State v. Derkum
| Citation | 27 Mo.App. 628 |
| Parties | STATE OF MISSOURI, Respondent, v. BENJAMIN DERKUM, Appellant. |
| Decision Date | 07 November 1887 |
| Court | Court of Appeals of Kansas |
APPEAL from Cole Circuit Court, HON. E. L. EDWARDS, Judge.
Affirmed.
The case is stated in the opinion.
EDWARDS & DAVISON, for the appellant.
I. The affidavit is made before W. H. Lusk, circuit court by C. W. Wallendorf, D. C. There is no such officer known as " circuit court," and hence the information is not sworn to as required by law, and the motion to quash it should have been sustained. Sect. 1762, Rev. Stat. It is true in this case the transcript shows that W. H. Lusk was circuit clerk, and C. W. Wallendorf his deputy, but there was no effort to show this fact on the trial, or to amend the affidavit or complaint.
II. This information was filed on the fourth day of January 1886. At this time the December term of the circuit court for 1885 had not adjourned, but had only adjourned over for the holidays, and during this adjournment this information was filed with the clerk. This was in violation of the statute and for this reason the motion to quash should have been sustained. Rev. Stat. 1879, p. 298, sect. 1762.
III. An examination of the record of the court in the transcript will disclose the fact that the information in this case was never filed in the court, or became a part of the record, and hence the court had no jurisdiction to hear and determine the same. It is evident that the prosecutor can only file an information against a person for a violation of law in two cases, if he is governed by the statute: First, he must know of his own knowledge of the commission of the offence, or, second, it must be upon the affidavit of some witness competent to testify in the case. Rev. Stat. 1879, sects. 1762, 1763; State v. Kirschner, 23 Mo.App. 349.
No brief for the respondent.
This is a proceeding begun by the prosecuting attorney filing an information against defendant, for selling liquor without license.
Defendant filed a motion to quash the information, which being overruled, and his conviction following, he appeals to this court.
I. The first point presented is that the information was filed during term time, with the clerk, and not in the court, and, therefore, was not a legal complaint against defendant, under section 1762, Revised Statutes. The circuit court of Cole county convened December 7, 1885, and, on December 23, adjourned to January 11, 1886. The information was filed January 4, 1886. There was no entry made of record of the filing of this information, and we have, in the transcript before us, simply the usual entry made by clerks of matters transpiring in vacation. Defendant contends that it was not " in vacation of the court," as contemplated by the statute (supra ), when this information was filed, and hence was not filed in any place contemplated by law.
We are told by defendant's counsel that the court below considered the information was filed in vacation, by reason of section 3126, Revised Statutes, as amended in Laws of 1885, page 191, wherein it is provided that, " whenever any act is authorized to be done by, or any power given to, a court or judge thereof, in vacation, or whenever any act is authorized to be done by, or any power given to, a clerk of any court, in vacation, the words, " in vacation,' shall be construed to include any adjournment of court for more than one day." But the first portion of that section enacts that, " the construction of all statutes of this state shall be by the following additional rules, unless such construction be plainly repugnant to the intent of the legislature, or of the context of the same statute."
Under the authority of this portion of section 3126 (), we will construe sections 1762 and 1769 together, and in that way ascertain if the words, " in vacation," in section 1762, mean a mere adjournment of the court for more than one day. By section 1769, it is provided that, upon the filing of the information authorized by section 1762, a warrant shall issue; that " if such warrant be issued in term, it shall be made returnable forthwith; but if issued in vacation, it shall be made returnable to the next term thereafter, and if defendant be arrested during the term he shall be brought into court; but if he be arrested in vacation of the court, the officer" shall bail him, etc. It would appear to be clear from the terms of this section that the vacation spoken of has...
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