State v. McNail, 8310

• Decision Date: 05 March 1965
• Docket Number: No. 8310,8310
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Joe Peter McNAIL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 214

389 S.W.2d 214

STATE of Missouri, Plaintiff-Respondent, v. Joe Peter McNAIL, Defendant-Appellant.

No. 8310.

Springfield Court of Appeals, Missouri.

March 5, 1965.

Rehearing Denied March 27, 1965.

Application to Transfer Denied May 10, 1965.

Robert B. Baker, Ellington, for defendant-appellant.

William H. Bruce, Jr., Prosecuting Atty., Centerville, for plaintiff-respondent.

HOGAN, Judge.

The defendant was convicted of the offense of careless and reckless driving, as defined by Section 304.010, pars. 1 and 5, ¹ and his punishment has been assessed at a fine of $15.00. He appeals. Neither the defendant nor the State has filed a brief, and it is therefore our duty to review the cause upon the assignments of error properly preserved in the motion for new trial and to examine the essential portions of the record listed in Rule 28.08. Rules 27.20, 28.02 and 28.08; State v. Brewer Mo., 338 S.W.2d 863, 865-866; State v. Belleville, Mo.App., 362 S.W.2d 77, 78.

On July 14, 1962, at 11:30 P.M., the defendant was observed driving west on Highway 21 in Reynolds County, Missouri, in a 1961 Ford pickup truck with a defective taillight. Trooper L. L. Meyer, a member of the State Highway Patrol, started to follow the truck and 'noticed it was weaving back and forth across the highway.' After following the defendant's vehicle for a little more than one-half mile, Trooper Meyer 'put on the red light,' attempting to stop the defendant. Two passenger riding in the bed of the truck beat on the cab of the pickup in order to signal the defendant, and, after traveling some 200 yards further west, the defendant finally stopped. Upon interrogating the defendant, the trooper 'smelled the odor of alcohol about his person and further * * * his speech was impaired and his eyes were glassy and bloodshot and his ability to walk was also impaired.' The defendant was given a Uniform Traffic Ticket and was incarcerated. He was later 'bonded out' and returned to his home.

On September 22, 1962, without the issuance of further process, the defendant appeared in the Magistrate Court of Reynolds County and entered a plea of not guilty. He submitted the cause to the court sitting without a jury and without, incidentally, offering any evidence in his own behalf. The Magistrate found the defendant guilty and assessed his punishment at a fine of $50.00. The defendant then appealed to the Circuit Court, and upon his application the venue was changed to the Circuit Court of Wayne County. Upon trial there on April 9, 1963, the jury was unable to agree, and a mistrial was declared. Subsequently, the cause was again submitted and this judgment of conviction resulted.

Viewing the evidence in a light most favorable to the result reached, State v. Selle, Mo., 367 S.W.2d 522, 527-528[12-16], it was shown on trial (in addition to the facts already recited) that, when arrested, the defendant was approaching the town of Lesterville, and that the highway in question was a two-lane bituminous highway running east and west. The usable width of the highway was not specifically shown, but Trooper Meyer testified that the north or westbound lane, in which the defendant was traveling, was unobstructed. There was no other traffic on the road, and the defendant was traveling at a relatively slow speed. The center or median line was obliterated in spots because a new mat had recently been laid, but the State's evidence was that the median line was clearly visible except for 'small patches.' As the defendant approached Lesterville, he drove over a 'blind hill' on the left side of the roadway at a place where his view of oncoming traffic was immediately obstructed, and Trooper Meyer estimated that in the .8 mile he followed the defendant, he observed the defendant's vehicle cross the center line to the south four or five times. As we have noted, when he was stopped the defendant presented the odor and appearance of one who had consumed alcoholic intoxicants, and he stated that he had drunk a 'couple of beers.' To a considerable extent, Trooper Meyer's testimony was corroborated by that of a Mr. Kenneth Pate, a conservation agent who had accompanied Trooper Meyer in his pursuant and arrest of the defendant.

The defendant vigorously denied that he had been weaving back and forth across the road, and stated that 'there was no white line there.' Mr. McNail's testimony was that, on the evening in question, he had visited his mother and had then gone to a tavern near Lesterville to discuss business with a Mr. Buck Jamison. He had remained at the tavern some two to two and one-half hours, visiting friends, and had consumed only two bottles of beer. The defendant believed that this prosecution was the result of a grudge borne by one of the peace officers who had participated in his arrest but who did not testify at the trial. He produced a number of witnesses who testified to his good character.

The defendant makes a number of assignments of error directed to the sufficiency of the informations filed. He complains that the Uniform Traffic Ticket was not verified and, in effect, asserts that since the Uniform Traffic Ticket charged no offense--and we have serious doubt that it did--no subsequent amendment to the information could validate that lack of formal charge. The difficulty with this argument lies in the assumption that the proceeding in Circuit Court was merely a continuation of the proceeding in Magistrate Court. Though for some purposes this may be true in a sense, still we think the validity of the conviction in Magistrate Court is not in issue here. Upon appeal to the Circuit Court in a misdemeanor prosecution, the cause is heard de novo, and irregularities in the Magistrate Court are immaterial. Rule 22.16; State v. Smith Mo.App., 264 S.W. 52, 53, aff'd 306 Mo. 451, 267 S.W. 869; State v. Sell, 61 Mo.App. 160, 161; State v. Gowing, 27 Mo.App. 389, 391; Kelley's Crim.Law. & Proc., Section 1212, page 1147 (4th ed., 1928). Since there was actually a trial de novo in this case, upon a new complaint and information filed, we consider that the sufficiency of the accusation made in Magistrate Court is of no consequence, if the information upon which the defendant was actually tried is itself sufficient to charge a crime.

The accusative part of the information filed by the State after the cause had been appealed and transferred upon change of venue, is that the defendant 'did then and there * * * drive and operate a motor vehicle [describing it] over and upon Highway No. 21, a public highway * * * in a careless and reckless manner, and in a manner so as to endanger the life and limb of other persons in that he failed to keep said motor vehicle as close to the right hand side of the road as practicable. * * *' The defendant maintains this information charged no offense whatever and was not subject to amendment.

Informations comparable to this one have been the subject of critical discussion. State v. Cook, Mo.App., 322 S.W.2d 596; State v. McCloud, Mo.App., 313 S.W.2d 177, 181-182; State v. Reynolds, Mo.App., 274 S.W.2d 514, 516. This criticism is based upon the general rule of criminal pleading that an information charging a statutory crime may be couched in the language of the statute, if the statute itself sets forth the constituent elements of the offense; but if the statute merely defines the crime in generic terms, then the constituent facts must be pleaded in enough detail to advise the defendant specifically what he must defend against. State v. Fenner, Mo., 358 S.W.2d 867, 869-870[4, 5]; State v. Tevis, Mo.App., 340 S.W.2d 415, 419[3, 4]; Anno., 115 A.L.R. 357 (1938). The offense of careless and imprudent driving is only very broadly defined by Section 304.010, par. 1, and an information charging that offense by reciting the bare language of the statute in negative form is generally held to be insufficient. State v. Tevis, supra, 340 S.W.2d at 419[3, 4]. We have the view, however, that the rule requiring pleading of the constituent circumstances in the information, where the statute denounces the offense only in generic terms, may easily be overstated when dealing with traffic offenses. The same strictness of pleading is not required in informations charging misdemeanors as in those charging felonies, State v. Lasswell, Mo.App., 311 S.W.2d 356, 357-358; the terms used in Section 304.010, par. 1, are 'neither technical nor mysterious,' State v. Florian, 355 Mo. 1169, 1174-1175, 200 S.W.2d 64, 66-67[1-3], and even a criminal pleading need not set forth the evidence by which the accusation will be supported. State v. Becker, 248 Mo. 555, 562, 154 S.W. 769, 771. The information first filed in the Circuit Court might easily have been more clearly and specifically drafted, but it does charge the defendant with having driven a specific automobile at a specific time and place in a careless and reckless manner by failing to drive to the right. The information does not merely allege the offense by reciting the bare words of the statute, but adds that the offense was committed by failing to keep on the proper side of the road or in the proper place. If the defendant had filed a motion for a bill of particulars, as permitted by Rule 24.03, it doubtless would have been proper to direct the filing of such a bill, but we consider the information sufficient as against a motion to dismiss. State v. Ball, Mo.App., 171 S.W.2d 787, 792; Ray v. State, 47 Ga.App. 22, 169 S.E. 538; Anno., supra, 115 A.L.R. at 361; cf. Hoover v. Denton, Mo., 335 S.W.2d 46, 48-49[4, 5].

The defendant next maintains that the State was...