State v. Velas

• Citation: 537 S.W.2d 881
• Decision Date: 03 June 1976
• Docket Number: No. 10066,10066
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Joseph VELAS, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 881

537 S.W.2d 881

STATE of Missouri, Plaintiff-Respondent, v. Joseph VELAS, Defendant-Appellant.

No. 10066.

Missouri Court of Appeals, Springfield District.

June 3, 1976.

Wayne K. Rieschel, Pros. Atty., Buffalo, for plaintiff-respondent.

J. Douglas Cassity, Greene, Cassity, Ferguson, Carnahan & Freeman, Springfield, for defendant-appellant.

Before STONE, P.J., and HOGAN and TITUS, JJ.

TITUS, Judge.

The two-count information charged defendant with resisting arrest by the sheriff (§ 557.210, V. A.M.S.) ¹ and disturbing the peace of the county assessor. § 562.240, V. A.M.S. ² A jury found him innocent of peace disturbance but guilty of resisting arrest and fixed his punishment at a fine of $15.

On the day in question, defendant paid one of many visits to the assessor in the latter's office at the courthouse in Dallas County. The purpose of the visit, as with all others, was to express umbrage over a $2.43 tax levied because of defendant's ownership of a $50 'unbroke' horse. In the light most favorable to the verdict (State v. Patterson, 534 S.W.2d 847, 850(5) (Mo.App.1976)), this is what happened: Defendant 'was real mad' when he entered the assessor's office. 'He was loud (and) just kept getting louder and louder' in proclaiming 'he had a horse on the assessment list, and he didn't aim to pay the taxes on it.' The sheriff, in his office 'two doors' away, and the janitor in his courthouse office, variously heard 'quite a disturbance hollering and cussing' emanating from the assessor's office. Defendant ignored the assessor's repeated warnings that the sheriff would be beckoned if departure was not posthaste and raised his cane to emphasize 'I ain't going' before the assessor left to summon the sheriff's aid to effect defendant's eviction. Responding to the call, and accompanied by the janitor and the assessor, the sheriff entered the assessor's office. The janitor recalled the defendant was 'in there swinging a cane' exclaiming, 'This S.O.B. is trying to kick me out of this office.' Putting his arm around defendant's shoulder the sheriff entreated, 'Joe, come on, let's get out of here. Just cool it.' In response, defendant shoved the sheriff 'backwards, shoved me loose, and said 'I'm not going to go anywhere. " Thereupon the sheriff enounced, 'Joe, you are under arrest for disturbing the peace.' When defendant started to strike the sheriff with his cane, the sheriff slapped defendant 'a pretty good lick . . . with my open hand.' Defendant 'went backwards against the wall . . . and set down (on the floor) and (the plaintiff) said 'Joe, get up and come on. Let's go.' And he said he wasn't getting up. So I reach down and got him by his shirt collar and the arm, and I got him up. I started out the room with him, and as he got to the door . . . he grabbed the door, both hands, and wasn't going to go through it. And I had to get my hands under his arms, behind his neck, to get him on out of there.'

The points relied on by defendant in this appeal are: 'I. The verdict of the jury is inconsistent in its finding that appellant did not disturb the peace, but did resist arrest. A. The arrest of appellant was unlawful in that the arresting officer acted beyond the scope of his authority in making the arrest. B. A finding of guilt for resisting an unlawful arrest is incongruous and inconsistent. II. The court erred in allowing the prosecutor to amend the information in regard to resisting arrest in that the original information did not charge that (defendant) resisted arrest and that to amend said information to contain such a charge was error and was prejudicial to appellant. A. The original information did not constitute a valid charge of resisting arrest. B. The court erred in allowing the amendment of the information to include a charge of resisting arrest and to allow such amendment was prejudicial to appellant.'

These so-called points clearly violate the mandatory requirements of Civil Rule 84.04(d), V.A.M.R., which is made applicable to criminal cases by Criminal Rule 28.18, V.A.M.R. State v. Warren, 469 S.W.2d 662, 663 (Mo.App.1971). Point I does not undertake to say 'why' a verdict of not guilty for peace disturbance and a verdict of guilty for resisting arrest are inconsistent. Neither are we advised 'wherein' and 'why' the arrest was allegedly unlawful or 'wherein' or 'why' it is claimed the arresting officer acted beyond the scope of his authority in making the arrest. As to Point II, appellant-defendant does not seek to enlighten us as to 'wherein' and 'why' the original information did not charge or constitute a valid charge of resisting arrest or 'wherein' or 'why' permitting the amendment was prejudicial to him. Purported points in a brief which amount to nothing more than conclusions, abstractions of supposed facts and abstract statements of law preserve nothing for review on appeal. Kansas City v. Garza, 493 S.W.2d 659 (Mo.App.1973). Points relied on should precisely isolate the issues and facts relative thereto (State v. Dennison, 428 S.W.2d 573, 579(8) (Mo.1968)) for an appellate court owes no duty to resort to a search of the transcript on appeal or the argument portion of the brief to ascertain the meaning of points penned in abstract and conclusionary fashion. State v. Freeman, 489 S.W.2d 749, 752(2) (Mo.App.1973). Thus, at this juncture the appeal herein should be summarily dispatched. State v. Yearwood, 510 S.W.2d 43, 44 (Mo.App.1974). Nevertheless, and beyond the requirements of duty, we have gone to the transcript and argument part of the defendant's brief to enable us to consider defendant's insufficient points on their merits.

Sheriffs, by virtue of § 57.110, V.A.M.S., are conservators of the peace and possess the right and duty to make warrantless arrests for disturbances of the peace when that misdemeanor is committed in their presence (State v. Caffey, 436 S.W.2d 1, 2(1) (Mo.1969)), and the offense is committed in the presence or view of the sheriff when he hears the disturbance, proceeds to the scene and the offense is continuing upon arrival. State v. Peters, 242 S.W. 894, 896(2) (Mo.1922). A sheriff may lawfully arrest a person for disturbance of the peace (a misdemeanor) if the actions committed in his presence and the circumstances observed by him would lead a reasonable person to believe he was witnessing...