State v. Luman

66 Mo. App. 472 | Mo. Ct. App. | 1896

Ellison, J.

This prosecution is by information,, by the prosecuting attorney of Barton county, based on the affidavit of a private person. The affidavit, perhaps being deemed insufficient, was made more formal and complete by amendment, wherein the affiant, instead of swearing outright to the truth of the matters-charged, changed it so as to read that he “states to his best knowledge, information, and belief, that on or about,” etc. The circuit court sustained a motion to quash on the ground that the amended affidavit was-insufficient in such form. The statute authorizes any private person to make an affidavit, who “has actual knowledge that any offense has been committed.” Sec. 4329, Revised Statutes, 1889. Under this statute, we must hold that the affidavit, as amended, was not sufficient. State v. Davidson, 46 Mo. App. 9. If not sufficient, we must further hold that the information which is based thereon must fall with it. State v. Cornell, 45 Mo. App. 94.

Referring to the suggestion of appellant’s counsel, we will state, as was explained in State v. White, 55 Mo. App. 356, 361, that while the prosecuting attorney may file an information without an affidavit by himself, or any other person (State v. Ransberger, 42 Mo. App. 466; s. c., 106 Mo. 135); yet he may not, for many obvious reasons, be willing to do so, and he may elect to base his information on the affidavit of a private person. When he does so elect, such affidavit will be taken to be the basis for the prosecution and it must be sufficient under the law to sustain an information; and if it is not, the information itself will be quashed, for the plain reason that the affidavit upon which the prosecuting attorney has chosen to base it, is insufficient.

We have been cited by counsel for the state to some cases which hold that an affidavit on information and belief is proper. Principal among those cases is that of State v. Bennett, 102 Mo. 369. But that case was based on a statute different from the one now before us. The statute in that case is a special statute, applying to the court of criminal correction, in St. Louis. It is there provided that in an affidavit by a private person, “be shall swear to the same to the effect that he believes it to be true.” Sec. 19, page 2155, R. S. 1889. The affidavit there was based on “knowledge and belief,” and it was held to be proper. We have already seen that the statute we are now considering is altogether different, in that it requires the affidavit to be made by some person who “has actual knowledge that any offense has been committed.” T.he case of State v. Hayward, 83 Mo. 299, in its reasoning is directly in point on the question here. The cases Ex parte Olden, 37 Mo. App. 121, and State v. Sweeny, 56 Mo. App. 409, are not based on affidavits like the one involved here. In the latter ease the information seems to have been based on the act of the prosecuting attorney, though an affidavit is mentioned also, yet it does not appear in the case.

The foregoing leads to an approval of the action of the trial court and the judgment is, therefore, affirmed.

All concur.