„ DISSENTING OPINION.
ROBERTSON, P. J.In the holding by Judge Sturgis as to the sufficiency of the testimony to make a prima-faeie case for the State, I concur; and, while, under the holding of the majority as to the insufficiency of the information, the defendant may be again tried, upon an amended information (State v. Keating, 223 Mo. 86, 122 S. W. 699), yet I am convinced that the judgment should be affirmed.
By applying the test as to the possibility of the information being understood by the defendant (State v. Wright, 161 Mo. App. 597, 602, 144 S. W. 175), ignoring grammatical inaccuracies and rhetorical errors, as is done even in felony cases (State v. Zorn, 202 Mo. 12, 45, 100 S. W. 591), and adhering to the rule that an information should not be held defective or insufficient if enough remains to constitute it good after striking out the objectionable parts (State v. Wall, 39 Mo. 532, 534; State v. Nations, 75 *304Mo. 53; State v. Flint, 63 Mo. 393; State v. Estis, 70 Mo. 427; State v. Van Zant, 71 Mo. 541, and State v. Meyers, 99 Mo. 107, 12 S. W. 516), I think the information in the case at bar is good.
The uniform holding in this State appears to be that the same rigid formality and accuracy is not exacted, in • informations in prosecutions for misdemeanors. as is required in cases of felony (State v. Hogle, 156 Mo. App. 367, 372, 137 S. W. 21; and State v. Edwards, 19 Mo. 674, 677), and the rule that nothing can be taken by intendment or implication does not prevail' in cases of misdemeanor. [State v. Edwards, supra; State v. Cox, 43 Mo. App. 328, 332; State v. Mathes, 44 Mo. App. 294, 295.] The opinion in the Cox case, supra, contains the following (p. 332):
“The law never required the same particularity in indictments for misdemeanors as it did in those for felonies, and omissions even may be supplied in the former by intendment. [State v. Edwards, 19 Mo. 674.] To indictments for this, class of offenses the remarks of that great and good man, Sir Matthew Hale, are particularly applicable: ‘More offenders escape by the overeasy ear given to exceptions in indictments than by their own innocence, and many times . . . heinous and crying offenses escape by these unseemly niceties, to the reproach of the law, to the shame of the government and to the encouragement of villainy, and to the dishonor of God. And it were very fit that by some law this overgrown curiosity and nicety were reformed, which is now become the disease of the law, and will I fear, in time, grow mortal without some timely remedy.’ [2 Hale, P. C.’ 193.] ”
In the case of State v. Turlington, 102 Mo. 642, 651, 15 S. W. 141, where a word was improperly used in an indictment for a felony, we find the following: “It is evident that the grammatical and rhetorical construction of the indictment is much impaired by the departure, but it cannot be said that the meaning has *305thereby been rendered so obscure as. not to sufficiently advise the defendant of the crime of which he was charged. There is no material charge in the indictment omitted and the word needlessly and improperly inserted does not tend to prejudice the substantial rights of the defendant.” The opinion in this case was at one time apparently criticised but afterwards, in State v. Wilson, 172 Mo. 420, 429, 72 S. W. 696, the opinion which criticised it was overruled and the Wilson case has been followed since in the cases of State v. Gregory, 178 Mo. 48, 54, 76 S. W. 970, and State v. Long, 201 Mo. 664, 674, 100 S. W. 587.
It is the duty of the court, as I understand, in construing these informations, to eliminate if possible any surplusage which will leave the information intelligible and not to eliminate such portions which will render it unintelligible. Taking the information as it stands and eliminating the repeated portions thereof between the words, “twenty-five hundred inhabitants or more,” and the word, “unlawfully,” that is, “and that on or about the 24th day of December, 1911, in said county of Ozark, one W. R. Jump: did then and there,” the information reads as follows:
“Tesley J. Luna, Prosecuting Attorney within and for the county of Ozark and State of Missouri, under his oath of office (based upon the information of a complaint in writing by--), informs the court that W. R. Jump, on or about the 24th day of December, A. D. 1911, at the said county of Ozark and State of Missouri, did then and there, the act of the Legislature of the State of Missouri, approved on the 5th day of April, 1887, commonly known as the Local Option Law, had been adopted and was in force ag the law of the State of Missouri, within the county of Ozark, there' being no city in said county having a population of twenty-five hundred inhabitants or more, unlawfully sell intoxicating liquor, to-wit, one quart of whiskey *306for the price and snm of sixty-five cents, and that the said W. R. Jump, did not then and there have any license of any kind authorizing him to sell the same and thát said sale was then and there made without any legal authority whatsoever to. sell the same; contrary to the statute in such cases made and provided, and against the peace and dignity of the State.”
Omitting all formal, qualifying and surplus portions of the information, it would read as follows: “W. R. Jump on December 24, 1911 (the Local Option Law had been adopted and was in force), unlawfully sold intoxicating liquor.”
While the charge may not be grammatically correct, it clearly conveys to my mind that it alleges directly, and do.es not' leave to be implied, that on December 24, 1911, the Local Option Law had teen adopted and ivas at that time in force and that the defendant on that date violated it. The case of State v. Edwards, 191 Mo. 674, supra, is not, I think, different in principle from this case.
I have not overlooked the criticism offered by the majority that the construction I make of the information by omitting a portion “breaks in two an otherwise complete sentence, severing the subject and part of the predicate with the modifying words,” etc. This criticism, I think, ignores that the pleader in the first part of the indictment charges the date of the offense and then charges parenthetically that at that time the Local Option Law had been hdopted and was in force.
It appears to me that the case of State v. Hall, 130 Mo. App. 170, 108 S. W. 1077, is clearly distinguishable from the case at bar and is really an authority for upholding the information here involved. In the Hall case there was more than one date given in the indictment and nothing to show, according to the holding in that opinion, that the Local Option Law was in force on the date it was charged the offense was committed. State v. Snider, 151 Mo. App. 699, 132 S. W. 299; *307State v. Wainwright, 154 Mo. App. 653, 136 S. W. 30, and State v. Feitz, 154 Mo. App. 578, 581, 136 S. W. 746, are in ray opinion, authorities which, in principle, justify the holding that the information in the case at bar' is good.