The State v. Weyland

• Decision Date: 02 December 1907
• Citation: 105 S.W. 660,126 Mo.App. 723
• Parties: THE STATE OF MISSOURI, Respondent, v. J. R. WEYLAND et al., Appellants
• Court: Kansas Court of Appeals

105 S.W. 660

126 Mo.App. 723

THE STATE OF MISSOURI, Respondent, v. J. R. WEYLAND et al., Appellants

Court of Appeals of Missouri, Kansas City

December 2, 1907

Appeal from Jasper Circuit Court.--Hon. Hugh Dabbs, Judge.

REVERSED.

Judgment reversed.

Cole Burnett & Williams for appellant.

(1) Information in a criminal case, when not based upon the affidavit of a person having knowledge of the commission of a crime (Laws 1901, p. 139), are required by the statute to be verified. R. S. 1899, sec. 2477. (2) The first and second counts in the information in this case were not in any legal sense verified by the oath of the prosecuting attorney. Each count charged an independent statutory offense, each inconsistent with the other. The attempted verification of second count nullifies the attempted verification of first count. Such verification nullifies itself, is nugatory and abortive. Anderson's Dictionary of Law (1891), page 1087; 2 Bouvier's Law Dictionary (1878), pages 635, 636. Consult the word verify in the academic and general English Dictionaries: 8 Century Dictionary & Cyclopedia, 6728 Webster's Unabridged and International Dictionary Standard Dictionary of the English Language, 2002; Universal Dictionary. (3) "The information not having been verified as the statute (secs. 2477, 2478, R. S. 1899) requires, and this failure having been brought to the attention of the circuit court by a timely demurrer, which was overruled and exception saved, and the point having been renewed in the motion for new trial and in arrest, the judgment must be reversed on this ground, and the defendant discharged." State v. Bonner, 178 Mo. 424; State v. Schnettler, 181 Mo. 173; State v. McGee and McGraw, 181 Mo. 315; State v. Sheridan, 182 Mo. 13.

H. C. Compton, for respondent, filed no brief.

OPINION

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 count 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. Bonner, 178 Mo. 424, 77 S.W. 463; State v. Schnettler, 181 Mo. 173, 79 S.W. 1123; State v. McGee, 181 Mo. 312, 80 S.W. 899; State v. Sheridan, 182 Mo. 13, 81 S.W. 410.]

It has been held that a paper purporting to be an affidavit for an attachment stating that the debtor was about to assign or conceal "any of his property," was not such a paper as could be termed an affidavit. [Miller v. Munson, 34 Wis. 579; Goodyear Rubber Co. v. Knapp, 61 Wis. 103, 20 N.W. 651.] By way of illustration of the incongruities of separate counts in criminal proceedings, it was held in Butler v. State, 25 Fla. 347, 6 So. 67, that "Where two counts of an indictment charge a sale of liquor without license, and another count charges a violation of the local option law, the two sets of counts are irreconcilably repugnant, and the indictment is insufficient in law."

In State v. Boggess, 86 Mo.App. 632, the affidavit of the prosecuting witness was for a violation of the dramshop law. The information recited that the prosecuting attorney filed it on the affidavit of the prosecuting witness and on his information and belief; and in separate counts it charged a sale of liquor in...