The opinion
NIX, Judge
(dissenting).
Daniel Neal Hover, hereinafter referred to as the defendant, was charged by information in the Court of Common Pleas of Oklahoma County with having Operated a Motor Vehicle While Under the Influence of Alcohol. He was tried by a jury, found guilty, and sentenced to pay a fine of $100.00 and to serve 20 days in the county jail.
The record reveals the testimony of three witnesses comprising the State’s case. Larry J. Litchford, a member of the Central Oklahoma Citizens Band Patrol (a radio club of Edmond, Oklahoma) testified that on the evening of April 8, 1967, he observed a white, late model Oldsmobile parked on the shoulder of Interstate-35. That he pulled up behind the car with his flashing emergency lights on. That the car abruptly pulled off across several lanes of traffic and then, drove for some distance with its wheels on the center median. That he observed the car for some distance and he gave the tag number of the car to Officer Johnson. That he did not see the driver of the vehicle nor any of its occupants. That the car passed Officer Johnson, who was parked alongside Interstate-35, but did not see or attempt to stop said vehicle. Also, that being a member of Oklahoma Citizens Band Patrol did not authorize him to patrol streets of Oklahoma County. Officer Johnson testified he stopped the car that Litchford had identified, after it had run up on the center median. Johnson testified that defendant had a strong odor of alcohol about him and in his opinion, the defendant was under the influence of alcohol. Officer Johnson called Officer Tom LaValley to assist him in the arrest. These two officers were the only two present, and only Johnson saw the defendant drive the car.
The casemade reveals a strange thing regarding the verification on the information, made extremely obvious by the testimony of Johnson and LaValley. The verification was made by “A. M. Hamilton”, who was not present at the scene nor did he participate in the arrest in any manner. Officer Johnson was asked the following questions and gave the following answers:
“Q. (BY MR. GREGG) Officer Hamilton didn’t take part in this arrest, did he ?
A. No.
Q. Never was at the scene and never saw this man, did he?
A. No.
Q. You didn’t sign the information in this case — or complaint?
A. I signed the Summons.
Q. Did you sign the information or complaint in this case?
A. No, not this information.
Q. You are the officer that saw the alleged offense committed but you didn’t sign the information or complaint in this case ?
A. No.”
The transcript of the record further established that Hamilton could not have had any knowledge of the offense unless by the way of hearsay, and was in no position to subscribe to the following oath at the bottom of the information:
“STATE OF OKLAHOMA, OKLAHOMA COUNTY, ss.
I, A. M. Hamilton, being duly sworn on my oath declare that the statements set forth in the above information are true.
/s,/ A. M. HAMILTON
A. M. HAMILTON
Subscribed and Sworn to before me this 10th day of April, 1967.
DALE SMITH, Court Clerk
/s/ Stella Price
Stella Price, Deputy”
*956 It has been clearly established that an information in a misdemeanor case must be verified in positive terms. This prevents arbitrary information from springing into existence simply because a vindictive prosecutor elects to present them. All informa-tions, except those supported by proof upon oath which constitutes probable cause, were expunged from permissible procedure by this constitutional provision. A thorough discussion of this subject is to be found in the case of Salter v. State, written by the distinguished Judge Doyle, and is to be found in 2 Okl.Cr. 464 , page 470-471, 102 P. 719 , page 722, wherein it said:
“ ‘It is plain from this fundamental enunciation, as well as from the books of authority on criminal matters in the common law, that the probable cause referred to, and which must be supported by oath or affirmation, must be submitted to the committing magistrate himself, and not merely to an official accuser, so that he, the magistrate, may exercise his own judgment on the sufficiency of the ground for believing the accused person guilty; and this ground must amount to a probable cause of belief or suspicion of the party’s guilt. In other words, the magistrate ought to have before him the oath of-the real accuser, presented either in the form of an affidavit, or taken down by himself on a personal examination, exhibiting the facts on which the charge is based, and on which the belief or suspicion of guilt is founded.’
“The rule which was established was that the warrant should issue ‘only upon probable cause, supported by oath or affirmation of the person making the charge, in which should be stated the facts within his own knowledge constituting the grounds of such belief or suspicion.’ ” (Emphasis ours.)
Article 2, § 17 under our State Constitution provides that prosecution may be instituted in courts not of record, upon a duly verified complaint. We find that the word “verified” is defined by Black’s Law Dictionary as follows:
“VERIFICATION: Confirmation of correctness, truth or authenticity by affidavit, oath, or deposition. McNamara v. Powell, [Sup.] 52 N.Y.S.2d 515—527.”
To your writer it appears impossible for one without any firsthand knowledge of the offense to verify, in good faith, as to what offense was committed by defendant. Especially would it be so where the record reflects that the affiant is absolutely void of any firsthand information as to the offense. To approve this type of verification would be permitting, by the back door, that which the Constitutional proviso attempted to prohibit.
This Court held in Ivy v. State, Okl.Cr., 414 P.2d 1007 , in reference to an alleged verification:
“This appears to be regular in form, and had the defendant failed to offer his motion to quash, he would have waived this defect. Also, at the time defendant offered his motion, the county attorney could have corrected it, but he did not attempt to do so. Thereafter, when the court entered its order overruling defendant’s motion, which recited: ‘being fully advised in the premises’, what initially amounted to a minor error was compounded into a fatal one.’’
In the instant case, defense counsel filed a Motion to Quash the information “because it was not verified according to law and is void upon its face.” The record does not indicate this Motion was passed on by the trial judge. Nevertheless, the matter was called to the attention of the court by it being placed of record. Defense counsel demurred on the grounds that there was no verified complaint, contrary to the form of Statutes. The demurrer was overruled by the trial judge.
When this error was first called to the attention of the trial court, the district attorney should have been given an opportunity to amend or produce the affiant to prove his knowledge of the offense. Not to do so left the court with an information which the record proves to be void.
*957 This Court, in speaking of technical points in the Ivy case, supra, had this to say:
“We are of the opinion, under these circumstances, that it would be a travesty of justice to overlook this discrepancy as being technical and unimportant. Such reasoning might well be applied to other instances of misfeasance, or nonfeasance, which consequently cause fundamental error.”
[The foregoing text is as originally written and handed down by this Court on October 22, 1969, wherein both Presiding Judge Tom Brett, and Judge Hez J. Bussey, Concurred.]
Therefore, I have no alternative but to respectfully dissent to the new opinion rendered by my colleagues on May 13th, 1970. I feel that any oath to verify the commission of a crime should bear such degree of authenticity as that of a search warrant. When one swears to a complaint falsely, he should be subject to prosecution if the allegations therein are not true. I yet fail to understand how one having no knowledge or facts pertaining to an alleged crime could truthfully swear thereto upon hearsay information. I would reverse and remand this cause for a new trial.