DISSENTING OPINION.
GANTT, J.— As said by my learned brother, I concur in all the conclusions reached by him in the *167foregoing opinion, save and except that the information is invalid for the sole reason that the prosecuting attorney in his conclusion does not say, “And so L. N. Dempsey, prosecuting attorney as aforesaid, upon his oath or oficial oath, doth say,” etc. It will be observed that all the words of a proper conclusion of an indictment for murder are employed by the prosecuting attorney, save and except the words, ‘‘upon his oath” or “official oath.”
There is no difference of opinion amongst us as to the necessity of concluding an indictment for murder with the words, “And so the grand jurors upon their oath aforesaid do say that he (the said defendant, naming him) willfully, deliberately, premeditatedly and of his malice aforethought, him (the said deceased, naming him) in the manner and form and by the means aforesaid, did kill and murder, against the peace and dignity of the State. ’ ’
Such was the essential requirement of the common law, and when the people of Missouri in their organic law ordained “that no person shall, for felony, be proceeded against criminally otherwise than by indictment,” they meant an indictment as understood at common law. Long prior to the adoption of our Constitution, the word indictment had been construed and was well understood by our people, and it had uniformly been held that in an indictment for murder it it was essential that it should conclude, “and so the grand jurors upon their oath do say,” etc.
The settled construction from Coke down to State v. Meyers, 99 Mo. 107, I accept, and have followed during my incumbency here.
The question here is, are those words “upon his oath” or “upon his official oath” as pecessary to a valid information for murder, since the adoption of the amendment permitting the prosecution of murder by information, as they are in an indictment? The conclusion of the majority of my brethren is that they are, *168and that the information in this case is invalid for that reason. With the utmost respect for the judgment of my colleagues on this point, I am constrained by my investigation to take the contrary view, and dissent. At the outset, I agree that both at common law and under our Constitution an information should and must be as certain and definite as to its statement of the essential facts constituting an offense as an indictment, because the defendant is entitled to know the nature and cause of the accusation against him in order to enable him to prepare his defense. [2 Hawkins P. C., p. 369; Wharton’s Cr. Pl. (9 Ed.), sec. 87.]
It will hardly be controverted that this information measures up strictly to every requisite of a good common law indictment as to the statement of every fact necessary to advise the défendant of the nature and cause of the accusation against him. The only possible objection urged against it or that can be lodged against it is that the prosecuting attorney, who preferred the information in his official character, did not repeat his conclusion that, “upon Ms oath” or “official oath,” he made the charge of murder.
As I understand the reasoning of my brethren, it is held that because an indictment was required to conclude that, “upon the oath of the grand jurors” the charge of murder was made, it must follow that where an information is resorted to by the prosecuting attorney, he must conclude by saying, “upon his oath or official oath,” that he makes the charge. I have already adverted to the fact that we have held that an indictment for murder must conclude with a charge that the defendant did kill and murder upon the oath of the grand jurors, because we have adopted the common law indictment. The same reasoning necessarily applies to an information, for when we incorporated information in the Constitution as a mode of prosecuting felonies, we likewise imported it from the common law, and by the same token it must be understood *169in its common law sense. [State v. Kyle, 166 Mo. l. c. 303; Ex parte Slater, 72 Mo. 102; State v. Kelm, 79 Mo. 515.]
Bishop in his New Criminal Procedure (4 Ed.), sec. 144, says, “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 ours. 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, they would seem to be entitled, under our common law, to prosecute by information, as a right adhering to their office, and without leave of court. ’ ’
This statement of Bishop met the express sanction of this court in State v. Kyle, 166 Mo. l. c. 306.
Having settled that the information of our Constitution is the common law information, in the absence of a statute prescribing a form or additional safeguards, let us inquire what was the form of the common law information.
A form for an information for murder at common law is not to be found because murder was prosecuted by indictment of a grand jury, but, obviously, it was the purpose of the people in adopting information as a method of procedure to adopt the common laAV information as far as applicable to the prosecution of felonies.
Nowhere in the criminal informations of the common law was the attorney-general or solicitor-general or the croAvn officer of the king required to allege that, “upon his oath of office,” or “upon his official oath,” he gave the court to understand and be informed that an offense had been committed.
Mr. Bishop in the first volume of his New Criminal Procedure, sec. 712, says, “that only in formal parts, at the beginning and close, does the information *170differ from án indictment.” Bnt it does differ in these respects. The reason, I submit, is this: When the attorney-general in England filed his information, he did so virtute officii, and it was an official act and the courts took ex-officio notice of his office and of his right to file and prosecute the offense without leave of the court. As the law never requires a useless thing, why should he have been required to state that his official act was under his official oath?
The answer is, the courts of England never required him to allege that he preferred an information upon his oath of office. Whenever he filed an information, it was his official act and was done under the sanction of his oath of .office, and so, I say, the same official character is stamped upon the information filed 'by the prosecuting attorneys. The courts are hound to recognize their official acts without alleging the nontraversable statement that they have filed their informations under their oaths of office.
Our statute (sec. 2535, R. S. 1899), provides that “no indictment or information shall he deemed invalid . . . for want of the averment of any matter not necessary to he proved. ’ ’ Every circuit court is hound to take judicial notice of the incumbent of the office of prosecuting attorney in the counties in which it is held and it is entirely unnecessary to prove the prosecuting attorney’s title to the office or that-what he asserts as such officer is under his oath of office. [State v. Sickle, Brayton’s Rep. (Vt.) 132; Territory v. Cutinola, 4 New Mex. 160; 3 Burn’s Justice, 911; 1 Chitty’s Crim. Law, 845-847.]
In Kelm’s case, 79 Mo. 515, it was pointed out that “the textbooks are uniform in defining an information to be an accusation or complaint exhibited against a person for some criminal offense, ‘either immediately against the king or against a private person,' which, from its enormity or dangerous tendency, the public good requires should he restrained and punished, and *171differs principally .from an indictment in this, that an indictment is an accusation found by the oath of twelve men, whereas an information is only the allegation of the officer who exhibits it.’ ” [5 Bacon’s Abr., pp. 169-170-172; 2 Hawkins, P. C., ch. 26, sec. 4]
The nsnal and accepted formula was that the attorney-general or the solicitor-general, if the office of attorney-general was vacant, and, in certain cases, the crown officer in the king’s bench, as a matter of right and without leave of court, filed the information, and in behalf of the king “gave the court to understand and be informed that the defendant, at, etc., committed the particular offense. ’ ’ It was required that he state with certainty all the material parts of the alleged crime and not by way of argument or recital, but it was not necessary for him to state that he made such allegations under his official oath, either in the commencement or conclusion of his information. Whereas, as the grand jury could only make their presentment under their oath, it was essential that their indictment should show that they charged the defendant by virtue of their oath. As said by Judge Sherwood in State v. Meyers, 99 Mo. l. c. 116: “Of course, if a crime is to be charged, it must be done by the grand jurors upon their oaths. It does not appear that the grand jurors have charged murder in the conclusion before us. ’ ’ In that case the conclusion altogether omitted any charge by the grand jurors under their oath but merely stated, “and so said Charles Meyers and John Bogard in manner and form,” etc. Whereas, in this case the conclusion is, “And so the said L. N. Dempsey, prosecuting attorney within and for Chariton county, Missouri, as aforesaid, says that he, the said Jasper Coleman, him, the said Rufus Cox, in the manner and form and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly and of his malice aforethought, at the county of Chariton, in the State of Missouri, on the *172eighth day of August, 1903, did kill and murder, against the peace and dignity of the State. ’ ’
The only omission, therefore, that can he suggested is the failure to state that “upon his oath aforesaid,” he makes said information and charge. It was pointed out in Rex v. Wilkes, 4 Burr. 2527, by Lord Mansfield that there is a difference between informations and indictments.
Indictments are found upon the oaths of a grand jury, and can only be amended by themselves. Whereas, “informations are as declarations in the King’s suit.” I have, after the most careful research, been unable to find any case in which at common law it was ruled that it was essential to the validity of an information that the attorney-general or solicitor-general or the crown officer of the king’s bench should state that he made his charge “upon his oath,” or “official oath,” and as we have no statute prescribing such a form, I think it should be ruled that such an allegation is not essential, and that this objection to this information is not tenable.
That the prosecuting attorneys of the several counties in this State may prosecute by information, as a right adhering to their office, and without leave of the court, is now the accepted law of this State. [State v. Kelm, 79 Mo. l. c. 516-517; State v. Ransberger, 106 Mo. l. c. 145; State v. Kyle, 166 Mo. l. c. 303.]
Prosecuting attorneys are officers whose duties and terms of office are prescribed by law, and the several courts take judicial knowledge of the incumbent of this office in the several counties.
When, therefore, a prosecuting attorney files an information in a criminal cause, he is presumed to do so by virtue of his office, and it is not necessary for him to allege his right to do so.
As he is authorized by his special position to file an information and prosecute the alleged offender, the *173presumption is that when, as in this case, he informs the court in Ms official character as prosecuting attorney, it should be held that what he alleges is under and by virtue of his oath of office, and no good reason can be seen why he should allege that he makes the information upon his oath or official oath, as the very filing in his official character necessarily implies1 that he does so in obedience to the obligations of his official oath and in the performance of the duties of his office.
As already said, the information in this case having been made by the prosecuting attorney in his official character, it would add nothing to the security of the defendant for that officer to state that he charged the defendant with the offense “upon his oath” as such officer. All that he alleges, all that he charges, must be conclusively presumed to be upon that oath, which was one of the prerequisites to his qualifications for the office itself.
To guard against groundless and vindictive prosecutions and to secure good faith in the institution of criminal proceedings, the General Assembly has required the information to be verified by the prosecuting attorney or some competent witness, but I submit this is the only requirement of an oath by the prosecuting attorney, and that nowhere is he required to state in the body of his information that it is under oath or official oath.