State v. Simpson ( 1907 )

JOHNSON, J.

The prosecuting attorney of Sullivan county filed an information charging the defendants (five in number) with disturbing the peace of a neighborhood. Afterward, an amended information was filed which contains two counts. The charge in the first is substantially the’ same as that made in the original information. In the second, defendants are charged with disturbing the peace of certain designated persons. A severance of the parties defendant was granted, and each trial resulted in the return of a general verdict of guilty.

All of the defendants appealed to the circuit court where, by appropriate motions, they raised the questions of law we now are called on to decide. The motions were overruled. The State then dismissed the first count and the cases were consolidated and tried as one. Defendants were convicted on the second count and, after unsuccessfully moving for a new trial and to arrest the judgment, appealed to this court.

First, it is argued by defendants that to disturb the peace of a neighborhood is by statute made a separate and distinct offense from that of disturbing the peace of individuals (section 2159, Revised Statutes 1899) and, therefore, that the State should not have been permitted to amend the original information by adding thereto the charge stated in the second count of the amendment. We must rule this point against defendants. Both counts deal with the same transaction — the same criminal matter — are founded on the same section of the statute, call for the same punishment, and were framed to meet different phases of proof that might develop at the trial. Under these circumstances, the amendment was permissible. [State v. Haycroft, 49 Mo. App. 488; State v. Pitts, 58 Mo. 556; State v. Bean, 21 Mo. 269; State v. Sutton, 64 Mo. 107; State v. Gilmore, 110 Mo. 1.]

Further objection is made that as the verdict in the justice court did not specify the count on which defendants were found guilty, the presumption must be indulged that they were acquitted on one of the counts, and as the circuit court could not know on which charge they should be called to stand trial, the prosecution must fail. This contention was squarely answered in State v. Haycroft, supra, where we held that “when there is but one offense charged in separate counts, a general verdict is sufficient.”

Finally, the amended information is challenged on the ground that it was not verified by the oath of the prosecuting attorney. It has been held repeatedly that an information presented to a justice of the peace is not required to be thus verified. [State v. Ransberger, 42 Mo. App. 466; State v. Ransberger, 106 Mo. 135; State v. Pruette, 61 Mo. App. 156; State v. O’Kelley, 121 Mo. App. 178, 98 S. W. 804.]

The judgment is affirmed.

All concur.