68 Mo. App. 415 | Mo. Ct. App. | 1897
This case may be briefly and succinctly stated in thiswise: One Duren filed a complaint before a justice of the peace charging the defendant with an assault. A warrant was thereupon issued and the defendant was arrested and brought before the justice. On account of the absence of the prosecuting attorney, the defendant was required to enter into a recognizance to appear before the justice at a later day, on which day both the prosecuting attorney and the
“Sam O. Major, prosecuting attorney within and for the county of Howard, in the state of Missouri, informs the justice that Gr. C. Hocker, on the first day of August, 1895, at the said county of Howard, did then and there, unlawfully and willfully, disturb the peace of one Larkin Duren, by then and there cursing and swearing and by loud and unusual noises and by loud, offensive, and indecent conversation and by threatening, quarreling, and fighting, against the peace and dignity of the state. “Sam C. Major, Prosecuting Attorney.”
There was a trial before the justice, which resulted in the conviction of the defendant, who prosecuted an appeal to the circuit court, where the information was quashed, the grounds therefor being that, first, it did not set forth any specific offense, but charged a number of separate offenses in one count; second, that no foundation was laid by complainant for the information. The state appealed.
It has been ruled that if the complaint be insufficient, that does not, of itself, vitiate the information. If the complaint be set aside, the information, if sufficient within itself, will not be quashed, or the accused discharged (State v.Hart, 47 Mo. App. 653), unless the information be based on the affidavit.
An information need not be based on the complaint of a third person, but may be made on the information and belief of the prosecuting attorney. R. S., sec. 4329. If the accused be arrested on the complaint of a third person, the prosecuting attorney may, if he deems it advisable, base his information on the complaint, or he may ignore it and file an information on his own information and belief. If the accused has committed an offense and has been arrested on a complaint which does not properly describe the offense, or does not describe an offense at all, the law gives him no right to demand a trial for the offense described in the complaint, and especially so where the prosecuting attorney files an independent information correctly charging him with the offense that that officer may
There is nothing in either ground of the motion justifying the action of the court in quashing the information.
The only question is whether this was a sufficient compliance with section 4362, Revised Statutes, which provides that any person convicted of a misdemeanor before a justice of the peace, may have an appeal, if he shall immediately after the judgment is rendered, file an affidavit stating, etc. The affidavit, which was delivered along with the other papers in the case to the clerk of the circuit court, had no file mark on it, but since it seems to have been actually delivered to the justice whose duty it was to file it, this was a filing for all the purposes of the appeal. Anderson’s Dict. of Law, 459; Collin v. Kamman, 55 Mo. App. loc. cit. 466; Grubbs v. Cones, 57 Mo. 83. It seems to us that it
It is our opinion that the granting of the appeal was sufficiently regular to confer jurisdiction. The circuit court, therefore, did not err in overruling the motion to dismiss the appeal. The judgment, however, on account of the error previously noticed, will be reversed and cause remanded.