State v. Sykes
| Decision Date | 01 December 1920 |
| Citation | 225 S.W. 904,285 Mo. 25 |
| Parties | THE STATE v. JOHN SYKES et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Perry Circuit Court. -- Hon. Peter H. Huck, Judge.
Reversed and remanded.
Edward Robb for appellants.
The information in this case is not verified by the oath of the prosecuting attorney, or by the oath of some person competent to testify as a witness in the case, or supported by the affidavit of such witness. The complaint filed before the justice of the peace, for the purpose of preliminary examination, having served its purpose, could not supply the place of the required statutory oath, or affidavit. The motion to quash the information should, therefore, have been sustained. State v. Lawhorn, 250 Mo. 293.
Frank W. McAllister, Attorney-General, and J. W. Broaddus Assistant Attorney-General, for respondent.
The information in this case is not verified by the oath of the prosecuting attorney, or by the oath of some other person competent to testify as a witness in the case, nor is it supported by the affidavit of such witness filed with the information. Appellant specifically called the court's attention to this defect in his motion to quash the information, but to no avail and has properly preserved the point for review. In view of the fact that this court passed upon this identical question in the case of State v Lawhorn, 250 Mo. 293, and that the statute (Sec. 5057 R. S. 1909) then in force remains the same, we feel constrained to admit the error complained of and suggest that the judgment be reversed and the cause remanded.
Appellants were charged by information in the Circuit Court of Perry County with robbery in the first degree. Upon a trial they were found guilty and their punishment assessed in each instance at five years' imprisonment in the penitentiary. From this judgment they appeal.
A complaint verified by the oath of the prosecuting witness was filed before a justice of the peace charging appellants with the offense stated. This complaint, with the other papers in the case, was, after the preliminary examination, transmitted to and lodged with the Clerk of the Circuit Court. The prosecuting attorney thereupon filed an information stated to be on his oath of office, but not so verified. Nor was it verified by the oath of some person competent to testify as a witness. This was not a sufficient compliance with Section...
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