State v. Wilkson

• Decision Date: 14 May 1889
• Citation: 36 Mo. App. 373
• Parties: THE STATE OF MISSOURI, Appellant, v. JOHN WILKSON, Respondent.
• Court: Missouri Court of Appeals

36 Mo. App. 373

THE STATE OF MISSOURI, Appellant, v. JOHN WILKSON, Respondent.

Missouri Court of Appeals

MARCH TERM, 1889

May 14, 1889

1. Criminal Law: INFORMATION: DRUGGISTS. The information filed before a justice of the peace for a violation of the law of 1885, governing druggists in the sale of intoxicating liquors, when not made on the oath of a person having personal knowledge of the commission of the offense, must be based on the personal knowledge of the prosecuting attorney.

2. —. An information based on the amendatory act of March 29, 1883, must state that the sale was of a quantity less than one gallon. Such informations must contain all the allegations necessary to be made in an indictment for the same offense.

Appeal from the St. Francois County Circuit Court.—HON. JAMES D. FOX, Judge.

AFFIRMED.

Merrill Pipkin, for the appellant.

The term "information" as used in the constitution of 1875 is to be understood in its common-law sense, i. e., a criminal charge exhibited by the attorney general or other proper officer. State v. Rockwell, 18 Mo. App. 395; State v. Sibecca, 76 Mo. 55; State v. Kelm, 79 Mo. 515; State v. Russell, 88 Mo. 648; Ex parte Thomas, 10 Mo. App. 24; 1 Bish. Crim. Proc., secs. 604, 611. The requirement of the statute (Laws of 1885) authorizing the prosecuting attorney to make such information "under his oath of office" was superfluous, as such officer, while acting in his official capacity, in all prosecutions, is supposed by the law to be acting under his oath of office. State v. Fletchall, 31 Mo. App. 296; State v. Sickle, Brayton, 132.

BIGGS, J., delivered the opinion of the court.

The prosecuting attorney of the county filed an information against the defendant, before a justice of the peace, by which he sought to charge the defendant with a violation of the law governing druggists in the sale of intoxicating liquors. (Sess. Acts, 1885, p. 89.)

The defendant was tried and convicted before the justice, the jury assessing his fine at the sum of three hundred dollars. The defendant appealed to the circuit court, where the information upon which he was tried and convicted was held to be insufficient and he was discharged. The state has prosecuted its appeal from this judgment.

The information contains four counts, which are the same, except that different offenses are charged. The first count is as follows: "State of Missouri vs. "John Wilkson.

Before Isaac W. Barry, Justice of the Peace.

"Now comes Merrill Pipkin, prosecuting attorney, within and for St. Francois county, and state of Missouri, on behalf of the state of Missouri, and upon his knowledge, information, and belief, gives Isaac W. Barry, justice of the peace, to understand and be informed that John Wilkson, on the twenty-fourth day of December, 1887, at and in the county of St. Francois and state of Missouri, unlawfully then and there did sell, give away, and barter, to a person to this prosecuting attorney unknown, intoxicating liquors, to-wit: whiskey, brandy, wine, orange wine, beer, lager beer, ale, gin, cider, and bitters, without being a regular druggist or pharmacist, furnishing the same on a written prescription, dated and signed, first had and obtained from some regular registered and practicing physician, against the peace and dignity of the state."

The defendant moved to quash the information: First. Because the information of the prosecuting attorney was not based on the affidavit of any person having knowledge of the alleged offense. Second. Because the information was not based on the personal knowledge of the prosecuting attorney. Third. Because the information was not made on the oath of office of the prosecuting attorney.

The statute authorizing this mode of procedure was enacted by the legislature on the thirty-first day of March, 1885. (Sess. Acts, pp. 145 and 146.) By this law, sections 2025, 2026, 2028 and 2054 of the Revised Statutes were repealed and the following substituted, to-wit (sec. 2025): "Prosecutions before justices of the peace for misdemeanors shall be by information, which shall set forth the offense in plain and concise language, with the name of the person or persons charged therewith; provided that if the name of any such person is unknown, such fact may be stated in the information, and he may be charged under any fictitious name; and when any person has knowledge that any offense has been committed that may be prosecuted by information, he may make complaint, verified by his oath or affirmation, before any officer authorized to administer oaths, setting forth the offense as provided by this section, and file the same with the justice of the peace having jurisdiction of the offense, or deposit it with the prosecuting attorney; and whenever the prosecuting attorney has knowledge of the commission of an offense cognizable by a justice of the peace in his county, or shall be informed thereof, by complaint deposited with him as aforesaid, it shall be his duty to file an information with the justice having jurisdiction of the offense, based upon or accompanied by such complaint. Section 2026: And such information shall be made by the prosecuting attorney of the county in which the offense may be prosecuted under his oath of office, and shall be filed with the justice," etc., etc. The italics are our own.

The questions, presented by this record, were passed on by the Kansas City court of appeals in the case of State v. Fletchall, 31 Mo. App. 297. We can not fully concur with Judge PHILLIPS, who delivered the opinion of the court, in his construction of this statute. If we understand the opinion, it was held: First. "That in a case where no complaint was made under the oath of a third person, the prosecuting attorney was not required to make oath to any information lodged by him; that every official act of such an officer was presumed to be under the sanction of his official oath and that the portion of the statute, requiring an information to be sworn to by the prosecuting attorney, was mere surplusage. Second. That the statute did not require such informing officer to set out the source of his information. Third. And it did not require him to state that he had personal knowledge of the commission of the offense."

We are not inclined to differ with the Kansas City court of appeals on the first two propositions, but we can not yield our assent to the last.

We do not think that the legislature intended that the prosecuting attorney should make an affidavit to the truth of the statements made by him in each information, but a fair and reasonable construction of the language employed negatives any such construction. All of his official acts are presumed to have the sanction of his official oath. Nor do we find anything in the statute requiring the officer to state the source or extent of his knowledge on which the information is based. But we do think, that the letter and spirit of the law require such informations to be predicated on the personal knowledge of some one, either the prosecuting attorney, or the informer. The personal knowledge contemplated need not embrace the knowledge of all the facts necessary to establish the guilt of the person sought to be charged, in its entirety, but the person making the complaint, or the prosecuting attorney, ought to have some personal knowledge of some facts and circumstances pointing to the guilt of a defendant. The primary object of the statute is to prevent and suppress crime, but at the same time not to subject persons to prosecutions without probable cause, and in order to prevent the latter, the legislature has required informations before justices of the peace, to be predicated on personal knowledge as distinguished from mere rumor.

The conclusions of Judge PHILLIPS are based on the form and requirements of common-law informations. It is true as stated by him, and so decided in State v. Kelm, 79 Mo. 515, "that the term 'information,' as used in the Constitution of 1875 (art. 2, sec. 12), meant an information in its common-law sense, i. e...