State v. Kemple

Ellison, J. This is a prosecution for petit larceny, begun before a justice of the peace by information. The offence was committed before the amendment of sections 2025, 2026, 2028, and 2054 of the Revised Statutes. Laws 1885, p. 145. I. Defendant was convicted in the justice’s court, and on appeal was again convicted. The information was filed by the prosecuting attorney and was not sworn to. There was an affidavit by the prosecuting witness in which it is stated that, “on or about the sixteenth day of January, 1885, by some person or persons feloniously [394] taken, stolen, or carried away out of the house of, or from the premises of this affiant by one Henry Kernple as he verily believes”; etc. This affidavit was relied upon to support the information, but, at most, being merely upon belief, it was not sufficient. It is only the prosecuting attorney who can make the verification upon information and belief. State v. Hayward, 83 Mo. 299 (a case begun before a justice of the peace); State v. Downing, 22 Mo. App. 504. II. Defendant moved to quash the information in the circuit court. The court overruled the motion and then permitted the prosecuting witness to make an affidavit to the information, “according to the best of my knowledge and belief.” This amendment, if allowable at all, could not be made after the case reached the circuit court. State v. Russell, 88 Mo. 648. The judgment is reversed and the defendant discharged. All concur.