State v. Fuser

Smith, P. J. — statement. It appears from the record that on the twenty-first day of April, 1896, one E. L. Moehle filed a complaint, verified by affidavit, before a justice of the peace charging that defendant had unlawfully obstructed a certain public road, and that thereupon a warrant was issued and the defendant arrested. It further appears that later on the prosecuting attorney filed with the justice an information charging “on the sworn complaint of E. L. Moehle (filed herewith) informs W. T. Gibson, a justice of the peace within, etc., that the defendant on the second day of May, 1896, at, etc., did then and there unlawfully obstruct a certain public road,” etc. Though the justice’s docket recites that the complaint was filed it does not appear to have accompanied the ’ information of the prosecuting attorney, or to have been filed therewith. It is not so found anywhere in the record. All that we know of it is gleaned from the recitals of the justice’s docket. In the circuit court, where the cause was removed by appeal, there- was a trial which resulted in judgment for the state, and from which defendant has appealed. The defendant assails the judgment here on the ground that the information was not founded upon or accompanied by the complaint as required by the statute. [265] As the complaint did not accompany the information and if filed with the justice it nowhere appears in the record, resort must be had to the recitals of the justice’s docket in order to determine whether or not the grounds of defendant’s assault are tenable. We are informed by it that the complaint was filed on April 21, 1896. Now the information charges that the offense was committed on May 2, 1896. It is clear that the offense described in the former was not the same as that described in the latter. The complaint could describe an offense theretofore committed, but not one thereafter committed. The offense described in the information was committed long after the date of the filing of the complaint. Then it is clear that the information was not based on the complaint filed with the justice, although it purports to have been. If an information discloses on its face that it is not made upon the knowledge and information or belief of the prosecuting attoi*ney, as here, but upon a complaint filed before a justice of the peace, it must be founded on the complaint. R. S., sec. 4329; State v. White, 55 Mo. App. 356; State v. Lewis, 70 Mo. App. 40. In such case if it be not founded on the complaint the prosecuting attorney is without authority to file the same. State v. Shaw, 26 Mo. App. 383. The information here necessarily charged a different offense from that charged in the complaint filed before the justice and therefore the former was not based on the latter. The information was invalid and for that reason the judgment must be reversed and defendant discharged. All concur.