147 Mo. App. 596 | Mo. Ct. App. | 1910
The information in this case charges the defendant with willfully, corruptly and falsely, under oath, voluntarily making a false affidavit for the purpose of obtaining a dramshop' license. The charge in the information is that he made this voluntary false affidavit “before an officer authorized to administer oaths. ” No name of the officer is given before whom the affidavit is charged to have been made, but at the end of the affidavit, as set out in the information, appears this: “Sworn to and subscribed before me this fifth day of February, 1908. Thomas E. Mulvihill, Excise Commissioner.” It appears in evidence that in point of fact the affidavit was not made before the excise commissioner but before a notary public named Haley, who was also a police officer and on duty in the office of the excise commissioner. ' While it is true, as alleged by the attorney for the state, that the jurat itself is not part of the affidavit, but mere evidence of the fact that an affidavit was taken and before whom taken, it is a fundamental rule of pleading in criminal causes that the indictment or information must set out the charge with sufficient certainty to advise the defendant of the offense with which he stands accused: with such certainty as to enable him to prepare his defense. Anyone reading the affidavit as it is set out in the information would assume that the affidavit had been taken before Thomas E. Mulvihill, excise commissioner. When the information charges that the affidavit was made “before an officer authorized to administer oaths,” and that is followed by this affidavit with its accompanying jurat and signature, no one reading it would arrive at any other conclusion than that it charged that that officer who had administered the oath was Mr. Mulvihill. When the proof of the state itself
