State v. Weyland

• Decision Date: 06 May 1907
• Citation: 105 S.W. 660,126 Mo. App. 723
• Parties: STATE v. WEYLAND.
• Court: Missouri Court of Appeals

105 S.W. 660

126 Mo. A. 723

STATE v. WEYLAND.

Kansas City Court of Appeals. Missouri.

May 6, 1907.

Rehearing Denied December 2, 1907.

1. PLEADING—VERIFICATION.

Where an affidavit is required to a pleading, the pleading must be such upon its face as may be sworn to as true.

2. INFORMATION — VERIFICATION — INCONSISTENT COUNTS.

Where an information for selling intoxicating liquors on Sunday charges defendant in one count with such selling as a licensed dramshop keeper at a certain time and place, and in another count with such selling, not being a licensed dramshop keeper at the same time and place, the verification thereof by the prosecuting attorney is ineffectual, since to swear to two statements in a pleading, one of which absolutely contradicts the other, is equivalent to a failure to verify altogether.

3. SAME—FAILURE TO VERIFY.

Failure to verify an information in a prosecution for selling intoxicating liquors avoids a conviction thereunder.

4. SAME — STATUTORY PROVISIONS — REPUGNANCY.

Rev. St. 1899, § 2481, 2535 [Ann. St. 1906, pp. 1490, 1509], providing that trials will not be disturbed or judgments arrested for a repugnant allegation when there is sufficient matter alleged to indicate the crime and the person charged, do not authorize a conviction under an information containing such a contradiction as to negative a crime, or as not to indicate the particular crime charged.

5. SAME—ELECTION BETWEEN COUNTS.

The affidavit verifying an information must be tested by the matters to which it applies, and, where the information contained counts so contradictory as to render the verification ineffectual, the fact that the state on the opening of the trial abandoned all the counts in the information except one, which was consistent with itself, does not render the verification effectual.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

J. R. Weyland was convicted of being a licensed dramshop keeper and selling intoxicating liquors on Sunday, and appeals. Reversed.

Cole, Burnett & Williams, for appellant. H. C. Compton, for the State.

ELLISON, J.

The defendant was convicted of being a licensed dramshop keeper and selling intoxicating liquor on Sunday. He has brought the case here by appeal.

The prosecuting attorney of Jasper county filed an information against the defendant verified by his oath. It contained three counts. The first charged that defendant was a licensed dramshop keeper on Sunday, the 18th day of March, 1906, and that on that day he sold intoxicating liquor at such dramshop. The second charged a different offense, in that he sold the liquor on that day, and that he was not a licensed dramshop keeper. The third charged that he sold liquor on that day, but does not allege anything as to his having a license or of his being a dramshop keeper. At the foot of the information following his signature is the prosecuting attorney's affidavit "that the facts stated in the foregoing information are true according to his best information and belief." The defendant demurred to the information, and the demurrer was overruled. At the opening of the trial the state elected "to stand on the first count," but no new verification was made.

It will be observed that the information, as a whole, presents the strange anomaly of charging defendant with being a licensed dramshop keeper at a certain time and place, and with not being a licensed dramshop keeper at the same time and place. The first and second counts are point-blank contradictions, each of the other. If we assume that in ordinary pleading different counts may state the same transaction, or act, in different ways, so as to cover the case made by the evidence, yet where, as here, a criminal pleading is required to be sworn to, in order to constitute a valid charge, it cannot be that it is allowable for it to contain directly contradictory statements of facts vital to the charge. Where an affidavit is required to a pleading, the latter must be such a paper as, upon its face, may be sworn to as true. If the paper on its face discloses that it is impossible to swear to it, within the bounds of truth, it is not a proper pleading. While different counts may charge separate offenses, and in that sense may be independent of each other, yet it must be borne in mind that here, while there are different counts, there is but one affidavit which is made to cover the entire information. While the pleading is separated, the affidavit is in solido and affirms the truth of each division. To swear to two statements, one of which absolutely contradicts the other, is, at least, tantamount to a failure altogether to verify; and it has been a number of times recently held that a failure to verify an information avoided a conviction thereunder. State v....