State v. Fletchall

Philips, P. J. The defendant was prosecuted and convicted, on information filed by the prosecuting attorney of Worth county, before a justice of the peace, for exhibiting a certain deadly weapon, to-wit, a pistol, in the presence of one or more persons, in a rude, angry, and threatening manner, etc. The principal reason assigned by the appellant for reversing the judgment of conviction below is the alleged invalidity of the information. His objection is : (1) because the information is not verified by the affidavit of any person who would be a competent witness to testify therein ; and (2) because the information does not show that the prosecuting attorney had any personal knowledge of the facts alleged therein, and the same is not verified by his affidavit. It was held in State v. Kelm, 79 Mo. 515, that such prosecutions must be upon the information of the prosecuting attorney, and not at the relation of any private person. It was further held in that case that the term “information”, as employed in the constitution, was used in its common-law sense and import. This is the supreme authority of the state, binding upon the courts and the legislature alike. This ruling has been repeatedly followed by the Supreme Court since. The legislature in 1885 ( Laws of Mo., 1885, p. 145 ), in recognition of and in obedience to this construction of the Supreme Court, amended the statute of 1879) which was" the subject of construction, by entirely striking out sections 2025, 2026, 2028, and 2054, of chapter twenty-four, article twenty-three, and in lieu thereof authorized prosecutions before justices of the peace for misdemeanors by information, “which shall'set forth [300] the offence in plain and concise language, with the name of. the person or persons charged therewith. * * * All such informations shall be made by the prosecuting attorney of the county in which the offence may be prosecuted, under his oath of office, and shall be filed with the justice,” etc. There is also another clause of this statute which requires the prosecuting attorney, whenever he has knowledge of the commission of any such offence, or shall be informed thereof by complaint lodged with him, etc., to file the information. There is nothing in this statute which requires the prosecuting attorney to either set out in the information the sources of his knowledge, or to support it by his affidavit. There is nothing in the constitution making any such requirement, as it (sec. 12, art. 2) merely authorizes prosecutions to be made by indictment or information. And as already stated, the term ‘£ information ” as thus employed in the constitution must be taken and understood in its common-law meaning and import. At common law, the crown officer was not required to make oath to the information lodged by him, nor to set out his source of information, nor to state that he had personal knowledge of the fact. He did not even have to obtain leave of the court to file the information. And while he usually did it at the prompting of some private person, the information did not make any mention of this fact. Bishop Grim. Proc., secs. 142, 143, 144. The form of such information at common law, as given by this author ( sec. 146), contains no such requirement as is contended for by appellant. The language of our statute (Laws of 1885, supra) authorizing the prosecuting attorney to make such informations “under his oath of office” was quite superfluous, as such officer, while acting in his official capacity in all prosecutions, is supposed by the law to be acting under his oath of office. The information filed by him in this case is quite formal, and employs the statutory requirement, “ under his oath of office.” The statute [301] itself, also, in stating .what the information shall contain, simply requires that it “ shall set forth the offence in plain and concise language, with the name of the person or persons charged therewith.” So the information attacked is in conformity with the essential requirements both of the common law and the statute. The rulings of the court of appeals of the state of Texas, based upon her constitution and statutes, cannot control here. Our own constitution, as interpreted by the Supreme Court of this state, must be our guide. It does not appear from the cases cited from that jurisdiction that Texas has the same provision in her constitution as that of section twelve, article two, of our state constitution.- As held by our Supreme Court, the term information as employed here being the same as at common law, we must look to the common law for its meaning. In Texas the common law of England does not obtain, except in so far as she may adopt it by legislative enactment. Flato v. Mulhall, 72 Mo. 525. As by the express provision of our constitution (sec. 12, art. 2), in case of prosecution for misdemeanors, indictment and information are concurrent remedies, there is no more reason for saying that the proceeding by information according to the common-law form is not due process of law, than for saying an indictment is not such, because the warrant of arrest was not supported by oath or affidavit reduced to writing, as provided for in section eleven, article two, of our constitution. The very fact that the succeeding section (sec. 12) proceeds to deal with the subject of .prosecutions by indictment and information, shows conclusively that in the minds of the framers of our organic law the provisions of section eleven referred to an entirely different and distinct subject-matter. The objection is overruled. II. The other error assigned by the appellant is the action of the court in denying his application for a continuance. We are precluded from considering this objection, for the reason that defendant did not set up such error in his motion for new trial. State v. Mann, [302] 83 Mo. 589; State v. Ray, 53 Mo. 345; State v. Blau, 69 Mo. 317; State v. Burk, 89 Mo. 635; Hatcher v. Moore, 51 Mo. 115; McCoy v. Farmer, 65 Mo. 244; Griffin v. Regan, 79 Mo. 73; State ex rel. v. Burckhartt, 83 Mo. 430. 1 The judgment oí the circuit court is affirmed. All concur.