State v. O'Connor

58 Mo. App. 457 | Mo. Ct. App. | 1894

Bond, J.

Defendant was arrested upon a warrant issued by the clerk of the circuit court, based upon an information by. the prosecuting attorney of Madison county, filed in the office of the clerk of the circuit court of said county and charging the defendant with being a merchant and unlawfully selling certain, fermented liquor in less quantities than five gallons,, to wit, one case of beer, without a dramshop keeper’s', license or any other authority to sell the same. The information was filed by the said prosecuting attorney-under his oath of office, and duly signed by him and indorsed with the names of witnesses, but not otherwise verified.

The defendant pleaded not guilty, whereupon the cause came on for trial by the court, both parties having waived a jury. There was evidence tending to-sustain the charge contained in the information. The-court found the defendant guilty, and assessed his. punishment at $100. Prom this judgment, after the-overruling of his motions for a new trial and in arrest of judgment, defendant took an appeal.

The first point urged by appellant for a reversal of' this cause is that the information, although signed by the prosecuting attorney, was not verified by his oath, or that of some person competent to testify, and therefore his motion in arrest of judgment should have been sustained!

This assignment of error is well taken. The-statute expressly provides, in reference to informationsfiled in the circuit court during term or with the clerk in vacation, that they shall be signed by the prosecuting attorney, and be verified by his oath or by the oath, of some person competent to testify. R. S. 1889, see. 4057. It is true that no such provision is contained in the chapter relating to proceedings before justices of the peace. R. S. 1889, sec. 4328, et seq. Nor is it. necessary, in case of an information filed before a. justice of the peace, that it should be sworn to by the-prosecuting attorney or some other person. In such cases he acts'officially under his oath of office. State v. Ransberger, 106 Mo. 145.

In the case at bar the information was filed in the-office of the clerk of the circuit court. It was, therefore, within the strict letter of the mandatory statute-governing proceedings upon information in that court., and, not being verified as required by that statute, it-was fatally defective. R. S. 1889, sec. 4057, supra. The court should have sustained the motion in arrest.

We are, however, satisfied from an examination of the testimony preserved in the record that there is a probability of the conviction of the defendant under a proper information. We therefore reverse the judgment, and remand the cause with directions to the trial court to sustain the defendant’s motion in arrest of judgment, and then proceed under the provisions of section 4275 of the Revised Statutes of 1889. State v. Cassity, 49 Mo. App. 300.

It is so ordered.

Judge Rombauer concurs. JudgeBiggs is absent.