State v. Davidson

46 Mo. App. 9 | Mo. Ct. App. | 1891

Gill, J.

Defendants were charged before a justice of the peace for unlawfully disturbing the peace of the prosecuting witness and others. The information of the prosecuting attorney was based on the affidavit of R. P. Moore, filed with the justice, wherein the, offense is charged “to the best knowledge, belief and information” of the affiant. The defendants were convicted in a trial in the justice’s court. Defendants thereupon appealed to the circuit court, where, on a motion filed by said defendants, the information was quashed, and the state appealed.

Whatever may be said as to the legality of the information proper (as filed by the prosecuting attorney ), it is clear that the affidavit, on which the same was based, did not comply with the law. Tbe statute as now amended, section 4329, Revised Statutes, 1889, expressly provides that such affidavit — furnishing the basis for the information by the state’s attorney — must be on the actual knowledge of the affiant. Here the affidavit was “to the best knowledge, belief and information” of the affiant, and, therefore, 'insufficient. State v. Shaw, 26 Mo. App. 383. And, as held by us in State v. Cornell ( decided at this term ), the vice in the affidavit will not be cured by the perfect allegations of the information based on such affidavit.

We are of the opinion, then, that the motion to quash the information was properly sustained, and affirm the judgment.