88 Mo. App. 263 | Mo. Ct. App. | 1901
The defendant was convicted for taking fish from Lake Contrary in Buchanan county by means of a seine which he had placed and maintained in the lake. The prosecution was begun by the assistant prosecuting attorney for said county and the first question presented is whether such assistant prosecutor can make out and sign, in his own name, an information for a misdemeanor.
By reference to article 2, chapter 75, Revised Statutes 1899, it will be seen that there are different classes of attorneys for the State and different classes of assistants. Eor the city of St. Louis it is provided that there shall be elected a circuit attorney and an assistant circuit attorney (section 4959). It is also provided that in the city of St. Louis there shall be elected a prosecuting attorney and an assistant prosecuting attorney for the court of criminal correction (section 4961). This assistant is specifically authorized to file an information in that court in his own name. State v. Daly, 49 Mo. App. 184. In all the counties of the State the prosecuting attorney may, in writing, appoint an assistant, who shall take the same oath as his principal and be paid by him. And he shall discharge the duties of his principal when the latter is sick, absent from the county, or is engaged in the duties of his office so he can not attend; or assist in any case at his principal’s request (sections 4975-4977).
In counties of 75,000 or more inhabitants the prosecuting attorney may appoint an assistant and second assistant prosecuting attorney with the consent of the judge of the court having criminal jurisdiction in such county, who shall be commissioned and paid by the county court a salary between cer
The statute (section 5002) provides .that the population of a county may be ascertained from the last State or Federal census or, the total vote of the county for president of the United States at the last election multiplied by five. ' This prosecution was begun before the census of 1900 and we therefore take as the most recent basis of population the vote for president in 1896. At that election Mr. Bryan received 7,336 votes, Mr. McKinley 6,854 and all others 147, making a total of 14,337, which, multiplied by 5, makes a population according to this method, of 71,685. In consequence of this, Buchanan county has, in addition to the assistant who may be appointed by the' prosecutor himself in all counties and paid by him under section 4996 aforesaid, another class provided for by section 4996 as above shown to be authorized by that section. Here are two classes of assistants which may be appointed in the same county. The source and mode of appointment and compensation and source of compensation are not the same, nor are their duties alike. The assistant appointed and paid by the prosecuting attorney himself has a broader field of duty than the one appointed with consent of the court and paid by the county. The former may, in the contingency of sickness or absence of the
“It shall be the duty of such assistant prosecuting attorney to attend to all cases of misdemeanor and preliminary examinations in justices’ courts throughout his county; to appear before the grand jury of his county, if requested so to do by the prosecuting attorney, for the purpose of assisting and advising said body, and examining witnesses and arranging and preserving their testimony, and to aid generally in the performance of.such other duties pertaining to the office of prosecuting attorney as may be designated by such officer” (sec. 4973, R. S. 1899).
We construe this to mean that such assistant only has charge of misdemeanor cases in the justices’ courts; and for a misdemeanor to be prosecuted in that court he may file an information in his own name. We do not understand the concluding clause of the section authorizing such assistant to “aid generally in the performance of such other duties” as may be designated by his principal, to enlarge his specially limited -authority in the first clause.
The information in this case was given to the criminal court of Buchanan county. It could therefore only be made in the name of the assistant of the class appointed and paid by the prosecuting attorney himself. We have no means of knowing to which class the assistant who made this information belonged. It was not shown by defendant and does not appear in the record. We certainly can not take judicial notice of his appointment. We should, however, presume in favor of the judgment of the trial court that he belongs to the class which
Coming to a consideration of the merits of the case made by the State we find that the defendant is charged in the information with having used his seine in Lake Contrary. According to a familiar rule of criminal law, it becomes necessary for the State’s proof to meet the particularity of the charge; that is, having affirmed that defendant seined for fish in Lake Contrary it should prove the place as a part of its case.
The evidence shows that the lake, which lies in the Missouri river bottom, is about two or two and one-half miles long east and west and about one half mile wide north and south. The government survey of 1844 gave the lake greater boundaries than it now has, that is to say it has become of less area since that time. Originally its west end extended about one fourth of a mile west of the east line of section twenty-eight, but there has been a gradual retrocession until now there is a public road on this section line running across what was formerly the narrow and west end of the lake. About three-fourths of a mile west of this road is another public road running parallel with the first. Between the two roads there are cultivated farms and have been for several years. In periods of overflow or high water, especially when a creek, known as Contrary creek, heading in the bluffs and emptying into the lake, gets out of its banks, the lake overflows and spreads out over the adjoining country and over the farms between the two wagon roads aforesaid. It was in the field of one of these farms then covered with water that defendant was shown to have seined for fish. Now while it is true that the water of the lake and the water thus spread over these fields by overflow was one body of water, yet it does not follow that the water in the fields was the water of the lake, much less does it show that the field, by reason of
In onr opinion there was an entire failure of proof and the judgment will be reversed and defendant discharged.