10 Mo. App. 24 | Mo. Ct. App. | 1881
delivered the opinion of the court.
The petitioner is restrained of his liberty under a sentence, by the Court of Criminal Correction, of imprisonment in the city work-house for the term of one year, for the crime of petit larceny. He claims his release on the ground that
The proceedings were commenced by an information, so called, which was not signed or filed by any public officer, but was signed and sworn to by a private citizen.
Our State Constitution declares that “ no person shall, for felony, be proceeded against criminally otherwise than by indictment; * * * in all other cases, offences shall be prosecuted criminally by indictment or information, as concurrent remedies.” Art. II., sect. 12. It is contended that no mere affidavit, complaint, or other paper lodged by a private person, and not signed or given by some public officer lawfully authorized thereto, can be an information within the meaning of this constitutional provision.
The apparent authority for the paper here objected to may be found in the act of 1869 amendatory of the act establishing the St. Louis Court of Criminal Correction. Sess. Acts 1869, p. 197, sect. 19 ; Rev. Stats. 1514, sect. 19. After requiring that misdemeanors shall be presented to that court by information, the act provides : ‘ ‘An information in any such case may be lodged by the prosecuting attorney for said court, or by said assistant prosecuting attorney, or by any other person.” Since the adoption of that law, several informations found under its authority and lodged by private persons have had the apparent sanction of our Supreme Court. The State v. Berlin, 42 Mo. 572; The State v. Marshall, 47 Mo. 379. But the decisions were rendered under the Constitution of 1865, and before the provision above quoted found a place in our organic law. The constitutional question here presented has never been decided by a court of appellate authority in Missouri.
In The State v. Boogher, 7 Mo. App. 573, this court sustained the information because, although lodged by a private person, it was approved and adopted by the prosecuting attorney. But the question whether, without such approval or adoption, it would have been sufficient under the Constitution, was not raised or considered in any way.
It is to be observed that this constitutional limitation is provided for the citizen’s protection against a frequency of baseless, malicious, or frivolous prosecutions. If any citizen, acting upon his own untutored impressions of what constitutes a crime, may set in motion the powerful machinery of the law against another, who, while possibly guilty of some infraction of the moral law, has yet done nothing to subject him to civil penalty, there is no knowing who may not be harassed with accusations which the courts, after vain exposures and expenditures, must quash for insufficiency. Public policy seems to demand, in the strongest possible terms, that the judgment of a competent law-officer shall always determine in the first instance the propriety of a prosecution upon any serious charge. As to felonies, the Constitution clearly intends that no man shall be subjected to the ignominy and peril of a public prosecution unless his guilt shall seem so probable that a grand jury will be willing to charge it against him upon their oath. All this is implied in the use of the word “indictment.” As to of-fences not felonies, it may be suggested that the provision concerning them is intended for nothing more than to dispense with the indictment. But the use of the expression “ concurrent remedies ” manifestly implies a restrictive reference to the information, as a known remedy, not less than to the indictment, each within its proper sphere. One or the other must be used in every case.
Between a presentment of this character and a mere complaint or affidavit tendered by a subject or citizen, speaking
We have no doubt that the constitutional restriction to the information, as an alternative with the indictment, in prosecutions for minor offences, was intended to import into our criminal jurisprudence all the cautionary implications against reckless or ill-advised accusations that attached to the information under the common law and early British statutes. It must come from the State in its sovereign capacity, through an officer or court authorized to speak iu that behalf. The Court of Criminal Correction being a creation of the General Assembly, it may well be that, as the statute now stands, there is no power conferred on that court to grant leave to a private person for the filing of an information. But this is a matter not pertinent to our present inquiry. It is at least certain, in our view, that the so-called information, filed by a private person, without leave from any source, and upon which the petitioner was arrested and tried, was void by the terms of the Constitution, notwithstanding the attempted legislative authorization in the act which established the court. The petitioner is, therefore, entitled to his discharge from an imprisonment which has no better warrant of law.
A point is raised for the petitioner as to the power of the Court of Criminal Correction to sentence a prisoner to the work-house for the offence of petit larceny. There is no
The demurrer filed on the part of the State against the present petition is overruled, and the writ will be issued accordingly.