State v. Piro

• Decision Date: 09 December 1922
• Docket Number: No. 23718.,23718.
• Citation: 246 S.W. 928
• Parties: STATE v. PIRO.
• Court: Missouri Supreme Court

246 S.W. 928

STATE v. PIRO.

No. 23718.

Supreme Court of Missouri, Division No. 2.

December 9, 1922.

Appeal from Circuit Court, Buchanan County.

John Piro was charged by information with burglary, and, from an order sustaining a motion to quash the information, the State appeals. Reversed and remanded.

Jesse W. Barrett, Atty. Gen., and J. Henry Caruthers, Asst. Atty. Gen., for the State.

DAVID E. BLAIR, J.

From an order sustaining a motion to quash an information charging respondent with the crime of burglary and larceny in Buchanan county, the state has appealed, as authorized by sections 4008 and 4099, R. S. 1919. The motion to quash does not go to any defect in the information, but is based upon alleged failure to lodge in the justice court a legal complaint charging respondent with the crime of which he stood charged under said information filed in the circuit court.

A formal complaint, properly charging respondent with burglary and larceny, was signed by Perry Brubaker, prosecuting attorney, and filed with John W. Wilson, justice of the peace of Washington township in said county. It appears that the jurat to such complaint was not dated or signed by the justice of the peace.

The transcript of the docket of the justice of the peace shows that on November 4, 1921, Brubaker filed affidavit and complaint charging respondent with the crime of burglary and larceny, and that the justice thereupon issued a warrant and delivered the same to D. H. Hatfield. Said warrant was returned executed on November 5, 1921, by arresting respondent and bringing him before the justice of the peace as commanded. On formal arraignment respondent demanded a preliminary examination, and same was set for November 18, 1921, at 2 p. m., and bond was fixed at $1,500, in default of which he was committed to jail. On November 18, 1921, the cause was continued by the state until December 2, 1921, at 2 p. m. On December 2, 1921, the cause was continued by respondent to December 16, 1921, at 2 p. m. The following entry then appears: "Now on Dec. 16, 1921, 2 p. m., comes Deft. and waives preliminary hearing." The case was thereupon certified to the circuit court. Respondent's bond was fixed at $1,000, in default of which he was committed to jail.

On January 2, 1922, being the first day of the regular January term, 1922, of the Buchanan county circuit court, respondent waived formal arraignment under the information charging him with the crime of burglary and larceny and entered a plea of not guilty and gave bond for his appearance. Thereafter, by leave of court, he withdrew his plea of not guilty and filed the aforesaid motion to quash the information. A transcript of all the entries on the docket of the justice of the peace as above detailed and the original papers were in evidence before the trial court. The motion to quash was sustained and exception of the state duly noted and preserved by timely bill of exceptions.

The sole question presented to us on the record is whether respondent waived the formal defects in the complaint by waiving preliminary hearing before the justice. Section 3848, R. S. 1919, provides that no prosecuting attorney shall file any information charging any person with a felony until such person shall have been accorded the right of a preliminary examination, and further provides that a preliminary examination shall in no case be required where same is waived by the person charged with the crime. The meat of the question therefore is: Does the waiver of preliminary examination authorize the filing of an information in the circuit court and trial thereunder when the complaint filed in the justice of the peace court fails to show proper verification? The justice of the peace testified that he had no recollection whether or not the complaint was in fact sworn to by the prosecuting attorney.

Section 3812, R. S. 1919, provides that whenever complaint shall be made in writing and upon oath, etc., it shall be the duty of the magistrate to issue a warrant reciting the accusation and commanding the arrest of the accused.

It must be admitted that the complaint did not comply with section 3812, in that it was not sworn to by the prosecuting attorney. If respondent had objected to the sufficiency of the complaint in the justice court and had then been bound over to the circuit court after a formal preliminary examination, a different question would be before us. But respondent did not attack the complaint in that court. After several continuances, he waived a preliminary examination and was bound over to the circuit court. It will be observed that section 3848 does not require that the accused shall be accorded a preliminary...