MULKINS v. UNITED STATES

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MULKINS v. UNITED STATES
1900 OK 75
61 P. 925
10 Okla. 288
Decided: 06/30/1900
Supreme Court of Oklahoma

WM. MULKINS
v.
THE UNITED STATES.

Error from the District Court of Canadian County; before John L. McAtee, District Judge.

Syllabus

¶0 CRIMINAL LAW--Information--Verification of, When Insufficient. A verification on information and belief to a complaint in a criminal case is not sufficient to authorize a court to put the defendant upon trial for the offense charged therein. Such complaint should be sworn to positively or the facts upon which the warrant should issue ought to be presented to the court by affidavit or by competent evidence.

Marsh & Wallace, for appellant.
Horace Speed, United States Attorney; John W. Scothorn and B. S. McGuire, Assistant United States Attorneys, for appellee.

BURWELL, J.:

¶1 The appellant, William Mulkins, was charged by complaint in the district court of Canadian county with the crime of cutting and removing timber from the Caddo Indian reservation. The complaint was verified by Hon. B. S. McGuire, assistant U.S. Attorney, on information and belief only. When the case was called for trial the defendant, by his counsel, objected to the introduction of any evidence, because of the insufficiency of the complaint. After trial, conviction and sentence the defendant filed his motion for a new trial, and after it was overruled by the court he interposed a motion in arrest of judgment, which was also denied. Exceptions were saved to each of these rulings and an appeal taken by transcript to this court.

¶2 The appellant presents just one question to this court, viz: the sufficiency of the verification of the complaint. A verification, on information and belief, to a complaint in a criminal case is not sufficient to authorize a court to put the defendant upon trial for the offense charged therein. Such complaint should be sworn to positively, or the facts upon which the warrant should issue ought to be presented to the court by a positive affidavit, or by competent evidence. ( Miller v. U.S. 7 Ok. 315; 57 P. 386.)

¶3 The complaint was not sufficient. For the reason herein stated the case is reversed and remanded, at the cost of the appellee, and the defendant will be held to await the action of the district court of Canadian county, and said court is hereby directed to grant leave to the United States to properly verify the complaint heretofore filed, or to file a new complaint for such offense.

¶4 McAtee, J., having presided in the court below, not sitting; all of the other Justices concurring.