Ex parte Olden , 1889 Mo. App. LEXIS 336 ( 1889 )

Rombauer, P. J.,

delivered the opinión of the court.

The petitioners were convicted of petit larceny in the St. Louis court of criminal correction, and sentenced to imprisonment in the city workhouse for the term of six months. While in the transient custody of the sheriff, they sued out this writ against that officer, claiming that the court, before which they had been tried, had no jurisdiction, and that they are illegally restrained of their liberty. The sheriff made return purporting to show that they were convicted upon information duly filed and verified, and that the trial court had full jurisdiction in the premises. The entire-controversy turns upon the sufficiency of the verification.

The information is filed by the assistant prosecuting attorney of the St. Louis court of criminal correction, .and is verified by one Barber only, who “upon his oath says that the facts stated in the above information are true, according to his best knowledge and belief.” The point made by the petitioners is that the addition of the words, “according to his best knowledge and belief,” renders the verification equivalent to one upon information merely; that under the constitution of this state, the information must be supported by oath or affirmation, and under Revised Statutes, section 1762, that oath or information, “unless made by the prosecuting attorney,” cannot be upon information and belief.

We issued the writ in the first instance, because the petitioners made a prima facie showing under the habeas corpus act. We did so in Ex parte Boenninghausen, 21 Mo. App. 267. For the reasons fully stated in that case we must decline to .pass on the merits of this application.

Under the constitution of this state, the supreme court has exclusive appellate jurisdiction of all questions involving the construction of the constitution of the United States, or of this state, and, while we have the power to determine constitutional questions in cases wherein this court has original jurisdiction, we have fully shown the inadvisability of so doing in Ex parte Boenninghausen, supra. The only difference between that case and the present is that in this case the prisoners’ appeal would prima facie lie to this court, while in the Boenninghausen case it would have lain to the supreme court; that fact, however, is immaterial, in view of the further fact, that this case, like the Boenninghausen case, involves constitutional questions of which the supreme court has exclusive appellate jurisdiction.

In determining the meaning of the phrase “involving the construction of the constitution” as affecting the jurisdiction of this court, we have repeatedly held that, in order to oust this court of its appellate jurisdiction, the constitutional question should be one which is at least fairly debatable. In the recent case of State ex rel. Campbell v. St. Louis Court of Appeals, the supreme court, 97 Mo. 276, disapproved of this definition, holding that this court is ousted of its appellate jurisdiction when the constitutional question is one fairly raised on the record and is not a mere sham. Accepting that definition as conclusive, we must hold that we would have no appellate jurisdiction in this case, as the constitutional questions arising upon the record cannot be designated as mere shams, in view of the fact that the supreme court and this court have arrived at different conclusions touching their merits. State v. Zeppenfeld, 12 Mo. App. 574; State v. Fitzporter, 17 Mo. App. 271; State v. Kaub, 19 Mo. App. 149; State v. Clarke, 54 Mo. 17; State v. DeBar, 58 Mo. 395; State v. Hayes, 81 Mo. 574; State v. Bennett, decided March 18, 1889, and not yet reported. (11 S. W. Rep. 264. )

It thus appears that if we are to abide by our rulings in the Boenninghausen case, we must decline passing on the merits of this application, and remit the petitioners to the jurisdiction of a conrb which has general original jurisdiction, or exclusive appellate jurisdiction of constitutional questions.

Having said this, we might stop. As, however, the writ of habeas corpus is a writ of liberty, we do not desire to be placed in the position of having denied its benefit to a prisoner in any case, where his right is clear, and we have the power to entertain jurisdiction, on the sole ground of the questionable propriety of our so entertaining it. We are therefore justified to add that we are inclined to hold that the result would be the same, if we undertook to pass upon the case upon its merits. The oath of the affiant is that the information is true. The affidavit does not purport to be based upon the information of the witness, which maybe mere hearsay, but upon his best knowledge and belief. We cannot see how the mere addition of the words, “to the best of his knowledge and belief, ” is in any way indicative of the fact that the affiant has no knowledge on the subject. The statute does not prescribe the form of the oath, but simply provides it shall be the oath of some person competent to testify, who has knowledge of the facts stated in the charge, as distinguished from mere hearsay information. It will, be noticed that these informations not only state the doing of certain acts, but the intent with which the act was done, and that such intent was felonious under the statute, on which latter subjects the utmost that can be required of any witness is an honest belief. If the oath to these informations is to be made in a-form, which constitutes the affiant a warrantor of the truth of all the facts therein stated, prosecutions by information might better at once be abandoned. While on the one hand a citizen should not be deprived of his liberty on a mere rumor, which may have no more foundation than neighborhood talk, on the other hand the prosecution of criminals should not be made impracticable, or next to impossible. The. protection of the law should be accessible alike to the alleged criminal and the alleged victim.

We have examined the manuscript opinion of the supreme court in State v. Bennett, supra, but find nothing therein which is opposed to the views herein expressed. The information in that case is fully set out in the opinion, and does not purport to be verified by any one. That the original record in the case shows that the information was verified in a manner similar to the informations complained of in this case can make no difference, since the supreme court could pass only on the record as it appeared by the transcript before it, and not on the original record which it presumably never saw.

It results from the foregoing that the prisoners must be remanded to the custody of the sheriff.

All the judges concurring,

it is so ordered.