State v. Buck

• Decision Date: 27 January 1891
• Citation: 43 Mo. App. 443
• Parties: THE STATE OF MISSOURI, Respondent, v. CHARLES BUCK, Appellant.
• Court: Missouri Court of Appeals

43 Mo. App. 443

THE STATE OF MISSOURI, Respondent, v. CHARLES BUCK, Appellant.

Missouri Court of Appeals

OCTOBER TERM, 1890

January 27, 1891

1. Criminal Law: INFORMATIONS. A criminal information before a justice of the peace must be based upon the personal knowledge either of the prosecuting attorney or of an informer. When it is made by the prosecuting attorney of his own knowledge, it need not be verified; yet if an information, after being so made, is verified by the prosecuting attorney, "according to the best of his knowledge and belief," the verification will not invalidate it.

2. —: —: SLANDER. An information for criminal slander in the defamation of a female shows inferentially that the female alleged to have been slandered was unmarried, if the prefix "Miss" is used in the mention of her name.

3. —: —: —. An information for such criminal slander charged the defendant with having uttered specified words concerning a female, amounting to an allegation that she was pregnant, and further stated that the words were spoken with intent to charge her with incest, fornication, adultery and whoredom. Held that, though the words were spoken of a married woman, the indictment was sufficient, in that the intent thus alleged was inconsistent with the idea that the pregnancy was the result of the marriage.

4. —: —: —. Held that such indictment was not bad on the ground that the slanderous words were charged to have been uttered with the intent to impute different offenses, namely incest, fornication, adultery and whoredom.

Appeal from the Montgomery Circuit Court.—HON. E. M. HUGHES, Judge.

AFFIRMED.

Ball & Ball, for appellant.

(1) The information is bad because it is not based upon the personal knowledge of the prosecuting attorney, and the information is not based upon the affidavit of any person having personal knowledge of the alleged offense. State v. Wilkson, 36 Mo. App. 373, and cited. (2) The information is drawn under section 1590, Revised Statutes, 1879, and must set out the language used, and show upon its face whether the words were spoken of a single or married female; this the information does not show, and is therefore bad. It is not sufficient to follow the language of the statute in this case. State v. James, 37 Mo. App. 214, and cases cited; State v. Hayward, 83 Mo. 299, and cases cited. (3) The offense attempted to have been charged is not sufficient. The information does not show whether the defendant charged the female with whoredom, adultery, incest or fornication, and, from the reading of the information, defendant is unable to tell what he is charged with. State v. Hayward, supra. (4) An information for a criminal offense must show on its face that an offense has been committed. In this case the information does not allege any crime under the law. State v. Marshall, 47 Mo. 378.

Sol. Hughlett, Prosecuting Attorney, for respondent.

(1) This information clearly comes within the purview of the cases cited by counsel for defendant. State v. Wilkson, 36 Mo. App. 373; State v. James, 37 Mo. App. 214. The law is clearly settled in State v. Hayward, 83 Mo. 299, cited. (2) The information was drawn under Revised Statutes, 1879, section 1590, which is the same as Revised Statutes, 1889, section 3868, and clearly follows the language of the statute. 20 Mo. App. 552.

THOMPSON, J.—This was a criminal information commenced before a justice of the peace, under section 1590 of the Revised Statutes, 1879 (R. S. 1889, sec. 3868), for speaking concerning a certain female certain false and slanderous words. The case was appealed to the circuit court, where the defendant was convicted, the jury assessing his punishment at nine months' imprisonment in the county jail.

The information was as follows:

"State of Missouri,

v.

"Charles Buck.

Before Walter McQuie, Justice of the Peace, Upper Loutre township, Montgomery county, Missouri.

"Sol. Hughlett, prosecuting attorney for and within the county of Montgomery, in the state of Missouri, of his own knowledge, informs the court that one Charles Buck, on or about the twenty-ninth day of May, A. D. 1889, at the said county of Montgomery, did then and there falsely and maliciously charge and accuse Miss Linnie Evans, a female, of incest, fornication, adultery and whoredom, by falsely speaking of and concerning such female, Miss Linnie Evans, in the presence of Edward Morris, John Morris and Nathaniel Richards, and divers other good citizens and persons, the false and slanderous words, to-wit: 'She is in the family way, it shows itself; there will be an increase in Mr. Evans' family. Linnie is in the family way; I can and could see she was sticking out;' meaning all the time to convey the impression and idea that Miss Linnie Evans was pregnant. They were spoken of and concerning Miss Linnie Evans, a female.

"SOL. HUGHLETT.

"Sol. Hughlett, prosecuting attorney, makes oath and says the facts stated in the foregoing information are true according to his best information and belief.

"SOL. HUGHLETT,

"County Attorney.

"Subscribed and sworn to before me this fourteenth day of June, A. D. 1889. My term of office expires March 25, 1890.

"ROBERT SHACKLEFORD,

"Notary Public in and for Montgomery County, Missouri.'

I. The first error assigned is that this information does not purport to be based upon the personal knowledge of the prosecuting attorney, and that it is not supported by the affidavit of anyone having personal knowledge of the commission of the offense charged. The rule in this state is, that a criminal information before a justice of the peace must be based upon the personal knowledge of some one, either of the prosecuting attorney or of an informer. State v. Hatfield, 40 Mo. App. 358; State v. Wilkson, 36 Mo. App. 373; State v. Humble, 34 Mo. App. 343. It is also a rule that, "where an information is made by the prosecuting attorney of his own knowledge, it is not necessary for him to add his affidavit to it, since it is made under the sanction of his official oath. State v. Wilkson, supra; State v. Parker, 39 Mo. App. 116, 120. In this case the information charges the offense as upon the knowledge of the prosecuting attorney, whilst the affidavit, which he has added to it, is sworn to "according to the best of his knowledge and belief." The court are of opinion that, the affidavit being surplusage, and the information being sufficient without it, it is not to be read for the purpose of vitiating the information; or at most that, if it is to be read in connection with the information, it is to be read as charging the offense upon his knowledge and to the best of his information and belief. I have much doubt on the question whether the natural interpretation of the whole instrument is not that the prosecuting attorney makes information on information and belief merely; but the judgment of the court is as above stated.

II. The second assignment of error is that the information is bad, in that it does not state that the person of whom the words were spoken was a single woman. The statute, under which the information was drawn, is as follows: "Every person who shall falsely and maliciously charge or accuse any female of incest, fornication, adultery or whoredom, by falsely speaking of and concerning such female, in the presence and hearing of any other person or persons, any false and slanderous words, which shall impute to her any such offense, * * * shall be deemed guilty of a misdemeanor." The argument is that the information does not state facts showing that the crime has been committed, because it is no crime to use the language charged with reference to a married woman. The...