State v. Hoffmann

Biggs, J. — The defendant was arrested, tried and convicted, before a justice of the peace upon an information drawn under section 3846 of the Revised Statutes of 1889; and charging him with destroying or injuring a tombstone within a certain cemetery or [384] graveyard, and also with using the ground of the cemetery for purpose other than a burying ground, to wit, plowing it up for the purpose of cultivation. On a trial de novo in the circuit court the defendant was convicted of plowing up the graveyard and acquitted of the other charge. A fine of $600 was imposed. He has appealed to this court. ^ateT^’tioFIoi new trial and in arrest^of jndgproper6001^ There is a bill of exceptions in the case, but it does not appear that there was either a motion for a new trial or in arrest of judgment, hence in reviewing the case we are confined to questions arising on the record proper. The information . . . . , . . _ contains two counts or makes two specific charges. It is suggested by counsel for defendant that the affidavit of the prosecuting witness and upon which the information is based, makes but one charge, to wit, destroying or injuring a tombstone, etc., and that as the defendant was acquitted of that charge, his conviction of the other can not be upheld. Counsel are mistaken as to the true condition of the record. The first affidavit was filed April 1, 1895. It charged that the defendant destroyed the tombstones and trees in the cemetery (without describing it), and it also charged that the defendant “used the cemetery for other purposes than a burial ground.” Afterward and before the information was filed the prosecuting witness filed an additional affidavit, which contains a definite description of the ground embraced in the cemetery, and it also states more definitely the particular acts of defendant in the destruction of the tombstones, trees, etc. It, however,' makes no mention of the other charge. ri£u?t btlnpported by affidavit. It, therefore, appears that the information, as to both offenses, is supported by affidavits. The first affidavit is indefinite, but it is sufficient to sustain information. State v. Grubb, 71 Mo. [385] App. 214; State v. Cornell, 45 Mo. App. 96. The assignment will therefore be overruled. ssm,ctioSVon~ The statute governing criminal procedure before justices of the peace provides that in changes of venue the justice before whom the application is made must award the change “to the next nearest justice in the township, if there be one.” (Sess. Acts 1891, p. 121.) This prosecution was begun before L. B. True, a justice of the peace in Valle township in Jefferson county. An application was made by the defendant for a change of venue of the cause on account of the prejudice of True. True sent the case to P. C. Zollman, another justice of the same township. It is now urged by the defendant that his conviction can not stand, for the reason that the transcript of the proceedings before True does not affirmatively show that Zollman was the nearest justice to True. The administration of the criminal law is hedged in and embarrassed by many technical rules and precedents, but it is believed that no case can be found to support the present contention. It is conceded that the prosecution was properly begun before True, and that the defendant was apprehended under valid process. He appeared before True and applied for a change of venue. The case was sent to Zollman, before whom he voluntarily appeared, and without objection engaged in a trial. Under these circumstances the contention of defendant seems to us to be unreasonable, even though it be conceded that there was another justice in Valle township. As there is no error in the record proper, the judgment of the circuit court will be affirmed. All the judges concur.