State v. Sykes , 285 Mo. 25 ( 1920 )

Appellants were charged by information in the Circuit Court of Perry County with robbery in the first degree. Upon a trial they were found guilty and their punishment assessed in each instance at five years' imprisonment in the penitentiary. From this judgment they appeal.

A complaint verified by the oath of the prosecuting witness was filed before a justice of the peace charging appellants with the offense stated. This complaint, with the other papers in the case, was, after the preliminary examination, transmitted to and lodged with the Clerk of the Circuit Court. The prosecuting attorney thereupon filed an information stated to be on his oath of office, but not so verified. Nor was it verified by the oath of some person competent to testify as a witness. This was not a sufficient compliance with Section 5057, Revised Statutes 1909, which provides that: "Informations may be filed by the prosecuting attorney as informant during term time, or with the clerk in vacation, of the court having jurisdiction of the offense specified therein. All informations shall be signed by the prosecuting attorney and be verified by his oath or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person, which shall be filed with the information; the verification by the prosecuting attorney may be upon information and belief. The names of the witnesses for the prosecution must be indorsed on the information, in like manner and subject to the same restrictions as required in case of indictments."

In construing this statute in State v. Lawhorn, 250 Mo. 293, we hold that the verification of the complaint filed with the justice of the peace and transmitted by him to the circuit court did not meet the requirements of the statute, but that it was necessary to a compliance therewith that an information be filed by the prosecuting attorney verified by his own oath or that of someone competent to testify as a witness in the case. The procedure in the instant case was in no wise different from that in State v. Lawhorn, supra, which met with our dissapproval.

The error noted, which is conceded by the Attorney-General, will, therefore, necessitate a reversal and remanding of this case. It is so ordered. All concur.