Weaver v. Schaaf, 58671

Decision Date10 March 1975
Docket NumberNo. 58671,58671
Citation520 S.W.2d 58
PartiesCharles WEAVER, Jr., Relator, v. George E. SCHAAF, Judge, Division One (Criminal Assignment), Circuit Court of St. Louis County, Respondent.
CourtMissouri Supreme Court

Timothy A. Braun, Asst. Public Defender, Twenty-First Judicial Circuit, Clayton, for relator.

Gene McNary, Pros. Atty., John A. Newton, Asst. Pros. Atty., Clayton, for respondent.

SEILER, Judge.

This is an original proceeding in prohibition, involving a double jeopardy question. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 S.Ed.2d 435 (1970) held that a municipal ordinance conviction bars a subsequent state prosecution for the same offense. The state seeks to avoid this doctrine on the ground that the municipal conviction in this case was allegedly procured by collusion.

Petitioner, defendant in the felony case pending before respondent, seeks to prohibit any further proceeding therein. We issued our provisional rule, which we now make absolute.

The facts come from a hearing on petitioner's motion to dismiss the state charge, together with the exhibits there introduced, and from the petition for prohibition, the answer, and return to the preliminary writ. Both the municipal charge (city of Bridgeton) and the state charge (St. Louis County) grow out of petitioner's driving a motor vehicle on April 19, 1973 along a public highway, Fee Fee Road, in Bridgeton, St. Louis County, while in an intoxicated condition. There is no disagreement that the prosecutions are for the same act or transaction. Petitioner, while intoxicated, drove across the center line and sideswiped an oncoming car containing three persons.

Petitioner was arrested at the scene by Officer Ennis of the Bridgeton police department. Ennis promptly made out and signed a complaint against petitioner for violation of the bridgeton ordinance prohibiting driving while intoxicated. This took place late in the afternoon of April 19 and Ennis, as was the usual practice, left the complaint for filing with the city clerk, whose customary routine was to place her signature attesting verification of such complaints the following morning. Although the court clerk testified that the complaint reached her desk on April 20, was filed and put in the court file by her, she evidently failed to affix her own signature, an omission corrected several months later as related below. The complaint was given No. 73--1497 and docketed on April 20.

Later in the evening of April 19, 1973, a St. Louis County magistrate who had released defendant on probation following a guilty plea to an earlier state driving while intoxicated charge instructed the Bridgeton police to produce defendant and the three witnesses before the magistrate the following morning for a probation revocation hearing. On April 20, 1973, after a hearing, the magistrate revoked petitioner's probation and sentenced him to serve the 90 days in jail to which petitioner had earlier been sentenced.

On June 18, 1973, at the instigation of the above mentioned magistrate, the county prosecutor's office was informed of the Bridgeton case. On or about June 21, 1973, petitioner, having received credit for good time served, completed his jail sentence imposed upon the April 20 revocation of probation. On June 22, 1973, the state filed a complaint in the same magistrate court, charging defendant with driving while intoxicated on the same occasion as earlier charged in the Bridgeton complaint. On July 2, 1973 Timothy A. Braun, as counsel for defendant appeared in the Bridgeton municipal court and stated that defendant desired to plead guilty to the ordinance violation.

The municipal judge, however, announced he would have to disqualify because he was acting as defendant's attorney in a pending divorce case. Petitioner's preliminary on the state charge was held July 27, 1973 and he was bound over. On August 1, 1973, the state filed on information in circuit court charging defendant with driving while intoxicated at the same time and place as charged in the Bridgeton complaint. On August 3, 1973, petitioner's counsel wrote the municipal judge, asking for a setting, informed the court of the pending felony charge, and stated his hope the matter could be resolved promptly as 'it would relieve Mr. Weaver of the felony charge now pending against him.' On August 6, 1973, defendant and counsel again appeared in municipal court and expressed a desire to plead guilty to the ordinance violation. On this date the municipal judge disqualified himself and set the case for a plea before an alternate judge for August 20. Under the Bridgeton charter, the municipal judge has authority to designate someone to act in his place, but there was difficulty in locating someone locally to serve, so the judge requested this court for an order and on November 27, 1973, we appointed Hon. Gene Pepka, who was municipal judge of Brentwood, to act in petitioner's case. In the meantime, the state case had been continued a number of times On November 29, defendant and his attorney, the Bridgeton prosecutor Thomas Howe, and the alterante judge, Judge Pepka, were present in municipal court. November 29 was selected because it was the only date all parties were available. All were aware of the felony charge pending in circuit court. Defendant waived his right to confront and cross-examine witnesses against him and his right to present evidence in his own behalf. He stipulated to the police report as a true version of what the city's witnesses would testify to. The court reviewed the police report and the written statements of the three witnesses and found defendant guilty of driving while intoxicated on April 19, 1973 in violation of the Bridgeton ordinance. The court then, on the recommendation of the city prosecutor, sentenced the defendant to six months in jail, credited him with 38 days, 1 suspended the execution of the remaining jail time, placed him on probation for one year and entered judgment accordingly. 2

in circuit court. The reasons for the continuances do not appear but it is not contended that they were at the request of defendant.

Fran Carpini, an assistant prosecuting attorney in St. Louis County, heard about the November 29th trial and on December 5 she went to the Bridgeton court and inspected the file. She discovered that no information had been filed and that the complaint, although signed by Officer Ennis, was unverified. She spoke with the Bridgeton prosecutor about the possibility that defendant would attack the case in circuit court on the ground of double jeopardy, but told Mr. Howe she thought the conviction could be set aside on the ground that no information had been filed on the charge in municipal court. She asked Mr. Howe not to file an information, but he said he did not know what he would do.

Petitioner's counsel became aware of these developments, contacted Judge Pepka and prosecutor Howe and suggested that the case be heard again. Howe testified that 'to obviate any question about it', it was decided to do it over.

On December 11, the complaint signed by Officer Ennis was verified by the clerk and an information was filed by Mr. Howe. On December 17 there was a second trial. The same parties were present, and the same explanation of defendant's rights and stipulations were made. Defendant was again found guilty and the same sentence was imposed as at the November 29 trial. Howe testified that the December 17th date was selected as being convenient; that he knew Bridgeton had jurisdiction originally and could make a case; that he knew of no law that required him to drop a prosecution because an assistant prosecutor asked him to do so; that defendant was in jail from April 20 to around June 20 on his probation revocation and then an additional 38 days on the state charge before he made bond.

The next day, December 18, defendant filed a motion in circuit court seeking dismissal of the felony charges because defendant had already been tried and convicted for the same offense in Bridgeton municipal court. The respondent, Judge Schaaf, heard evidence on the motion on that day and also on December 27, when he overruled the motion.

Mr. Pepka, the special judge, was subpoenaed to appear at the hearing on the double jeopardy motion. Upon receiving the subpoena on December 14, he called Miss Carpini and asked her the purpose of the December 18 hearing, expressing his displeasure at being required to attend as he had a trial set for that day and witnesses arrangements to continue 'all those make arrangements to continue 'all those things.' Miss Carpini testified that Mr. Pepka also stated, 'There damn well will be double jeopardy by Tuesday' (the day of the hearing). Mr. Pepka testified he did not recall making that statement.

We first remark that Waller v. Florida, supra, sets forth the controlling principles of former jeopardy with respect to the prosecution and conviction of a defendant in municipal court followed by prosecution for the same offense in state court. In Waller, the defendant was one of a number of persons who removed a canvas mural from the city hall of St. Petersburg. He was convicted in municipal court for violating two city ordinances prohibiting destruction of city property and disorderly breach of the peace. Thereafter, on the basis of the same facts, defendant was convicted of grand larceny in a state court. The Supreme Court vacated the felony conviction on the ground that the 'dual sovereignty' theory was an anachronism when applied to states and their municipalities; the judicial power to try the defendant on the first charges in municipal court sprang from the same organic law which created the state court of general jurisdiction. The defendant's plea of former jeopardy in municipal court was good as against subsequent prosecution for the same offense in state court. See discussion of the Waller case in Kansas City v. Henderson, 468 S.W.2d 48, 50 (Mo.1971)...

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11 cases
  • Macke Laundry Service Ltd. Partnership v. Jetz Service Co., Inc.
    • United States
    • Court of Appeal of Missouri (US)
    • 27 Agosto 1996
    ...of the term "collusion" is "a secret concert of action between two or more for the promotion of some fraudulent purpose." Weaver v. Schaaf, 520 S.W.2d 58, 66 (Mo. banc 1975) (quoting W. E. Bowen Improvement Co. v. Van Hafften, 209 Mo.App. 629, 238 S.W. 147, 149 (1922)). Collusion is also de......
  • State v. Cody
    • United States
    • United States State Supreme Court of Missouri
    • 14 Julio 1975
    ...S.W.2d 314 (Mo.1973). The claim of double jeopardy, however, '. . . is an assertion of a constitutional grant of immunity', Weaver v. Schaaf, 520 S.W.2d 58, 68 (Mo. banc 1975), quoting with approval from McCabe v. Bronx County Court, 24 Misc.2d 472, 199 N.Y.S.2d 241, 245--6 (1960). In Robin......
  • In re Machinery, Inc.
    • United States
    • United States Bankruptcy Courts. Eighth Circuit. U.S. Bankruptcy Court — Eastern District of Missouri
    • 25 Abril 2006
    ...that the purpose of the concerted action be illegal, fraudulent or otherwise wrongful towards the injured third-party. Weaver v. Schaaf 520 S.W.2d 58, 66 (Mo. 1975); Macke v. Laundry Serv. v. Jetz Serv. Co., 931 S.W.2d 166, 179 n. 6 (Mo.Ct. App.1996). Missouri law additionally requires that......
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    • Court of Appeal of Missouri (US)
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    ...765 (Mo. banc 1968). However, prohibition is a proper remedy to prevent a court from acting in excess of its jurisdiction. Weaver v. Schaaf, 520 S.W.2d 58 (Mo.banc 1975). In Weaver v. Schaaf relator brought a writ of prohibition to bar the trial court from trying him for driving while intox......
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