State v. Decker

83 S.W. 1082, 185 Mo. 182, 1904 Mo. LEXIS 308

• Court: Supreme Court of Missouri
• Decided: December 13, 1904
• Status: Published

Opinion

POX, J.

“The defendant in this case was convicted of the crime of perjury, and sentenced to four years’ imprisonment in the penitentiary. The circuit attorney of the city of St. Louis filed an information charging the defendant with having committed perjury while testifying before the grand jury of the city of St. Louis in reference to the widely-circulated and well-known bribery matters occurring in that city within the last few years. ”

Prom this judgment of conviction defendant in due time and proper form prosecuted his appeal to this court, and the cause is now before us for consideration.

OPINION.

This prosecution is based upon an information filed by the circuit attorney- of the city of St. Louis, charging the defendant with the offense of perjury..

The record discloses that the information was not verified by the oath of the circuit attorney, nor was it based upon the affidavit of some person competent to testify, filed therewith, nor was it verified by some person competent to testify. Counsel for appellant filed a timely motion to quash, the information, assigning as grounds for such motion the absence of any verification of the information, as is required by the statute (secs. 2477, 2478, R. S. 1899), as amended by the acts of 1901 (Laws 1901, pp. 138, 139).

This motion to quash was by the trial court overruled, to which action of the court defendant at the time duly excepted.

The failure of the circuit attorney to properly verify the information was again called to the attention of the court at the conclusion of the trial in the motion for new trial. This motion was likewise overruled, and the exceptions to the action of the court in overruling appellant’s motion herein referred to; were duly preserved, as is shown by the record before us. Following former rulings by this court-upon this proposition, this cause must be reversed.

The Attorney-General, with his usual commendable frankness, concedes the error of the trial court and thus gives expression to his reasons for such concession :

“This case must necessarily be reversed for the reason that the information was not properly verified by the circuit attorney, nor was it based upon the affidavit of some person competent to testify, filed therewith, nor was it verified by some person competent to testify. In fact, neither one of the three statutory requirements necessary in order to make the information valid was complied with. [State v. Bonner, 178 Mo. 424; State v. Collins, 181 Mo. 235; State v. Schnettler, 181 Mo. 173; State v. Brown, 181 Mo. 192.]”

. For the errors herein indicated, the judgment of the trial court is reversed, and the cause remanded.

Gantt, P. J., concurs; Burgess, J., absent. •