State v. Webster

• Citation: 206 Mo. 558,105 S.W. 705
• Parties: STATE v. WEBSTER.
• Decision Date: 19 November 1907
• Court: United States State Supreme Court of Missouri

105 S.W. 705

206 Mo. 558

STATE v. WEBSTER.

Supreme Court of Missouri, Division No. 2.

November 19, 1907.

1. CRIMINAL LAW — SUMMARY TRIAL — INFORMATION — JUSTICES' COURTS.

The failure of a prosecuting attorney to allege in an information in a justice court that it was made upon his oath of office did not invalidate the information, all his acts being presumed to have the sanction of his official oath, and the provision of the statute (Rev. St. 1899, § 2750 [Ann. St. 1906, p. 1604]), relating to procedure in such court, which provides for the filing of such information upon oath of office, being surplusage.

2. SAME—VERIFICATION.

In prosecutions before a justice of the peace by information, the information need not be verified, as Rev. St. 1899, § 2477 [Ann. St. 1906, p. 1487], requiring the verification of informations, is not applicable to justices' courts, and section 2750 [Ann. St. 1906, p. 1604], relating to the procedure in such courts, does not require it.

3. SAME—FORMER JEOPARDY—ACQUITTAL.

After denial of motion to quash an information for disturbing the peace of a certain person, both the state and defendant announced ready for trial. The jury was impaneled and sworn. The state introduced evidence, and defendant filed a demurrer thereto which was sustained, the information quashed, the jury dismissed, and defendant held for further prosecution, to which defendant objected, insisting that he be finally discharged. Held, that the action of the court amounted to an acquittal, and was a bar to further prosecution for the offense embraced in the information, under section 23, art. 2, of the Bill of Rights [Ann. St. 1906, p. 158], which declares that no person after being once acquitted by a jury shall be again put in jeopardy of life or liberty.

4. SAME—BASIS OF PLEA.

Where a jury was impaneled and sworn, and the state introduced its evidence, it was sufficient to constitute former jeopardy, whether or not the court was correct in sustaining the demurrer to the state's evidence.

Appeal from Circuit Court, Grundy County; Geo. W. Wannamaker, Judge.

William Webster was convicted of disturbing the peace of a person, and appeals. Reversed, and defendant discharged.

This cause is brought to this court upon appeal by the defendant from a judgment of the circuit court of Grundy county convicting him of a misdemeanor—that of disturbing the peace of a person. The defendant in this cause in the trial court filed a plea in bar, which consisted of a recitation of the record, which defendant insists shows that he had formerly been put in jeopardy for the same alleged offense upon which this judgment is predicated, and he invokes the constitutional provision that "no citizen shall be twice put in jeopardy for the same offense, and that no person shall be deprived of liberty or property without due process of law," and it is under that state of the record by which this court has jurisdiction. This constitutional question having been expressly raised and invoked in the trial court, and the action of the trial court upon the plea in bar being the main question involved in this proceeding, it is appropriate to briefly state the facts relating to the basis of such plea.

In April, 1904, William Wingate, the father of Lena Wingate, filed an affidavit before a justice of the peace, charging in said affidavit that defendant, Webster, did disturb the peace of his daughter, Lena Wingate, referring to the occasion of defendant's dispute with Terry. On this affidavit the prosecuting attorney filed his information charging that the defendant, Webster, at said time did disturb the peace of said Lena Wingate. Afterwards, and in June, 1904, the defendant, Webster, was tried before the justice of the peace, found guilty, and adjudged to pay a fine of $1 for disturbing the peace of Lena Wingate. From that judgment of conviction the defendant appealed to the circuit court of Grundy county. In the circuit court the defendant first filed a motion to quash the information on the ground that William Wingate, on whose affidavit the information was based, had no personal knowledge of any disturbance of the peace or any other offense, and that he, therefore, was not a competent person on whose affidavit to base an information, and, although it was conceded that William Wingate had no such personal knowledge, the circuit court held the information sufficient in law. The prosecution thus begun before the justice of the peace was then tried de novo in the circuit court. A jury was impaneled, and the state having introduced testimony in the cause and rested, defendant offered a demurrer to the testimony, and it appearing to the court that the prosecuting witness, William Wingate, upon whose affidavit the information was based, was not present at the time of the alleged offense, and had no actual or personal knowledge of the offense, the demurrer was sustained, and the information quashed, and the court dismissed the jury, and ordered that the defendant be held for further prosecution, to all of which the defendant objected, and insisted on his demurrer being sustained, and that he be finally discharged. Afterwards, and on the same day, the present information (the second information) was filed in the circuit court, based on the affidavit of Lena Wingate, charging the defendant with the same offense against Lena Wingate, the same person charging the same offense for which the defendant had been tried in the justice court, and for which he had been put on trial in the circuit court, and his demurrer sustained, and the jury dismissed, as aforesaid. To this second information defendant pleaded former jeopardy. This plea is thus stated in the record:

"Now comes the defendant, William Webster, in his own proper person, having seen and heard the information filed against him, in this cause, by the prosecuting attorney, on the affidavit of Lena Wingate, on October 3, 1904, said information having been originally filed in the office of the clerk of the circuit court of Grundy county in term time, and, for his plea and answer to said information, states the following facts: On April 20, 1904, there was filed before W. B. Linney, a justice of the peace, the following:

"`Affidavit. Before W. B. Linney, Justice of the Peace in and for Trenton Township, Grundy County, Missouri. State of Missouri, County of Grundy—ss. W. M. Wingate, being duly sworn, upon his oath states that on or about the ____ day of April, 1904, one William Webster, late of said county, did at Grundy county, Missouri, willfully and unlawfully disturb the peace of Lena E. Wingate and divers other persons then and there being, by loud and unusual noise, by loud and indecent language and conversation, by threatening, quarreling, challenging and fighting, against the peace and dignity of the state.

                                           his
                                    "`W. M. X Wingate
                                          mark
                

"`Subscribed and sworn to before me this 20th day of April, A. D. 1904. W. B. Linney, Justice of the Peace.'

"Afterwards and on June 7th, 1904, the prosecuting attorney of Grundy county filed with said justice of the peace the following:

"`Information. State of Missouri, County of Grundy—ss. Before W. B. Linney, a Justice of the Peace within and for Trenton Township, Grundy County, Missouri. State of Missouri, Plaintiff, vs. William Webster, Defendant. Comes now C. J. Bain, prosecuting attorney for Grundy county, Missouri, and upon the affidavit of William Wingate, heretofore filed with the justice herein, informs the justice and his court that on the ____ day of ____, A. D. 1904, at Grundy county, Missouri, one William Webster did then and there unlawfully disturb the peace of Lena W. Wingate and Chas. Terry by loud and unusual noise, by indecent conversation, by threatening, quarreling, and challenging, against the peace and dignity of the state. Claud J. Bain, Prosecuting Attorney for Grundy County, Missouri.'

"On June 8th, 1904, the defendant was duly arraigned, and tried before said justice of the peace and fined one dollar ($1).

"Afterwards, and on the same day, the defendant duly filed his affidavit and recognizance in appeal, and said justice granted defendant an appeal to the Grundy circuit court, and said cause was duly transferred by appeal to said court, and on June 14th, A. D. 1904, said justice of the peace duly filed his transcript in the office of the clerk of the circuit court of Grundy county. On Monday, October 3, 1904, the prosecution and cause which had so originated before said justice of the peace, and which had been appealed, was duly pending in the Grundy circuit court; and the Grundy circuit court had jurisdiction of said cause; and said cause was duly docketed and set for trial on Monday, October 3d, A. D. 1904. Both parties announced ready for trial. Defendant was arraigned and pleaded not guilty. A jury was duly impaneled and sworn to try said cause, and a true verdict render according to the law and the evidence. The prosecution read the information to the jury, made an opening statement of its case, and, to prove and maintain said issues on its part, called several witnesses who were duly sworn as witnesses on the part of the state and testified as such; after the testimony of its witnesses, the prosecution announced that it rested its case. Further proceedings in said cause on said day are shown by the following copy of the record of the Grundy circuit court in hæc verba: State of Missouri, Plaintiff, vs. William Webster, Defendant. Seventh Day, Monday, October 3rd, 1904. Defendant filed motion to quash, which was taken up, by the court considered, and by the court overruled. State of Missouri, Plaintiff, vs. William Webster, Defendant. Defendant appears in open court and waives formal arraignment and pleads not guilty. State of Missouri, Plaintiff, vs. William Webster, Defendant. Parties answering ready for trial, there came the following jury, to...