State v. Schnettler
| Decision Date | 23 March 1904 |
| Citation | 79 S.W. 1123,181 Mo. 173 |
| Parties | THE STATE v. SCHNETTLER, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. W. B. Douglas Judge.
Reversed and remanded.
S. S Bass and Willis H. Clark for appellant.
(1) Defendant's motion to quash the information herein, or the motion to arrest the judgment upon the ground that the information was not verified either by the oath of the circuit attorney or of some person competent to testify as a witness, or upon the ground that it was not based upon the affidavit of some private person filed with the clerk of the court as required by law, should have been sustained. State v. Bonner, 178 Mo. 424; State v Balch, 178 Mo. 392. (2) The motion to quash the information, because it is indefinite, vague and uncertain, and because it charges no offense under the laws of the State of Missouri, should have been sustained. The information in this case is in its charging parts on all fours and to all intents a copy of the indictment in the case of the State of Missouri v. Meysenburg, 171 Mo. 1. (3) The evidence of the Murrells and Geo. F. Robertson, respecting other transactions indicating the commission of other offenses, should not have been allowed in evidence against the defendant herein. This evidence is not within the exceptions. State v. Spray, 174 Mo. 569. (4) The instructions given by the court are broader than the information, and comment upon the evidence.
Edward C. Crow, Attorney-General, and Sam B. Jeffries, Assistant Attorney-General, for the State.
(1) The information in this case directly charges that the agreement was made by the defendants therein named and with the Suburban Railway Company that the said company would pay to the said defendants the sum of seventy-five thousand dollars upon consideration and agreement that they, the defendants, would cast their official vote as members of the House of Delegates in favor of the passage of said Council Bill No. 44. By this charge nothing is left for implication or intendment. It is plain, clear and direct, and fully meets all criticisms pertinent to the indictment in the Meysenburg case. (2) It was not error for the court to permit the State to prove that the defendant had received $ 2,500 as a bribe to induce him to cast his official vote in favor of a bill previously pending before the House of Delegates affecting the lighting of the public streets of St. Louis, commonly known as the "Lighting Bill," and in this connection known as the "Lighting Deal." When this evidence is considered along with the defense interposed that the combination was for lawful purposes, we see no reason why its admissibility should be attacked, because it brings into question the propriety and legality of the purpose and object of the combine, and therefore bears directly upon the three elements essential to the case at bar, to-wit: motive, intent and identity. State v. Wolfe, 15 Mo. 168; State v. Mix, 115 Mo. 153; Tracy v. McKinney, 82 Mo.App. 506; State v. Rosenburg, 162 Mo. 558; State v. Philips, 160 Mo. 503; Wharton's Crim. Evid. (9 Ed.), 48. The evidence, showing that the combination was for the purpose of enabling the members of the combine to prostitute their respective offices, was competent to show the real purposes of the combine. And the evidence that the defendant by means of the combine had previously received money in payment for his vote upon the lighting deal, would be competent to connect him with the crime charged in this information, and constitute him in part the principal of Kratz and Murrell, in the execution of their criminal agreement with Stock and Turner. State v. Meyers, 82 Mo. 558; State v. Phillips, 160 Mo. 506; State v. Bain, 88 Mo. 604; State v. Minton, 116 Mo. 605; State v. Boss, 136 Mo. 103; 1 McClain's Crim. Law, sec. 615. The admissibility of the testimony in question falls within the line of the rule in criminal law that where other property is stolen at the same time (through the same unlawful combine, conspiracy or means) by defendant, such facts may be shown in evidence as a part of the res gestae, although such evidence might, as in this case, be an independent crime. McClain's Crim. Law, sec. 615; People v. Ross, 65 Cal. 104; People v. Griffin, 86 Ga. 257; State v. Flynn, 124 Mo. 480. (3) No serious objection is made to the instructions. It is true defendant's counsel, in their brief, contend that the instructions given by the court are broader than the information and comment upon the evidence. No particular reference is made to such instructions as are claimed by the defendant to be broader than the information and which comment upon the evidence.
Joseph W. Folk, Circuit Attorney, also for the State.
(1) Even if the procedure provided for by sections 2477 and 2478, Revised Statutes 1899, be mandatory, there is nothing in this record to show such procedure was not had. Under sections 2477 and 2478 informations may be predicated on (a) verification by oath of prosecuting attorney; (b) by the oath of some competent witness; and (c) affidavit filed with the clerk of the court by some person having knowledge of the facts. The affidavit filed with the clerk certainly is no part of the information. The defendant filed a motion to quash, saying: 1. The information was not sworn to by the circuit attorney. 2. Because no affidavit was filed with the clerk. It will be observed that nothing was said in this motion as to the information not being based on affidavit of some competent witness. The two grounds of objection stated in the motion might be true, and still the information may have been based on the affidavit of a competent witness. The situation is the same as if the law only provided one basis for information, to-wit, affidavit of witness, and there had been no motion to quash. When the statute permits a thing to be done in either one of three ways, an objection that two of the methods were not followed would be insufficient, for non-constat, the third might have been followed. The case is the same, therefore, as if no motion to quash had been filed in this respect. If no motion had been filed, any defect of this nature, it is quite clear, was waived. (2) Further, it will be observed that the statute permits an information to be predicated on an affidavit filed with the clerk. This affidavit is no more a part of the information than the evidence before a grand jury is part of an indictment. Whether or not there was such an affidavit was a question of fact. A mere allegation in a motion to quash is not proof of the fact. There must be evidence to establish the fact, if it was a fact. The defendants offered no proof on this subject, and, so far as this record shows, there was such an affidavit filed with the clerk, for the law presumes that is done which is required to be done. The trial court having overruled the defendant's motion, it must be presumed he found the facts against defendant's contention. There is nothing whatever in the record from which this court could find an affirmative fact that no affidavit was filed with the clerk. The trial judge having overruled the motion to quash, in the absence of a showing to the contrary, this court will presume that the trial court proceeded regularly and in conformity to the law. State v. Brown, 75 Mo. 317. (3) Even if there had been no affidavit filed with the clerk, as the information is on the official oath of the prosecuting attorney, it is sufficient. The constitutional amendment of 1900 provides for information in felony cases. The Constitution, article 2, section 12, gives the power to file informations in misdemeanor cases. Section 2477, R. S. 1899, provides that all informations shall be verified by the oath of the prosecuting attorney or some one else, etc. This provision has been on the statute books for many years, but was amended so as to include felonies in 1901. The effect of this so-called procedure statute in connection with the Constitution has been considered by our courts many times in cases of misdemeanor. The uniform ruling, with few exceptions, has been that the information provided by the Constitution is the common law information upon the official oath of the prosecuting attorney, and that when so filed it is sufficient notwithstanding the statute. State v. Hart, 47 Mo.App. 654. The prosecuting attorney may file informations upon official oath, notwithstanding the statute. State v. Flethall, 31 Mo.App. 300; State v. Ramsey, 52 Mo.App. 668. The affidavit is immaterial and unnecessary. State v. Sweeny, 56 Mo.App. 409; State v. Parker, 39 Mo.App. 116. The prosecuting attorney might have disregarded the affidavit and filed the information under his oath of office. State v. Boggess, 86 Mo.App. 632. The term, information, as used in the Constitution (art. 2, sec. 12), is the common law information, that is such as presented by the Attorney-General or Solicitor-General of England on his official oath. No verification is necessary. State v. Kelm, 79 Mo. 515. State v. Ransberger, 106 Mo. 135; State v. Russell, 88 Mo. 648; State v. Kelm, 79 Mo. 515; State v. Brisco, 80 Mo. 643; State v. White, 55 Mo.App. 556. The decisions are practically uniform that sections 2477 and 2478, providing a method of procedure in informations, are directory at most. Now comes the recent case of State v. Bonner, 178 Mo. 424, holding that an information is invalid unless sworn to by some one. We respectfully submit that this case is contrary to all the other decisions of this court, and contrary to the...
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