56 Mo. App. 409 | Mo. Ct. App. | 1894
— The state appeals from a judgment quashing the following information.
“State oe Missouri, \ “County of Newton. J
“State oe Missouri 1 In the Justice Court of John vs. VB. Heid, Justice of the Peace, “Michael Sweeney. J Yan Burén Township.
“John T. Sturgis, prosecuting attorney of Newton county, in the state of Missouri, under his oath of office and on the affidavit of R. W. Biddlecomb, herewith filed, informs the court that on or about the fifteenth day*411 of May, 1892, at the county of Newton and state of Missouri, one Michael Sweeney did then and there one silk handkerchief of the value of fifty cents, and one scarf pin of the value of $1, and one tooth brush of the value of fifteen cents, of the goods and personal property of said R. W. Biddlecomb then and there being, did unlawfully steal, take and carry away against the peace and. dignity of the state.
“John T. Stubgis,
“Prosecuting Attorney.”
Judging from the demurrer filed, the information was quashed on the ground that it is not based on a sufficient affidavit of a third person, and that the Christian name of the owner of the stolen property is not set out in full.
Under the decision of the supreme court in State v. Ransberger, 106 Mo. 135, the affidavit of a third person cuts no figure, where the prosecuting attorney files an information; hence there is no merit in the first objection. Nor is there any merit in the second objection. That the variance would not be fatal, if the objections to the indictment were made for the first’ time upon the trial, sufficiently appears by the provisions of section 4114 of the Revised Statutes of 1889, under which the defendant would not have been acquitted, even if the mistake had extended to both the Christian name and surname of the owner of the property. State v. Barker, 64 Mo. 282; State v. Nelson, 101 Mo. 477; State v. Kellar, 53 Mo. App. 32, 38. No evidence was offered on the motion to quash, and it nowhere appears that R. W. Biddlecomb was not the true name of the owner of the property, and that the owner was not generally known by the initials of his Christian name, and that his surname was not correctly stated in the indictment; hence it now appears that the court could find that the failure to state the
Of course we are aware of the fact that the question is governed by the provisions of section 4115, and not {by those of section 4114; but even section 4115 provides that no information shall be deemed invalid * * . * for any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. The courts in this state have repeatedly intimated that, if the information is ■deficient, but a coxxviction thereon can be upheld under the statute of jeofails, the indictment or informations should not be quashed, unless the imperfection tends to prejudice the substantial rights of the defendant. State v. Cox, 32 Mo. 566; State v. Duclos, 35 Mo. 237; State v. Findley, 77 Mo. 338; State v. Kinney, 81 Mo. 101; State v. Chamberlain, 89 Mo. 129, 132.
When, as in this ease, it is neither shown nor apparent- how the imperfection in the information could in any way prejudice the substantial rights of the defendant upon the merits, we must hold that the court’s sustaining a demurrer thereto is reversible error.
The judgment is reversed, and the cause remanded to be proceeded with in conformity with this opinion.
