(after stating the facts). It is proper and essential that we consider what duties are imposed upon the officer here charged with the enforcement of the gaming laws. The statute, as applied to the facts of this case, provides that when it comes to the knowledge of a sheriff that any person is guilty of the offense of operating a gambling device, such sheriff shall give notice thereof to some judge or justice of the peace of the county. When this notice has been given, it becomes the duty of the officer to whom it was given to immediately bring before him, by appropriate process of his court, the person so accused of violating the law, to be dealt with according to the law. This section does not require the sheriff to set the law’s machinery in motion whenever he shall merely have heard of a violation of the law. He is not required to run down every idle rumor, or to act upon information which he may not regard as reliable. He is required to act only when it comes to his knowledge that the law is being violated, and he is guilty of a violation of this statute only when he wilfully refuses to act upon this information. It is of course a question of fact in each case for a jury to determine whether or not a sheriff has this knowledge, and in determining that fact the jury should regard the evidence alleged to constitute the proof of this knowledge from the sheriff’s viewpoint, and, in doing so,' should decide whether this officer, exercising an honest and intelligent judgment, would have knowledge, which in effect here means probable cause, to give notice under this statute of its violation.
But it is said this section is void because the officer was not required- to give this notice under oath and because the Constitution provided that warrants for search and seizure can be issued only upon oath or affirmation. But such is not the case. Only officers can give this notice, and only such officers as have been required to take an official oath. They act officially, and are under the sanctity of an official oath. Their action is taken in compliance with their oath. The burden, or privilege, of giving this notice is not imposed by this statute upon any private citizen, whatever his knowledge of the facts may be. If the private citizen who has knowledge of the facts desires the law put in motion he must apprise the officer whose actions are had under an official oath. Had the statute intended to dispense with the necessity of an oath, the privilege of giving this notice could have been conferred on private citizens. But the private citizen can give notice to the justice of the peace only by making an affidavit for a warrant of arrest. The Legislature in its wisdom determined that there was a necessity to make certain peace officers prosecuting officers in the enforcement of the laws against gambling. (Gambling, in a sense, is an impersonal offense, and there is not usually a prosecutor at hand, as there is in prosecutions of offenses for violation of the laws protecting one’s peace, person or property. And so certain peace officers are made prosecuting officers in regard to gaming, and the judicial officers to whom they report are required to proceed when they have this notice of the violation of the laws against gaming. The statute does not say how this notice must be given, but a proper practice, which would make for an orderly enforcement of the law, would require this notice to be in writing. This notice is in the nature of the information which the prosecuting attorney and his deputy are required to file against persons believed to be guilty of carrying concealed weapons, the unlawful sale of liquor, gambling and certain similar offenses. “The deputy prosecuting attorney provided for in section 6387 shall have authority to file, with any justice of the peace in his county, information charging any person with carrying weapons unlawfully, the unlawful sale of or being interested in the sale of intoxicating liquors; violation of the blind tiger act or gambling, whereupon it shall be the duty of the justice of the peace to issue a warrant for the arrest of the offender, and in such cases no bond shall be required for the costs of prosecution.” Section 6388, Kirby’s Digest.
This section might also be said to offend against article 2, section 15, of the Constitution, except that in filing this information the prosecuting attorney is acting under his official oath.
The right of prosecuting officials to file information is well recognized and has long been a common method of instituting prosecutions for misdemeanors.
“A criminal information is an accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath.
“This proceeding by criminal information comes from the common law, without the aid of statutes; and is allowable by the common law in a great variety of cases, the rule appearing to be that it is a concurrent remedy with the indictment for all misdemeanors, but not permissible in any felony.
“The right to make the information is, by the English law, as it stood when our forefathers imported it to this country, in the Attorney General, who acts upon his own official discretion without the interference of the court; or, if the office of Attorney General is vacant, it is in like manner in the Solicitor General.
“In the American States the criminal information should be deemed to be such, and such only, as, in England, is presented by the attorney or solicitor general. This part of the English common law has plainly become common law with us. And as, with us, the powers which in England are exercised by the Attorney General and the Solicitor General are largely distributed among our district attorneys, whose office does not exist in England, the latter officers would seem to he entitled, under our common law, to prosecute by information, as a right adhering to their office, and without leave of court. And such is the doctrine extensively if not universally acted upon in our States, though in some of them it is more or less aided by statutes.” State v. Whitlock, 41 Ark. 406. State v. Kyle, 65 S. W. 763.
Section 1742 of Kirby’s Digest makes certain peace officers prosecuting officers for the specified purposes, and imposes upon them the burden of giving notice, or fifing information, under the conditions stated. Likedise, section 1748 of Kirby’s Digest imposes similar duties in cetrain cases upon prosecuting attorneys.
“It shall be the duty of each prosecuting attorney in this State who knows or is informed of any person or persons exhibiting or setting up, or aiding or assisting in setting up, any [gambling] device described in the preceding section, in his circuit to take immediate steps to have such person or persons immediately arrested for trial, and such prosecuting attorney shall have such person or persons arrested as above provided for each separate offense done or committed on every separate day. ’ ’
The making of the peace officers named in this section 1742 prosecuting officers, and giving them authority to file information under the conditions there required, does not in our opinion offend against this section 15 of article 2, of the Constitution, and the judgment of the court below, in each of the cases, is accordingly reversed and remanded for a new trial.