State v. Smith

• Decision Date: 02 July 1924
• Docket Number: No. 3614.,3614.
• Citation: 264 S.W. 52
• Parties: STATE v. SMITH
• Court: Missouri Court of Appeals

264 S.W. 52

STATE v. SMITH

No. 3614.

Springfield Court of Appeals. Missouri.

July 2, 1924.

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Frances Smith was prosecuted for malicious mischief in a justice's court from which an appeal was taken to a circuit court, from whose judgment sustaining defendant's motion to quash an amended information the state appeals. Reversed and remanded and certified to the Supreme Court.

John H. Keith, Pros. Atty., of Ironton, for the State.

B. H. Boyer, of Farmington, for respondent.

BRADLEY, J.

The prosecuting attorney of Iron county filed in a justice of the peace court an information against defendant charging her under section 3383, R. S. 1919, with the offense of malicious mischief. The information was based upon the affidavit of a private individual, and charged that defendant did unlawfully, willfully, and maliciously pull down, injure, and destroy 35 fence posts, etc. The cause reached the circuit court on appeal, and defendant filed a motion to quash alleging that the information and the affidavit upon which it was based failed to charge that the defendant had no interest in the property described. On the filing of this motion the court granted leave to the prosecuting attorney to amend, and the affidavit and information were amended. Defendant thereupon moved to quash the amended information, contending that, since the prosecution originated in a justice of the peace court and was in the' circuit court by appeal, the information and affidavit could not be amended. The court adopted defendant's view, and sustained the motion to quash. The state duly excepted, and after the usual steps appealed.

The amendments, to the affidavit and to the information, were made by interlining at the proper place the following: "And in which said Frances Smith had no interest or control at the time." It does not appear that the affiant to the affidavit was resworn, nor does it appear that he was not. No point whatever is made in this respect. We do not think that the affidavit could in any event be amended, anywhere or at any time, in a matter of substance, except by the affiant. Granting that the amendments were permissible, we think that an amended affidavit embodying the new matter should have been made, and an amended information based thereon, and embodying the new matter, prepared, and the two filed together, or that the affiant, after the amendment of the affidavit by interlineation, should have been resworn, and such fact shown by the record. But, as no point is made in this respect, we pass to the question of law before us.

Is an information originating in a justice of the peace court subject to amendment on appeal to the circuit court? In the following cases it has been held that under such circumstances the information cannot be amended. State v. Stegall, 65 Mo. App. 243; State v. Kemple, 27 Mo. App. 392; Kansas City v. Whitman, 70 Mo. App. 630. The holding in all these cases is based on State v. Russell, 88 Mo. 648. In State v. Wonderly, 17 Mo. App. 598, it was held that such an amendment was allowable, but the Stegall Case called attention to the Wonderly Case and considered that it had in effect been overruled.

In State v. Russell, supra, and in State v. Kanaman, 94 Mo. 71, 6 S. W. 704, the syllabus states that an information originating in a justice of the peace court cannot be amended in the circuit court. But in neither case does the syllabus on this point state the real ruling. In the Russell Case it appears that a private individual filed an affidavit with a justice of the peace charging the defendant with a misdemeanor. The prosecuting attorney filed no information, but the defendant was convicted on this affidavit and appealed. In the circuit court the prosecuting attorney was permitted to file what was designated as an amended information. The Supreme Court held that there was no information to amend. The Kanaman Case is to the same effect. We have made diligent search, but we have found no case where the Supreme Court has ruled directly upon the question in hand. There is language in the Russell Case that tends to support defendant's position in the case at bar. It is there said by Chief Justice Henry:

"I have failed to find in the statute any provision allowing, in an appellate court, en amendment to an information in a case originating in an inferior court."

Following this statement the court says that what was then section 3060, R. S. 1879, now section 2910, R. S. 1919, has no application to criminal proceedings. But when the obiter is eliminated it clearly appears that the only holding in the Russell Case was that where no information had been filed in the justice court such omission could not be supplied in the circuit court under the guise of an amendment.

In section 2910, H. S. 1919, relating to appeals in civil cases from a justice of the peace court, specific provision is...