27 Mo. App. 628 | Mo. Ct. App. | 1887
This is a proceeding begun by the prosecuting attorney filing an information against defendant, for selling liquor without license.
Defendant filed a motion to quash the information, which being overruled, and his conviction following, he appeals to this court.
I. 'The first point presented is that the information was filed during term time, with the clerk, and not in the court, and, therefore, was not a legal complaint against defendant, under section 1762, Revised Statutes. The circuit court of Cole county convened December 7, 1885, and, on December 23, adjourned to January 11, 1886. The information was filed January 4, 1886. There was no entry made of record of the filing of this information, and we have, in the transcript before us, simply the usual entry made by clerks of matters transpiring in vacation. Defendant contends that it was not “in vacation of the court,” as contemplated by the statute (supra), when this information was filed, and hence was not filed in any place contemplated by law.
We are told by defendant’s counsel that the court below considered the information was filed in vacation, by reason of section 3126, Revised Statutes, as amended in Laws of 1885, page 191, wherein it is provided that, “whenever any act is authorized to be done by, or any power given to, a court or judge thereof, in vacation, or whenever any act is authorized to be done by, or any power given to, a clerk of any court, in vacation, the
Under the authority of this portion of section 3126 (if, indeed, such authority was needed), we will construe sections 1762 and 1769 together, and in that way ascertain if the words, “in vacation,” in section 1762, mean a mere adjournment of the court for more than one day. By section 1769, it is provided that, upon the filing of the information authorized by section 1762, a warrant shall issue; that ‘ ‘ if such warrant be issued in term, it shall be made returnable forthwith; but if issued in vacation, it shall be made returnable to the next term thereafter, and if defendant be arrested during the term he shall be brought into court; but if he be arrested in vacation of the court, the officer” shall bail him, etc. It would appear to be clear from the terms of this section that the vacation spoken of has reference to the vacation between courts — between a term and the “next term thereafter.”
It is out of the question to suppose the legislature meant one thing by the term, “in vacation,” in section 1762, and a different thing, by the same term, relative to the same matter, in section 1769. It being, therefore, in term, when this information was filed, notwithstanding the adjournment of the court for more than one day, the question remains, was the information filed with the clerk, or with the court ?
It is assumed by counsel that, since there is no record entry of the filing, and since the clerk has made the recital in the.transcript before us, that the information “was filed in the office of the clerk of the circuit court, in and for the county of Cole,” etc., the information was filed with the clerk, as distinguished from a filing with the
II. It is next insisted that the information is not sworn to, the point being that the jurat is signed, “ W. H. Lusk, circuit court, by C. W. Wallendorf, I). C.” Since the record throughout shows Lusk to have been the clerk, and Wallendorf the deputy, I think the clerical error in writing circuit court, instead of circuit clerk, ought not to invalidate the affidavit. State v. Downing, 22 Mo. App. 504.
III. The next objection is, that, as it “ was admitted by the prosecuting attorney that he had filed the information on statements made to him by witnesses on the back of the indictment, but that the statements of the witnesses were not made under oath,” the information is invalid. If I gather the reasons given in support of this objection, they are that the prosecuting attorney became the prosecuting witness, and his name should have been endorsed on the back of the information, as required by sections 1762 and 1802, Revised Statutes. In the first place, there was no necessity for the prosecuting attorney to endorse the information as a prosecuting witness ; and, in the second, if there was, his failing to do so would not have the effect of invalidating the informa
Other objections urged are covered by what has already been said.
The judgment is affirmed.