State v. Pruett
61 Mo. App. 156
Mo. Ct. App.
1895
Check Treatment
Biggs, J.

The prosecuting attorney filed in the circuit court the following information against the defendant, to wit:

“Now, at this day, comеs W. D. Johnson, prosecuting attorney within and for Pulaski county, in the state aforesaid, and gives the court herein to *157be informеd and understand that James Pruett, at the county of Pulaski and state aforesaid, on the first day of June, 1893, did then and there willfully and maliciously and cruelly maim, wound, beat and torture to death eight pigs, of the value of $1 each, and of the ‍​‌‌​​‌​‌​​‌‌​​​​​​​‌​‌​​​‌​​‌​‌​‌​‌‌​​‌​‌​‌‌‌​‌​‍aggregate value of $8, the. same being the personal property of one J. P. Mitchell, by striking and beating the said eight pigs to death with roсks, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state.
“[Signed] W. D. Johnson,
“Prosecuting Attorney.”

The names of the witnesses for the state were indorsed on the back of the information.

The defendant filed а motion to quash the information, for the reasons that it was insufficient, both in form and substance; that it was not based on the personal knowledge of the prosecuting attorney, and that it was not verified by him or supported by the oath of any one. The court sustained _ the motion, and discharged the defendant. The state has appealed. "We will notice the оbjections to the information in the order above stated.

The information sufficiently charges an offense under the stаtute (R. S. 1889, section 3621). It substantially follows the language of the section, which is generally sufficient. The section reads: “Every person who shall willfully and maliciously or cruelly maim, wound, beat or torture any ‍​‌‌​​‌​‌​​‌‌​​​​​​​‌​‌​​​‌​​‌​‌​‌​‌‌​​‌​‌​‌‌‌​‌​‍horse, ox or other cattle, whether belonging to himself or another, shall be deemed guilty of a misdemeanor. ’ ’ The offense specified falls within the statute, as the term “cattle” designates all domestic quadrupeds collectively, and has been held to include horses, sheep and hogs. State v. Lawn, 80 Mo. 241. We, therefore, conclude that there is no merit in the defendant’s first objection.

*158There is likewise no merit in the second objection. When'the information is filed in the circuit court, the statute expressly authorizes it to be done on the information and belief of the prosecuting attorney. (R. S. 1889, section 4057.) Besides, the supreme court has decided that all informations may be preferred by prosecuting attorneys upon their information and belief, even though the statute should ‍​‌‌​​‌​‌​​‌‌​​​​​​​‌​‌​​​‌​​‌​‌​‌​‌‌​​‌​‌​‌‌‌​‌​‍prescribe thаt it should be done on their knowledge. State v. Ransberger, 106 Mo. 135; s. c., 42 Mo. App. 466.

There ought not to be any room for controversy or doubt about the third objection. The statute expressly provides that informations filed in courts of record “shall be signed by the prosecuting attorney and be verifiеd by his oath or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person, which shall be filed with the information,” etc. R. S. 1889, sec. 4057. The information here is not verified by the oath of any one. Neither is it supported by the affidavit of any one, and there ought not to be any question about its insufficiency. But the adjudicated eases do leave the matter in some doubt.

The supreme court in the case of State v. Kelm, 79 Mo. 515, decided that the term “information,” as used in the cоnstitution of the state (article 2, section 12), is to be understood as a common law information, that is, such as is presented by the attorney general or solicitor general of England. The court also decided that, in the use of the process, the same powers were possessed by the prosecuting attorneys of the various counties of the statе, as are exercised by the attorney general or solicitor general of England.

Judge Ellison, spa: iking for the ‍​‌‌​​‌​‌​​‌‌​​​​​​​‌​‌​​​‌​​‌​‌​‌​‌‌​​‌​‌​‌‌‌​‌​‍Kansas City court of appeals in State v. Ransberger, supra, went a step farther, and held that the framers of the constitution *159by adopting the information оf the common law conferred the right on the prosecuting attorneys to file informations on their own responsibility and without oath, and that in the exercise of this right they could not be subjected to statutory restraints or regulations. That case was certified to the supremе court, and that particular ruling of Judge Ellison seemingly received the sanction of that court. Now, if that be the law, then no information need be verified, although' ‍​‌‌​​‌​‌​​‌‌​​​​​​​‌​‌​​​‌​​‌​‌​‌​‌‌​​‌​‌​‌‌‌​‌​‍the statute may require it to be done; for it is well established that an information at сommon law is but the allegation of the officer of the crown, and may be presented by him without leave of court аnd without oath.

On the other hand, the supreme court, in the case of State v. Bennett, 102 Mo. 356, had under consideration the sufficiency of an information filed in the St. Louis court of criminal correction, which is a court of record. One of the objections to the information was that it was not properly verified. The objection was fully discussed and passed on, and no intimation was made, either by the court or counsel, that a verification was unnеcessary. Such . could not have been the opinion of the supreme court, or else the question could have been disposed of in a line.

The information in the Ransberger case was filed before a justice of the peace, and we fully concur with Judge Ellison that suсh an information need not be sworn to by the prosecuting attorney. The reason of this is that the statute regulating such informations prescribes that they may be preferred by the prosecuting attorney “under his official oath” (R. S. 1889, sec. 4330); and as аll official acts of a prosecuting attorney must be presumed to be under his oath of office, that clause оf the statute should be treated as a surplusage. State v. Fletchall, 31 Mo. App. 296; State v. Wilkson, 36 Mo. App. 373. To that extent only is the *160decision of Judge Ellison a precedent, and to that extent only аre we bound by the decision of the supreme court affirming it. But the reasoning of Judge Ellison goes much farther, and in fact condemns as unconstitutional all statutes which attempt in any manner to regulate or impose new conditions on the use оf the process. To this we can not agree, and we think we are supported by the supreme court in the case of State v. Bennett, supra.

Our conclusion is that the information is insufficient for want of verification, and that the action of the circuit court in quashing it must be upheld. Judgment affirmed.

All the judges concur.