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State v. Lee.

his oath of office, and upon his best knowledge, information and belief, informs the court that Charles Kyle, on the sixteenth day of November, 1900, at the County of Moniteau and State of Missouri, in and upon one M. L. Moad, unlawfully and feloniously did make an assault, and fourteen dollars of the lawful money of the United States of the value of fourteen dollars, the property of the said M. L. Moad, from the person and against the will of the said M. L. Moad, then and there by force and violence to the person of the said M. L. Moad, feloniously did rob, steal, take and carry away, against the peace and dignity of the State.

"N. C. HICKCox, Prosecuting Attorney.'

That was the approved form of a common-law information charging a felony before the passage of the statute requiring verification. No conclusion like that for a common-law indictment appears. It starts out with the statement that the prosecutor presents the charge "under his oath of office," but that was not necessary by the common-law form. [1 Bishop's New Criminal Proc. 107108.] It may be argued that because an information at common law could not be filed for a felony charge, but only for misdemeanors, the common-law form for indictment should apply to informations charging felony. The cases last cited show this court did not so hold, but applied to felonies the common-law rule that an information needed no concluding averment that it was upon the oath of the prosecutor.

IV. The State was without a statute providing a form for informations until March, 1901, when an act went into effect which is now Section 3849, Revised Statutes 1919, as follows:

Information:
Statutory

Requirements.

"Sec. 3849. Informations.-Informations may be filed by the prosecuting attorney as informant during term time, or with the clerk in vacation, of the court having jurisdicton of the offense specified therein. All informations shall be signed by the prosecuting attorney

303 Mo. Sup.-17.

State v. Lee.

and be verified by his oath or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person, which shall be filed with the information; the verification by the prosecuting attorney may be upon information and belief. The names of the witnesses for the prosecution must be indorsed on the information, in like manner and subject to the same restrictions as required in case of indictments.'

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That statute made it necessary to verify an information; not a common-law verification, but a statutory one. It would not have to follow any common-law rule in respect to the mere formal parts.

In the first case which arose after the statute was passed (State v. Bonner, 178 Mo. 424, 1. c. 431), this court construed the statute thus:

"When our General Assembly took this subject in hand and directed the form of prosecutions by information, the common law on this subject no longer obtained. It was the obvious purpose of the Legislature, in view of the amendment to the Constitution, to revise the whole subject-matter of the prosecutions by information, and to make Article 3 of Chapter 16, Revised Statutes 1899, uniform in its operations as to all grades of crime, and it must be held that the Acts of March 13, 1901 (Laws 1901, pp. 138-139), operated to supersede the common law on the subject, and that they were intended to prescribe the only rules of procedure which should govern such prosecutions."

The act mentioned is now Section 3849, above set out. The italics ours.

The opinion was written by GANTT, J., the other judges of Division Two concurring. The information charging felonious embezzlement was in three counts, each count almost identical in form with the information in the Kyle Case set out above. It was not verified at all as the statute requires. The defendant for that reason filed a motion to quash, and the case was reversed and remanded because the trial court overruled the motion. The point was timely raised in the trial court. The signi

State v. Lee.

ficance of the ruling is that it was in keeping with reasons quoted above. The common law relating to informations was repealed and the statute must be complied with.

It was followed by State v. Brown, 181 Mo. 192, a murder case, where Fox, J., speaking for Division Two, quoted and approved the rulings in the Kyle Case and in the Bonner Case, applying them to the murder case, 1. c. 224-232, stating the purpose of the statutory verification of an information, as follows, 1. c. 232:

"Its purpose was to afford the defendant a guaranty of the good faith of the prosecution and to prevent a careless and reckless prosecution of a citizen.”

That is exactly the reason advanced for requiring an indictment to allege that it is presented upon oaths of the grand jurors. The Bonner Case has been cited with approval in many later cases. [State v. Jordan, 285 Mo. 68; State v. Anderson, 252 Mo. 1. c. 95; State v. Zehnder, 182 Mo. App. 165.] The doctrine announced as above quoted, has never been disapproved or criticised.

The information in this case is presented by the prosecuting attorney, "upon his oath of office," and "upon his information and belief," and concludes as follows:

"And so that the said John Lee him the said Preston Young in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly and with his malice aforethought, did kill and murder against the peace and dignity of the State."

It is signed by H. J. Westhues, Prosecuting Attorney of County of Cole, and his oath, on information and belief, is endorsed in due form upon it. The conclusion has all that the Constitution requires for an indictment, and all that the Common Law form of indictment demands except that it does not say it is upon oath. It omits only what the statute, as construed in the Bonner Case and the Brown Case, says may be omitted and supplied by the separate oath of the prosecutor, as was done.

Keeping in mind Judge GANTT's language in the Bonner Case: "It was the obvious purpose of the Legislature to revise the whole subject-matter of the

State v. Lee.

prosecutions by information, and to make Article 3, of Chapter 16, Revised Statutes 1899, uniform in its operation as to all grades of crime," we may examine more closely the statute. It provides three methods of authenticating the information:

(a) It may be "verified" by the "oath" of the prosecuting attorney;

(b) It may be "verified" by "oath" of a competent witness;

(c) It may be "supported" by the "affidavit" of a competent witness, to be filed with the information.

Either of these methods is sufficient. It is not necessary to allege in the conclusion of the information that it is upon the oath of the prosecutor, because as at common law that is presumed. (See cases cited above under III).

Nor is it necessary to allege in the body of the information that it is presented upon his special oath, or the oath of a witness, because the assurance that it is presented upon proper authority appears in the verifying or supporting oath or affidavit, a separate and distinct act. [State v. Brown, supra.]

In State v. Webster, 206 Mo. 1. c. 570, this was said: "It is true that the prosecuting attorney did not allege in the information that it was made upon his oath of office, but that did not invalidate the information." That was a misdemeanor case, but the statute makes no distinction between felonies and misdemeanors, in matters of form. The statute applies "to all grades of crime.”

Notice the use of the language, "verified" by "oath" in (a) and (b), and "supported" by "affidavit” in (c). In (a) and (b) the prosecutor or the witness swears that the facts stated in the information are true. That verification takes place after the information is drawn; the prosecutor need not know when he draws it who will swear to it, and of course in that case cannot allege in the body of it upon whose oath it is presented.

In the third case (c) the "affidavit" which "supports" the information is a separate instrument "filed with the information." It may be filed at any time

State v. Lee.

prior to the filing of the information (State v. Lawhorn, 250 Mo. 1. c. 304), and before the information founded upon it is framed.

It was well said in the case of State v. Adkins, 284 Mo. 1. c. 694, the fundamentals of the Constitution should not be outweighed by forms. The spirit and purpose of amended Section 12, Article 2, of the Constitution, the plain legislative intention in enacting Section 3849, Revised Statutes 1919, as interpreted by this court in the Bonner Case, was to replace the formal requirements of a common-law indictment, with a common sense form of information and to make the charge apply to "all grades of crime."

As indicating a legislative intention to change entirely the form of the information, the statute concludes with a requirement that the names of witnesses shall be indorsed on the information as required in case of indictments. This specific retention of that requirement shows that other formal requirements for indictments were not intended to be retained.

Besides the cases cited above, the reports show many felony cases where the informations are set out in full and held good though the conclusion required of an indictment is lacking. Some of them are State v. Locket, 188 Mo. 415, 1. c. 418; State v. Sharpless, 212 Mo. 1. c. 182-184; State v. Anderson, 252 Mo. 1. c. 87-88; State v. Lawhorn, 250 Mo. 1. c. 296. In the Lawhorn Case the information was held bad for want of the statutory affidavit; otherwise, it was sufficient.

It is claimed here that an information charging In Murder murder should contain the formal conclusion of indictment merely and only because it

Cases.

charges murder.

In the case of State v. Anderson, the defendant was charged with assault with intent to kill. The information is set out in full at pages 87-88; it contains no formal conclusion except the constitutional requirement "against the peace and dignity of the State." It was signed and sworn to by the prosecuting attorney, and his

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