State v. Kemple

• Decision Date: 24 October 1887
• Citation: 27 Mo.App. 392
• Parties: STATE OF MISSOURI, Respondent, v. HENRY KEMPLE, Appellant.
• Court: Kansas Court of Appeals

27 Mo.App. 392

STATE OF MISSOURI, Respondent, v. HENRY KEMPLE, Appellant.

Court of Appeals of Missouri, Kansas City.

October 24, 1887

APPEAL from Osage Circuit Court, HON. A. J. SEAY, Judge.

Reversed and defendant discharged.

The case is stated in the opinion.

RYORS & VOSHALL and H. CLAY EWING, for the appellant.

I. This was a prosecution against the appellant for petit larceny upon an information filed by the prosecuting attorney of Osage county, Missouri. The information was not verified by the oath of the prosecuting attorney, nor by any one else.

II. Upon the trial in the circuit court the defendant filed his motion to quash the information, because " not based upon the affidavit of any person competent to testify in this cause, and is not supported by the oath of the prosecuting attorney, either as an individual or as an officer." This motion was overruled, and the defendant objected and excepted at the time. The case being submitted to a jury upon the evidence and instructions, they found the defendant guilty. The defendant filed a demurrer to the evidence, in the shape of an instruction, which was refused by the court and defendant objected and saved his exceptions. The court of its own motion, gave instructions which are not in the record and cannot be found. Defendant appeals to this court, after filing the proper motions, affidavit, and bond.

III. The law requires the circuit court to instruct the jury in criminal cases, and not having done so, this case must be reversed. State v. Branstetter, 65 Mo. 149, and authorities cited; State v. Banks, 73 Mo. 592; State v. Reed, 67 Mo. 36.

IV. The motion to quash the information should have been sustained. The information was not verified by affidavit, as required by law. The affidavit of Wm. V. Phelps is upon belief alone, and is not, moreover, an affidavit to, or verification of, the information. Acts 1885, sect. 2028, p. 145; State v. Hayward, 83 Mo. 299; State v. Calfee, 10 West. Rep. 272.

No brief on file for the state.

ELLISON J.

This is a prosecution for petit larceny, begun before a justice of the peace by information. The offence was committed before the amendment of sections 2025, 2026, 2028, and 2054 of the Revised Statutes. Laws 1885, p. 145.

I. Defendant was convicted in the justice's court, and on appeal was again convicted. The information was filed by the prosecuting attorney and was not sworn to. There was an affidavit by the prosecuting witness in which it is stated that, " on or about the sixteenth day of January, 1885 by some person or persons feloniously taken, stolen, or carried away out of the house of, or from the premises of this affiant by one Henry Kemple as he verily believes" ; etc. This affidavit was relied upon to support the information, but, at most, being...