{
  "id": 1556095,
  "name": "STATE v. WHITAKER",
  "name_abbreviation": "State v. Whitaker",
  "decision_date": "1929-12-19",
  "docket_number": "No. 3398",
  "first_page": "477",
  "last_page": "479",
  "citations": [
    {
      "type": "official",
      "cite": "34 N.M. 477"
    },
    {
      "type": "parallel",
      "cite": "284 P. 119"
    }
  ],
  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
  },
  "jurisdiction": {
    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
  },
  "cites_to": [
    {
      "cite": "10 L. R. A. 717",
      "category": "reporters:federal",
      "reporter": "L.R.A.",
      "opinion_index": 0
    },
    {
      "cite": "14 S. W. 865",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "pin_cites": [
        {
          "page": "868"
        }
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      "opinion_index": 0
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    {
      "cite": "102 Mo. 356",
      "category": "reporters:state",
      "reporter": "Mo.",
      "case_ids": [
        564371
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      "opinion_index": 0,
      "case_paths": [
        "/mo/102/0356-01"
      ]
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  "last_updated": "2023-07-14T20:51:24.898591+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "BICKLEY, C. J., and PARKER, J., concur.",
      "WATSON and SIMMS, JJ., did not participate."
    ],
    "parties": [
      "STATE v. WHITAKER."
    ],
    "opinions": [
      {
        "text": "OPINION BY THE COURT\nCATRON, J.\nThis appeal is from a conviction and sentence for larceny. The charge was by information verified in the following language:\n\u201cHouston Coffey being first duly sworn upon his oath states that he has read the above and foregoing information, knows the contents thereof and that the matters and things therein stated are true according to his best knowledge and belief.\u201d\nIn section 2, ch. 145, Laws of 1925, it is provided:\n\u201cAll informations shall be verified by the oath of the prosecuting attorney, complainant or some other person.\u201d\nAppellant moved to quash the information on the ground that the same was not verified as required by law. This motion was overruled, and after trial, appellant again raised the same question by motion in arrest of judgment.\nAppellant contends that a verification, \u201cthat the matters and things therein stated are true according to his best knowledge and belief,\u201d is a verification upon information and belief and violates section 2, ch. 145, Laws of 1925, and the constitutional provisions, both state and federal, prohibiting the issuance of warrants of arrest and placing defendant upon trial upon a complaint so verified.\n\u2022 As interesting as the question might be, we feel that it is not properly before us. Appellant in his argument has assumed that the verification is upon information and belief. If his assumption be incorrect and the verification be in reality positive in its nature, then the premises essential to the question sought to be raised do not exist. We therefore examine the verification.\nThe verification states that the matters and things contained in the information are true according to affiant\u2019s best knowledge and belief. It does not say according to or upon \u201cinformation and belief.\u201d It uses the words \u201cbest knowledge.\u201d Best knowledge is knowledge, and if the matters and things are true according to affiant\u2019s knowledge,' then the addition of the words \u201cand belief\u201d neither add to nor detract from the positive character of the verification. Clearly best knowledge and belief is quite different from information and belief, the difference being that existing between \u201cknowledge\u201d and \u201cinformation.\u201d Belief may rest either on knowledge or information. Facts known, and therefore believed, are positive.\nIn 31 C. J., Indictments and Information, p. 646, we find:\n\u201cWhen the verification is by a private person it must be positive and by one having actual knowledge of the facts, although a verification to the effect that the information is true according to the best knowledge and belief of the affiant has been sustained, in distinction from one merely on information and belief.\u201d\nThe same question was before the Supreme Court of Missouri in the case of State v. Bennett, 102 Mo. 356, 14 S. W. 865, 868, 10 L. R. A. 717, where the court, after careful consideration and review of authorities, reached the same conclusions here reached.\nAppellant having relied entirely upon the false premises that the verification was upon information and belief, there is nothing further for us to consider.\nJudgment of the trial court must be affirmed, and it is so ordered.\nBICKLEY, C. J., and PARKER, J., concur.\nWATSON and SIMMS, JJ., did not participate.",
        "type": "majority",
        "author": "CATRON, J."
      }
    ],
    "attorneys": [
      "O.O. Askren, of Roswell, for appellant.",
      "M. A. Otero, Jr., Atty. Gen., and E. C. Warfel, Asst. Atty. Gen., for the State."
    ],
    "corrections": "",
    "head_matter": "[No. 3398.\nDec. 19, 1929.]\nSTATE v. WHITAKER.\n[284 Pac. 119.]\nO.O. Askren, of Roswell, for appellant.\nM. A. Otero, Jr., Atty. Gen., and E. C. Warfel, Asst. Atty. Gen., for the State."
  },
  "file_name": "0477-01",
  "first_page_order": 497,
  "last_page_order": 499
}