Columbia and had returned to his home a few minutes prior to this event. He has a drug store in Columbia and, learning that a salesman was there to see him on business, he started to drive there. As he was driving out of his driveway Mr. Davis, another salesman, drove in to see him. He told Davis to meet him at his store, and proceeded to the highway, thence east toward Columbia. Mr. Davis testified that he followed defendant, at a distance of one half block, keeping his automobile in his headlights.

The highway, some distance west of Gruber's filling station, runs down grade to a level strip where the station is located, then up grade some 1200 feet or more to a level 'shelf'. The highway, at that time, did not have four lanes.

State highway patrol officers had stationed an automobile at Gruber's station, equipped with radar, by which means it was sought to ascertain the speed of passing vehicles. Trooper Burgess was in charge of the radar car. On the 'shelf', headed west, on the north shoulder, Trooper Grazier posted his patrol car, equipped with red lights. In that car was also an off-duty Columbia policeman, Mr. Smith, who, at the time of the trial, was a patrolman.

Mr. Davis and defendant testified to the effect that, as they travelled eastward, down the incline toward Gruber's, an automobile, which they could not describe, passed them going east. Defendant stated that he was proceeding at a speed of 60-65 miles per hour at all times. Davis said that he was driving at about that speed and stayed behind plaintiff a uniform distance until defendant's car was stopped by Trooper Grazier.

Burgess qualified as an experienced and trained radar man. He testified to the effect that a brown station wagon passed his station at about 8:30 p. m., headed east, at a speed of 76 miles per hour as was indicated by the radar device; that he radioed to Grazier those facts, including the fact that the vehicle carried a license plate, the first three numbers of which were '211----'. (Which corresponded to defendant's plate.) To this testimony there was no objection.

Smith testified that the message came at a time when he was inside the patrol car and Grazier was out on the shoulder checking a Cadillac car that had just been stopped and which was parked on the south shoulder of the highway; that he shouted the message to Grazier, who signaled defendant to stop. Grazier stated that, as defendant's car approached, he watched it; that its speed was more than 70 miles per hour; that defendant parked on the south shoulder, in front of the Cadillac; and that he gave defendant a summons.

Defendant's first contention is that the court erred in not quashing the information and in holding that there was sufficient competent evidence to sustain the verdict. No reason is advanced for quashing the information and that point will not be here discussed. However, it is urged that an officer, in Missouri, has no legal right to arrest without a warrant for the commission of a misdemeanor, on the request or upon information of another, or merely because he believes that a misdemeanor was committed. 6 C.J.S. Arrest Sec. 6; State v. Peters (Mo.Sup.), 242 S.W. 894, 896.

While defendant does not seriously challenge the propriety of the proper use of radar in evidence in this kind of case (24 Mo.Law Rev. 196, 210; 49 A.L.R. 476), he does not concede that it was admissible here. It is not necessary to decide that question here, because Trooper Grazier stated that he saw defendant operating his automobile at a speed in excess of 70 miles per hour, which was a misdemeanor. The jury was the judge of the weight and credibility to be given to Grazier's testimony. The fact that his attention had been directed to defendant's automobile by Burgess is of no consequence since the offense continued in his presence. State v. Peters, supra.

It is next urged that the court erred in admitting evidence of defendant's prior conviction of an offense occurring subsequently to the one for which he was then being tried. The point is without merit. Section 491.050 RSMo 1949, V.A.M.S.; State v. Cox (Mo.Sup.), 333 S.W.2d 25, 29.

Defendant further urges error in that the court refused to grant a mistrial based on the following: defendant had previously admitted that, at the time he was arrested on this latter occasion, there was a young woman-employee of his in the car, going to attend an examination to be conducted by the pharmacy board of which defendan...