State v. Kelm
| Decision Date | 31 October 1883 |
| Citation | 79 Mo. 515 |
| Parties | THE STATE, Appellant, v. KELM. |
| Court | Missouri Supreme Court |
Appeal from Jefferson Circuit Court.--HON. L. F. DINNING, Judge.
AFFIRMED.
D. H. McIntyre, Attorney General, for the State.
J. H. Vail for respondent.
This is a prosecution for petit larceny instituted in justice's court on the affidavit of a private citizen. On a trial had therein the defendant was fined $1. From this judgment he appealed to the circuit court, where, on a trial de novo, he was again found guilty and fined $10. The circuit court sustained a motion in arrest of judgment for certain defects in the proceedings unnecessary to particularize, as our decision is placed upon other grounds fatal to the proceeding. The State has brought the case here on appeal.
Section 12, article 2 of the State constitution declares that “no person shall, for felony, be proceeded against oriminally otherwise than by indictment, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; in all other cases offenses shall be prosecuted criminally be indictment or information as concurrent remedies.”
In Ex parte Slater, 72 Mo. 102, this court held that the word “indictment,” as used in said section, “has a well defined meaning, and must be accepted and understood as having been inserted in the constitution with the meaning attached to it at common law.” The court then quoted from Bacon's Abridgement and other common law textwriters to show what were the qualities and incidents of an indictment as employed in the ancient proceedings.
This being unquestionably a correct construction of the term “indictment” as used in the constitution, it must follow that the term “information,” as employed in the same section, should be subjected to the same common law meaning. The text-books are uniform in defining an information to be an accusation or complaint exhibited against a person for some criminal offense, “either immediately against the king or against a private person, which, from its enormity or dangerous tendency, the public good requires should be restrained and punished, and differs principally from an indictment in this, that an indictment is an accusation found by the oath of twelve men, whereas an information is only the allegation of the officer who exhibits it. 5 Bacon's Abr., pp. 167, 170, 172; Hawk. P. C., 26, § 4. The information at common law was uniformly exhibited by the attorney general in certain cases, but at his discretion, except, perhaps, where directed by the house of lords or house of commons, or some of the high officials, as the lords of the treasury, etc. The king's coroner and attorney in the court of king's bench, called the crown officer, might file informations. This he might do, and usually did, at the prompting of some private individual. But no private citizen could beget a criminal prosecution on his mere affidavit or information. 1 Bishop Crim. Proc., (3 Ed.) 141, 143; Jacob's Law Dic., title “Information.” Bishop, (§ 144) says: ...
To continue reading
Request your trial
-
State v. Thayer
...is the accusation of a grand jury, an information is only the allegation of the officer who exhibits it. 5 Bac. Abr. 170, 172; State v. Kelm, 79 Mo. 515. By limiting the right of appeal from judgments holding indictments insufficient, or motions to quash, on demurrers and on motions in arre......
-
The State v. Thayer
...court held that the action of the circuit court was proper, and nothing was said about the question of jurisdiction. The case of State v. Kelm, 79 Mo. 515, was a for petit larceny begun in a justice court on the affidavit of a private citizen. A conviction was had and an appeal to the circu......
-
State ex rel. Chicago, Burlington & Quincy Railroad Co. v. Bland
...as used in the Constitution, are to be understood in their common law sense [Ex parte Slater, 72 Mo. 102; State v. Kelm, 79 Mo. 515]. In the Kelm case it was held that the 'information' as used in section 12 of article 2 of the State Constitution of 1875, was to be understood in its common ......
-
Ex parte Mcnaught
...not exist in England. The latter officers seem to be entitled, under the common law here in force, to prosecute by information. State v. Kelm, 79 Mo. 515; Evans v. Willis, supra,; State v. Houston, 21 Okla. 782, 97 P. 995. In the latter case the court said: "It is the duty of the county att......