Missouri Statute | Act | Code |Criminal Procedure| US Code - US Statute

All felonies shall be prosecuted by indictment or information,
except in cases arising in the land, air or naval forces, or in the
militia as provided in sections 40.005 to 40.490, RSMo; and all
misdemeanors shall be prosecuted by indictment or by information in the
courts having jurisdiction thereof. But that mode of procedure which
shall be first instituted by the filing of the indictment or information
for any offense shall be pursued to the exclusion of the other, so long
as the same shall be pending and undetermined; and the court in which the
prosecution shall be first commenced by the filing therein of the
indictment or information, and the issuing of a warrant thereon, shall
retain jurisdiction and control of the cause to the exclusion of any
other court so long as the same shall be pending and undisposed of;
provided, that misdemeanors for violation of general laws of this state
shall in no case be prosecuted in any police or recorder's court, any
provision of any special city charter to the contrary notwithstanding;
provided, that the last mentioned provision of this section shall only
apply to cities having a population of not less than fifty thousand and
not exceeding three hundred thousand inhabitants. (RSMo 1939 § 3892, A.L.
1984 H.B. 1035)

Prior revisions: 1929 § 3502; 1919 § 3847; 1909 § 5055

CROSS REFERENCES: Liquor laws, indictment for violation to contain what,
RSMo 311.770 Preliminary examination required, when, RSMo 544.250
Prosecutions by indictment or information, Const. Art. I § 17

(1984) Filing of a complaint in circuit court charging defendant with
capital murder did not give defendant a constitutional right to a
preliminary hearing if the prosecution chose to seek an indictment by
grand jury for the same crime. State v. Thomas (Mo.App.E.D.), 674 S.W.2d
131.

As used in chapter 545, unless the context clearly requires
otherwise:

(1) "Magistrate" means associate circuit judge;

(2) "Circuit court" means a division of the circuit court presided over
by a circuit judge; and

(3) "Judge of the circuit court" means a circuit judge. (L. 1978 H.B.
1634)

Effective 1-2-79

Whenever a fine, penalty or forfeiture is or may be inflicted by
any statute of this state for any offense, the same may be recovered by
indictment or information, notwithstanding another or different remedy
for the recovery of the same may be specified in the law imposing the
fine, penalty or forfeiture; provided, that in all cases the fine,
penalty or forfeiture shall go to the state, county, corporation, person
or persons to whom the law imposing the same declares it shall accrue.
(RSMo 1939 § 4860)

Prior revisions: 1929 § 4467; 1919 § 3708; 1909 § 4919

CROSS REFERENCE: Trespass, penalties and damages may be recovered by
indictment or information, RSMo 537.370

(1967) Where a continuance is granted upon the defendant's application,
or because of some other action on his part, or upon the order of the
court, not requested by the state, it is not a ground for discharge under
the statute. Where a case is not tried at one or more terms, and the
record is completely silent as to the reason why it was not tried, it is
presumed, in the absence of proof to the contrary, that the failure of
the state to try the case during such term or terms, was not due to
laches on the part of the state. State v. Barlish (A.), 421 S.W.2d 558.

1. No indictment or information shall be deemed invalid, nor
shall the trial, judgment or other proceedings thereon be stayed,
arrested or in any manner affected:

(1) By reason of the omission or misstatement of the defendant's title,
occupation, estate or degree, or of the county or town of his residence;
or

(2) By the omission of the words, "with force and arms", or any words
with similar import; or

(3) By omitting to charge any offense to have been contrary to a statute
or statutes, notwithstanding such offense may have been created or the
punishment declared by a statute; or

(4) For the omission of the words "as appears by the record"; nor

(5) For omitting to state the time at which the offense was committed, in
any case where time is not of the essence of the offense; nor

(6) For stating the time imperfectly; nor

(7) For stating the offense to have been committed on a day subsequent to
the finding of the indictment or information, or an impossible day, or on
a day that never happened; nor

(8) For want of a proper or perfect venue; nor

(9) For want of any venue at all; nor

(10) For want of a statement of the value or price of any matter or
thing, or the amount of damages, injury or spoil in any case where the
value or price, or the amount of damages, injury or spoil is not of the
essence of the offense; nor

(11) For the want of an allegation of the time or place of any material
fact, when the time and place have once been stated in the indictment or
information; nor

(12) That dates and numbers are represented by figures; nor

(13) For an omission to allege that the grand jurors were impaneled,
sworn or charged; nor

(14) For any surplusage or repugnant allegation, when there is sufficient
matter alleged to indicate the crime and person charged; nor

(15) For want of the averment of any matter not necessary to be proved;
nor

(16) For any error committed at the instance or in favor of the
defendant; nor

(17) Because the evidence shows or tends to show him to be guilty of a
higher degree of the offense than that of which he is convicted; nor

(18) For any other defect or imperfection which does not tend to the
prejudice of the substantial rights of the defendant upon the merits.

2. Provided, that nothing herein shall be so construed as to render valid
any indictment which does not fully inform the defendant of the offense
of which he stands charged. (RSMo 1939 § 3952)

Prior revisions: 1929 § 3563; 1919 § 3908; 1909 § 5115

(1951) Amendment of forgery information, after jury was sworn, to change
date of offense from 13th of November to 14th, where check set out in
information was dated "11-1449" held not erroneous. State v. Redding, 362
Mo. 39, 239 S.W.2d 494.

(1951) Where information, at beginning, alleged accused committed assault
upon himself, but went on to charge that defendant assaulted another, it
was not void under this section. State v. Taylor, 362 Mo. 676, 243 S.W.2d
301.

(1952) Where caption of information for driving while intoxicated,
correctly set forth defendant's name, and he was referred to in the body
of the information only as "the defendant," information, which was
otherwise sufficient to charge appellant with the crime for which he was
convicted, held valid. State v. Hurley (Mo.), 251 S.W.2d 617.

(1953) It is not necessary to negative all exceptions in the statute in
an indictment charging an individual with a sale of nonintoxicating beer
to a minor, but such negativing or exceptions does not invalidate the
indictment. Such allegations must be regarded as surplusage. State v.
Henry (A.), 254 S.W.2d 307.

(1954) Submission of manslaughter in murder case, where evidence did not
support issue, was not an error of which defendant could complain. State
v. Brotherton (Mo.), 266 S.W.2d 712.

(1955) Information charging that defendant operated automobile in
careless, reckless and imprudent manner so as to endanger life, etc.,
held insufficient as failing to inform defendant of offense of which he
was charged. State v. Reynolds (A.), 274 S.W.2d 514.

(1961) Where submissible case was made as to second degree murder,
defendant was not entitled to complain that a submissible case was not
made as to manslaughter. State v. Chamineak (Mo.), 343 S.W.2d 153.

(1962) Use of word "hereinafter" instead of word "hereinbefore" in
instruction "that such shooting and killing were not done in self defense
as hereinafter explained you will find him guilty of manslaughter" was
mere discrepancy cured by this statute. State v. Gray (Mo.), 360 S.W.2d
642.

(1964) Court did not err in permitting substitution of information for
indictment at close of evidence and before submission of case to jury
where the only difference was that information stated both the name and
alias of person to whom defendant sold marijuana and indictment stated
only the alias since defendant had known for over a month the true name
of the person named in indictment. State v. Whittington (Mo.), 379 S.W.2d
518.

(1966) Failure to allege a constituent element of an offense affects the
substantial rights of the defendant, and such a failure is not cased by
the statute of jeofails. State v. Cantrell (Mo.), 403 S.W.2d 647.

(1973) Under statute of jeofails a conviction will not be set aside where
an indictment was amended by prosecutor to change the charge returned by
a grand jury to a lesser offense included therein. Hayes v. State (A.),
501 S.W.2d 508.

(1974) Held that where name of defendant was set out in style of the
indictment he was sufficiently identified. State v. Nelson (Mo.), 514
S.W.2d 581.

(1976) Held that second degree murder is a lesser included offense of
felony murder. See also for three judges' opinions to the contrary. State
v. Williams (Mo.), 529 S.W.2d 883.

Every indictment must be attributed to the prosecuting attorney,
and when the grand jury returns* any indictment into the court the judge
must examine it, and if the foreman has neglected to endorse it "a true
bill", with his name affixed thereto, or if the prosecuting attorney has
not affixed his or her name to the indictment, the court must cause the
foreman to affix his or her name or the prosecuting attorney to affix his
or her name, as the case may require. (RSMo 1939 § 3929, A.L. 1997 S.B.
248)

Prior revisions: 1929 § 3540; 1919 § 3885; 1909 § 5093

*Word "return" appears in original rolls.

CROSS REFERENCE: Proceedings before grand jury, Chap. 540, RSMo

(1960) Indictment held not invalid because signed by assistant
prosecuting attorney instead of prosecuting attorney. State v. Falbo
(Mo.), 333 S.W.2d 279.

(1963) Information which charged that defendant on the 6th day of
November, 1961, shot and inflicted mortal wounds on deceased from which
he died was sufficient although it did not specifically allege date of
death. State v. Luttrell (Mo.), 366 S.W.2d 453.

(1965) Indictment signed by an assistant prosecuting attorney instead of
prosecuting attorney was valid. State v. Elgin (Mo.), 391 S.W.2d 341.

1. No indictment for any trespass against the person or property
of another, not amounting to a felony, except for petit larceny, and no
indictment for the disturbance of the peace of a person, or for libel or
slander, shall be preferred unless the name of a prosecutor is affixed
thereto, thus: "A B, prosecutor", except where the same is preferred upon
the information and testimony of one or more grand jurors, or of some
public officer in the necessary discharge of his duty.

2. If the defendant be acquitted or the prosecution fails, judgment shall
be entered against such prosecutor for the costs. (RSMo 1939 § 3931, A.L.
1997 S.B. 248)

Prior revisions: 1929 § 3542; 1919 § 3887; 1909 § 5095

The name of the prosecutor must be affixed to such indictment;
but no indictment shall be quashed for the want of affixing such name, if
the same shall be made before the motion to quash is disposed of, and in
no case shall the judgment be arrested or the trial discontinued after it
has been commenced, for the want of such endorsement. (RSMo 1939 § 3932,
A.L. 1997 S.B. 248)

Prior revisions: 1929 § 3543; 1919 § 3888; 1909 § 5096

When an indictment is found by the grand jury, the names of all
the material witnesses must be affixed to the indictment; other witnesses
may be subpoenaed or sworn by the state, but no continuance shall be
granted to the state on account of the absence of any witness whose name
is not affixed to the indictment, unless upon the affidavit of the
prosecuting attorney showing good cause for such continuance. (RSMo 1939
§ 3933, A.L. 1997 S.B. 248)

Prior revisions: 1929 § 3544; 1919 § 3889; 1909 § 5097

When any indictment shall be found against any person for a
felony or misdemeanor, not being in actual confinement, or held by
recognizance to answer thereto, such indictment shall not be open to the
inspection of any person except the judge and clerk of the court and the
prosecuting attorney; nor shall it be docketed or entered upon the
minutes or records of the court until the defendant therein shall have
been arrested. (RSMo 1939 § 3936)

Prior revisions: 1929 § 3547; 1919 § 3892; 1909 § 5099

CROSS REFERENCE: Grand jury, penalty for disclosing evidence or
indictments, RSMo 540.320

No judge, prosecuting attorney, or other officer of any court,
shall disclose the fact of any such indictment being found until the
defendant therein shall have been arrested or recognized to answer the
same; and any person violating this provision shall be deemed guilty of a
misdemeanor. (RSMo 1939 § 3937)

Prior revisions: 1929 § 3548; 1919 § 3893; 1909 § 5100

Sections 545.080 and 545.090 shall not extend to any officer
making any such disclosure by the issuing or in the execution of any
process on such indictment, or in any other way, when it shall become
necessary in the discharge of any official duty. (RSMo 1939 § 3938)

Prior revisions: 1929 § 3549; 1919 § 3894; 1909 § 5101

If there be at any time pending against the same defendant two
indictments for the same offense, or two indictments for the same matter,
although charged as different offenses, the indictment first found shall
be deemed to be suspended by such second indictment, and shall be
quashed. (RSMo 1939 § 3939)

Prior revisions: 1929 § 3550; 1919 § 3895; 1909 § 5102

(1954) An indictment is "found" within this section at the time it is
returned into court and not at the time it is voted by the grand jury.
State v. Brown, 364 Mo. 759, 267 S.W.2d 682.

When, by law, an offense comprises different degrees, an
indictment may contain counts for the different degrees of the same
offense, or for any of such degrees. (RSMo 1939 § 3941)

Prior revisions: 1929 § 3552; 1919 § 3897; 1909 § 5104

1. Notwithstanding supreme court rule 24.06, two or more
defendants may be charged in the same indictment or information if they
are alleged to have participated in the same act or transaction or in the
same series of acts or transactions constituting an offense. Such
defendants may be charged in one or more counts together or separately
and all of the defendants need not be charged in each count.

2. Notwithstanding Missouri supreme court rule 24.07, two or more
offenses may be charged in the same indictment or information in a
separate count for each offense if the offenses charged, whether felonies
or misdemeanors or infractions, or any combination thereof, are of the
same or similar character or are based on the same act or transaction or
on two or more acts or transactions connected together or constituting
parts of a common scheme or plan.

3. Two or more defendants shall not be charged in the same indictment or
information if substantial prejudice should result. For purposes of this
section, "substantial prejudice" shall mean a bias or discrimination
against one or more defendants or the state which is actually existing or
real and not one which is merely imaginary, illusionary or nominal. (RSMo
1939 § 3942, A.L. 1984 S.B. 602)

Prior revisions: 1929 § 3553; 1919 § 3898; 1909 § 5105

When any offense shall be committed upon or in relation to any
property belonging to several partners or owners, the indictment or
information for such offense shall be deemed sufficient if it allege such
property to belong to any one or more of such partners or owners, without
naming all of them. (RSMo 1939 § 3943)

Prior revisions: 1929 § 3554; 1919 § 3899; 1909 § 5106

It shall not be necessary to state any venue in the body of any
indictment or information; but the county or other jurisdiction named in
the margin thereof shall be taken to be the venue for all the facts
stated in the body of the same. (RSMo 1939 § 3944)

Prior revisions: 1929 § 3555; 1919 § 3900; 1909 § 5107

It shall be sufficient in any indictment for any offense where
an intent to injure, cheat or defraud shall be necessary to constitute
the offense, to allege that the defendant did the act with such intent,
without alleging the intent of the defendant to be to injure, cheat or
defraud any particular person; and on the trial of such offense, it shall
not be necessary to prove an intent on the part of the defendant to
injure, cheat or defraud any particular person, but it shall be
sufficient to prove that the defendant did the act charged with an intent
to injure, cheat or defraud. (RSMo 1939 § 4862)

Prior revisions: 1929 § 4469; 1919 § 3710; 1909 § 4921

(1972) Although information charged that defendant tendered a no account
check willfully, unlawfully and feloniously with intent to cheat and
defraud a specific person, court held that it was sufficient to prove
that defendant did the act charged with an intent to injure, cheat or
defraud, and that such did not deny defendant due process of law. State
v. Bywaters (Mo.), 476 S.W.2d 588.

In any indictment for forging, uttering, stealing, embezzling,
destroying or concealing, or for obtaining by color of any false token,
writing, or false pretenses, any instrument or property, it shall be
sufficient to describe such instrument or property by any name or
designation by which the same may be usually known, or by the purport
thereof, without setting out any copy or facsimile thereof, or otherwise
describing the same, or the value thereof. (RSMo 1939 § 3945)

Prior revisions: 1929 § 3556; 1919 § 3901; 1909 § 5108

In any indictment for engraving or making the whole or any part
of any instrument, matter or thing whatsoever, or for using or having the
unlawful possession of any plate or other material upon which the whole
or any part of any instrument, matter or thing whatsoever shall have been
engraved or made, or for having the unlawful possession of any paper upon
which the whole or any part of any instrument, matter or thing whatsoever
shall have been made or printed, it shall be sufficient to describe such
instrument, matter or thing by any name or designation by which the same
may be usually known, without setting out any copy or facsimile of the
whole or any part of such instrument, matter or thing. (RSMo 1939 § 3946)

Prior revisions: 1929 § 3557; 1919 § 3902; 1909 § 5109

In all other cases, whenever it shall be necessary to make any
averment in any indictment as to any instrument, whether the same
consists wholly or in part of writing, print or figures, it shall be
sufficient to describe such instrument by any name or designation by
which the same may be usually known, or by the purport thereof, without
setting out any copy or facsimile of the whole or any part thereof. (RSMo
1939 § 3947)

Prior revisions: 1929 § 3558; 1919 § 3903; 1909 § 5110

In every indictment in which it shall be necessary to make any
averment as to any money or any note, being or purporting to be made or
issued by any bank incorporated by law, or made or issued by virtue of
any law of the United States, it shall be sufficient to describe such
money or note simply as money, without specifying any particular coin or
note; and such allegation shall be sustained by proof of any amount of
coin, or of any such note, although the particular species of coin of
which such amount was composed, or the particular nature of such note,
shall not be proved; and in cases of larceny, embezzlement and obtaining
money or such notes by false pretenses, by proof that the offender stole,
embezzled or obtained any piece of coin, or any such note, or any portion
of the value thereof, although such piece of coin or such note may have
been delivered to him, in order that some part of the value thereof
should be returned to the party delivering the same or to any other
person, and such part shall have been returned accordingly. (RSMo 1939 §
3948)

Prior revisions: 1929 § 3559; 1919 § 3904; 1909 § 5111

A demurrer to or motion to quash an indictment shall distinctly
specify the grounds of objection to the indictment; unless it does so, it
shall be disregarded, nor shall any reason be held to sustain such
demurrer or motion not specified therein. (RSMo 1939 § 3949)

Prior revisions: 1929 § 3560; 1919 § 3905; 1909 § 5112

CROSS REFERENCE: Appeal by state, when demurrer to indictment sustained,
RSMo 547.210

If a defendant be indicted by the wrong name, unless he declare
his true name before pleading, he shall be proceeded against by the name
in the indictment. If he allege that another name is his true name, it
must be entered in the minutes of the court; and after such entry, the
trial and all other proceedings on the indictment shall be had against
him by that name, referring also to the name by which he is indicted, in
the same manner, in all respects, and with the same consequences as if he
had been indicted by his true name. (RSMo 1939 § 3950)

Prior revisions: 1929 § 3561; 1919 § 3906; 1909 § 5113

(1964) Court erred in sustaining motion to dismiss information on ground
that name in information was fictitious where name used was alter ego of
corporation and no claim was made that defendant was not the person
informed against. City of St. Louis v. Capital Vending Co. (A.), 374
S.W.2d 519.

Informations may be filed by the prosecuting attorney as
informant during term time, or with the clerk in vacation, of the court
having jurisdiction of the offense specified therein. All informations
shall state the name of the prosecuting attorney and be verified by his
oath or by the oath of some person competent to testify as a witness in
the case, or be supported by the affidavit of such person, which shall be
filed with the information; the verification by the prosecuting attorney
may be upon information and belief; all in the manner provided by supreme
court rule. The names of the witnesses for the prosecution must be
affixed to the information, in like manner and subject to the same
restrictions as required in case of indictments. (RSMo 1939 § 3894, A.L.
1997 S.B. 248)

Prior revisions: 1929 § 3504; 1919 § 3849; 1909 § 5057

CROSS REFERENCE: Misdemeanor prosecutions, Chap. 543, RSMo

(1951) Where accused does not attack information by motion to quash,
failure of assistant prosecuting attorney to sign it, is unavailing on
appeal. State v. Taylor, 362 Mo. 676, 243 S.W.2d 301.

(1951) Trial court has large discretion in granting leave to endorse
names of witnesses on indictment at beginning of trial. State v. Farris
(Mo.), 243 S.W.2d 983.

(1960) Information signed by an assistant prosecuting attorney of Jackson
County held sufficient. State v. Easley (Mo.), 338 S.W.2d 884.

(1964) Where information is supported by affidavit of private individual
that individual must have actual knowledge of the offense but
verification of information by prosecuting attorney may be upon
information and belief. State v. Statler (Mo.), 383 S.W.2d 534.

(1967) It is only where the information is supported by the affidavit of
a private individual that such person must have actual knowledge of the
offense, and the prosecuting attorney may verify an information upon
information and belief. State v. Crump (Mo.), 412 S.W.2d 490.

When any person has knowledge of the commission of a crime, he
may make his affidavit before any person authorized to administer oaths,
setting forth the offense and the person or persons charged therewith,
and file the same with the clerk of the court having jurisdiction of the
offense, for the use of the prosecuting attorney, or deposit it with the
prosecuting attorney, furnishing also the names of the witnesses for the
prosecution; and it shall be the duty of the prosecuting attorney to file
an information, as soon as practicable, upon said affidavit, as directed
in section 545.240. (RSMo 1939 § 3895)

Prior revisions: 1929 § 3505; 1919 § 3850; 1909 § 5058

If the affidavit or information shall be lost or destroyed, the
prosecuting attorney may file another, and the case shall proceed without
any delay from that cause. (RSMo 1939 § 3897)

Prior revisions: 1929 § 3507; 1919 § 3852; 1909 § 5060

An information filed in writing and as allowed by supreme court
rule may be in the following form: The State of Missouri )

against ) In the .......... court.

A..... B..... . )

C M, prosecuting attorney within and for the county of ...., in the state
of Missouri, informs the court that A B, on the .... day of ...., A.D.
19.., at the said county of ...., did then and there .... (here set out
the offense as in an indictment).

C M, prosecuting attorney.

C M, prosecuting attorney (or E F, as the case may be), makes oath and
says that the facts stated in the foregoing information are true,
according to his best information and belief.

Subscribed and sworn to before me, this .... day of ...., A.D. 19.. .

G H (style of office). (RSMo 1939 § 3896, A.L. 1997 S.B. 248)

Prior revisions: 1929 § 3506; 1919 § 3851; 1909 § 5059

When the information is based on an affidavit filed with the
clerk or delivered to the prosecuting attorney, as provided for in
section 545.250, the person who made such affidavit shall be deemed the
prosecuting witness, and in all cases in which by law an indictment is
required to be endorsed by a prosecutor, the person who makes the
affidavit upon which the information is based, or who verifies the
information, shall be deemed the prosecutor; and in case the prosecution
shall fail from any cause, or the defendant shall be acquitted, such
prosecuting witness or prosecutor shall be liable for the costs in the
case not otherwise adjudged by the court, but the prosecuting attorney
shall not be liable for costs in any case. (RSMo 1939 § 3900)

Prior revisions: 1929 § 3510; 1919 § 3855; 1909 § 5063

(1967) Court Rule 29.01 expands the requirement of section 545.280 and
imposes the duty upon the court to advise a defendant, upon arraignment,
of his right to counsel and upon request to appoint counsel for an
indigent defendant. State v. Maxwell (Mo.), 411 S.W.2d 237.

The statute of jeofails, as applicable to criminal pleadings and
proceedings in prosecutions by indictment, shall apply to all proceedings
in prosecutions by information; and any affidavit or information may be
amended in matter of form or substance at any time by leave of court
before the trial, and on the trial as to all matters of form and
variance, at the discretion of the court, when the same can be done
without prejudice to the substantial rights of the defendant, on the
merits, and no amendment shall cause any delay of the trial, except at
the instance of the defendant for good cause shown by affidavit. (RSMo
1939 § 3898)

Prior revisions: 1929 § 3508; 1919 § 3853; 1909 § 5061

(1951) Amendment of forgery information, after jury was sworn, to change
date of offense from 13th of November to 14th, where check set out in
information was dated "11-1449" held not erroneous. State v. Redding, 362
Mo. 39, 239 S.W.2d 494.

(1953) Amendment of information in robbery prosecution after trial had
commenced to allege that person upon whom assault was made was agent of
owner and in possession of money, held a matter of form only and not
erroneous. State v. Stidham (Mo.), 258 S.W.2d 620.

(1960) The allowance of an amendment to a robbery information after close
of state's case to charge that the amount taken from individual was $55
instead of $193 held proper where evidence showed that amount. State v.
Clark (Mo.), 331 S.W.2d 588.

(1971) Amendment of information during trial in burglary prosecution to
allege offense occurred between 11 p.m., March 31, 1970, and 12:35 a.m.,
April 1, 1970, instead of on April 1, 1970, held within judge's
discretion. State v. Fowler (Mo.), 473 S.W.2d 353.

(1971) Defendant is not entitled to be released simply because the
required number of terms have elapsed. He must show that he has demanded
a trial and that such request was made without success for a reasonable
length of time before his right to release is asserted. Failure to take
affirmative action seeking speedy trial constitutes a waiver of that
right and thus defendant's motion for discharge was correctly overruled.
State v. Harper (Mo.), 473 S.W.2d 419.

An information may be amended either as to form or substance at
any time before the jury is sworn, but no such amendment shall be allowed
as would operate to charge an offense different from that charged or
attempted to be charged in the original information. If an indictment be
held to be insufficient either as to form or substance, an information
charging the same offense charged or attempted to be charged in such
indictment may be substituted therefor at any time before the jury is
sworn. No amendment of the information or substitution of an information
for an indictment as herein provided shall cause a delay of the trial
unless the defendant shall satisfy the court that such amendment or
substitution has made it necessary that he have additional time in which
to prepare his defense. (RSMo 1939 § 3953)

Prior revision: 1929 § 3564

(1953) The right of the state to substitute an information for a
defective indictment is intended to be exercised in the discretion of the
prosecuting attorney and court has no power to control such discretion.
State ex rel. Downs v. Kimberlin, 364 Mo. 215, 260 S.W.2d 552.

(1956) Where conviction was had on information based on city ordinance
which was repealed at time of alleged offense, appellate court could not
remand case for trial on ordinance which was in effect at such time,
where the later ordinance was not in evidence. City of St. Louis v.
Vetter (A.), 293 S.W.2d 140.

(1957) Order holding indictment insufficient held not necessary in order
to permit substitution of information therefor. State v. Green (Mo.), 305
S.W.2d 863.

(1958) It was not abuse of discretion for trial judge to permit amendment
of information charging robbery in first degree so as to charge defendant
also as a habitual criminal when the record did not evidence any bad
faith on part of prosecuting attorney and the state had additional
evidence to show three prior felony convictions and subsequent discharge
therefor though the jury failed to convict defendant thereunder. State v.
Whitaker (Mo.), 312 S.W.2d 34.

(1966) Indictment cannot be amended by the court or the prosecuting
attorney, but only by the grand jury which has returned it. State v.
Holbert (A.), 399 S.W.2d 142.

Upon the filing of the information, a warrant shall issue for
the apprehension of the person charged with the offense, unless he be in
custody or voluntarily surrender himself in custody of the court; and if
such warrant be issued in term, it shall be made returnable forthwith;
but if issued in vacation, it shall be made returnable at the next term
thereafter; and if defendant be arrested during the term he shall be
brought into court, but if he be arrested in vacation of the court, the
officer making the arrest shall admit him to bail in a recognizance in
any sum not less than one hundred dollars nor more than five hundred
dollars, with good and sufficient sureties, to be approved by such
officer, conditioned for the personal appearance of the defendant in the
court in which the case is pending on the first day of the next term
thereof, and not depart without leave, which recognizance shall be
returned with the warrant and filed in the court; and in default of the
prisoner to give such recognizance, he shall be committed to the jail of
the county by the officer until the next term of court, or until he gives
such recognizance, and if default be made in such recognizance, the same
shall be adjudged forfeited, and shall be proceeded on as other
recognizances in criminal cases. (RSMo 1939 § 3901)

Prior revisions: 1929 § 3511; 1919 § 3856; 1909 § 5064

No subpoena for a witness in any criminal case shall be issued
on the part of the state, unless the name of such witness be endorsed on
the indictment or information, or the prosecuting attorney shall order
the same to be issued, in writing, or the prosecutor shall file an
affidavit that other witnesses ordered by him are positively necessary
for a complete adjudication of the case; and no subpoena shall issue for
any witness unless the defendant is in custody or on bail, or the clerk
or associate circuit judge shall have good reason to believe that he will
be apprehended. Subpoenas may be issued to different counties at the same
time, but all the witnesses ordered at one time, and living in the same
county, shall be included in one subpoena. (RSMo 1939 § 4229)

Prior revisions: 1929 § 3834; 1919 § 4177; 1909 § 5385

CROSS REFERENCE: Attendance of witnesses from without state, RSMo 491.400
to 491.450

The defendant shall be entitled to process for witnesses to be
issued and directed to the sheriff of the county in which such witnesses
may be; but all the witnesses in the same county shall be included in one
subpoena, and no subsequent subpoena shall be issued for any witness,
unless the court in which the cause is pending or the judge or associate
circuit judge, shall for good cause shown, order a subpoena for another
witness; or if, in absence of the judge, the defendant shall file with
the clerk his affidavit that other witnesses ordered by him are material
and positively necessary in his behalf, to a full and complete
adjudication of the case, the clerk shall issue subpoenas for such
witness. (RSMo 1939 § 4231)

Prior revisions: 1929 § 3836; 1919 § 4179; 1909 § 5387

CROSS REFERENCES: Compulsory process for witnesses, right of defendant,
Const. Art. I § 18 Habeas corpus ad testificandum in criminal cases
generally, RSMo 491.230 to 491.270

Disobedience to any such subpoena shall be punished in the same
manner and upon like proceedings as provided by law in civil cases; and
every delinquent witness shall be liable to the party at whose instance
he was summoned, in the same manner and to the same extent as in cases of
witnesses summoned in a civil suit. (RSMo 1939 § 4008)

Prior revisions: 1929 § 3619; 1919 § 3962; 1909 § 5169

CROSS REFERENCE: Attendance of witness, how enforced, RSMo 491.140 to
491.170, 491.190

It shall not be necessary to pay or tender any fees whatever to
any witness summoned on the part of the state or on the part of the
defendant, but such witness shall be bound to attend and be liable for
his nonattendance in the same manner as if the fees allowed to witness
had been duly paid to him. (RSMo 1939 § 4009)

Prior revisions: 1929 § 3620; 1919 § 3963; 1909 § 5170

The provisions of law in civil cases, relative to compelling the
attendance and testimony of witnesses, their examination, the
administration of oaths and affirmations and proceedings as for contempt,
to enforce the remedies and protect the rights of parties, shall extend
to criminal cases so far as they are in their nature applicable thereto,
subject to the provisions contained in any statute. (RSMo 1939 § 4069)

Prior revisions: 1929 § 3680; 1919 § 4024; 1909 § 5230

Whenever a witness in a criminal case has been once subpoenaed
or recognized to appear before any division of the circuit court, he
shall attend under the same as such witness, from time to time, and from
term to term, until the case be disposed of, or he be finally discharged
by the court; and he shall be liable to attachment for any default or
failure to appear as such witness, and adjudged to pay the costs and such
fine as the court may properly impose; and no costs shall be allowed for
any subsequent recognizance or subpoena for any such witness. (RSMo 1939
§ 4234, A.L. 1985 S.B. 5, et al.)

Prior revisions: 1929 § 3839; 1919 § 4182; 1909 § 5390

When any issue of fact is joined in any criminal case, and any
material witness for the defendant resides out of the state, or residing
within the state, is enceinte, sick or infirm, or is bound on a voyage or
is about to leave this state, or is confined in prison under sentence for
a felony, such defendant may apply to the court, or judge thereof, in
which the cause is pending, for a commission to examine such witness upon
interrogatories thereto annexed, and such court may grant the same upon
the like proof and on the like terms as provided by law in civil cases.
The court, or judge thereof, granting such commission, may permit the
officer prosecuting for the state to join in such commission. The
deposition of any witness confined in prison under sentence for a felony
shall be taken where such witness is confined. (RSMo 1939 § 4010)

Prior revisions: 1929 § 3621; 1919 § 3964; 1909 § 5171

Interrogatories to be annexed to such commission shall be
settled and such commission shall be issued, executed and returned in the
manner prescribed by law in respect to commissions in civil cases, and
the depositions taken thereon and returned shall be read in like cases
and with the like effect as in civil suits. (RSMo 1939 § 4011)

Prior revisions: 1929 § 3622; 1919 § 3965; 1909 § 5172

CROSS REFERENCE: Depositions in civil cases, Chap. 492, RSMo

The defendant in any criminal cause may also have witnesses
examined on his behalf, conditionally, upon a commission issued by the
clerk of the court in which the cause is pending, in the same cases and
upon the like notice to the prosecuting attorney, with the like effect
and in all respects as is provided by law in civil suits; provided, that
the notice in such case to the prosecuting attorney shall state the name
or names of the witness or witnesses whose depositions are desired or
will be taken. (RSMo 1939 § 4012)

Prior revisions: 1929 § 3623; 1919 § 3966; 1909 § 5173

(1959) Supreme court rule 25.10 does not authorize taking of depositions
after filing of felony complaint but before preliminary hearing since
case is not pending until information is filed or indictment is returned.
State ex rel. Woods v. Ratliff (Mo.), 322 S.W.2d 864.

(1964) There is no statutory authority for court order requiring payment
by the state of the costs of the taking of depositions on behalf of
defendant in criminal proceedings. Failure to furnish free depositions is
not a violation of defendant's constitutional rights. State v. Aubachon
(Mo.), 381 S.W.2d 807.

When any prosecuting attorney shall be notified of the taking of
any deposition, as specified in section 545.400, it shall be his duty to
attend the taking thereof if the same shall be taken in his county, but
if in any other county in this state, he shall immediately notify the
prosecuting attorney of the county where such deposition is to be taken,
giving him such information as will enable him to represent the state at
the taking of the same; and it is hereby made the duty of such
prosecuting attorney, upon receiving such information, to attend the
taking thereof in behalf of the state. If any such deposition be taken
out of the state, the prosecuting attorney may employ counsel to attend
and represent the state at the taking of the same, at a fee not to exceed
ten dollars for the first witness examined, and one dollar for each
additional witness examined, which fee shall be taxed and paid as other
costs in the case. (RSMo 1939 § 4013)

Prior revisions: 1929 § 3624; 1919 § 3967; 1909 § 5174

Beginning July 1, 1995, a prosecuting or circuit attorney in any
criminal case pending in any court may obtain the deposition of any
person on oral examination. The manner of taking such depositions shall
be governed by the rules relating to the taking of depositions in civil
actions. The depositions of any person confined in prison shall be taken
where such person is confined. (L. 1994 S.B. 693)

Effective 1-1-95

Whenever any indictment or prosecution for a criminal offense
shall be pending in any court, against the judge thereof, the same shall
be removed to the circuit court of some county in a different circuit,
upon the order in writing of the prosecuting attorney, or upon the order
of any judge of the supreme court. (RSMo 1939 § 4014)

Prior revisions: 1929 § 3625; 1919 § 3968; 1909 § 5175

Any criminal cause pending in any circuit court may be removed,
by the order of such court or the judge thereof, to the circuit court of
another county in the same circuit, whenever it shall appear, in the
manner provided in section 545.490, that the minds of the inhabitants of
the county in which the cause is pending are so prejudiced against the
defendant that a fair trial cannot be had therein. (RSMo 1939 § 4015)

Prior revisions: 1929 § 3626; 1919 § 3969; 1909 § 5176

CROSS REFERENCES: Division of county, how pending prosecution conducted,
RSMo 47.330 Prosecution begun in wrong county, case to be transferred,
procedure, RSMo 541.120 to 541.150

(1952) No change of venue or right to disqualify judge exists in a
criminal contempt case. Osborne v. Purdome (Mo.), 250 S.W.2d 159.

In all counties in this state wherein terms of courts having
criminal jurisdiction are held at more places than one, and provision has
been made by law for the taking of changes of venue in criminal causes
from one of such places to another, in all such cases, applications for
changes of venue shall be subject to the same rules as to practice and
proof as are now prescribed by law for the taking of changes of venue in
criminal causes from one county or circuit to another. (RSMo 1939 § 4016)

Prior revisions: 1929 § 3627; 1919 § 3970; 1909 § 5177

Whenever it shall appear, in the manner provided in section
545.490, that the inhabitants of the entire circuit are so prejudiced
against the defendant that a fair trial cannot be had therein, the cause
shall, by order of the court or judge thereof, be removed to another
circuit, in which such prejudice is not alleged to exist. (RSMo 1939 §
4017)

Prior revisions: 1929 § 3628; 1919 § 3971; 1909 § 5178

(1963) Defendant may not allege in his application that prejudice exists
in multiple circuits. State v. Brookshire (Mo.), 368 S.W.2d 373.

Such order of removal, as specified in sections 545.440 and
545.450, shall be made on the application of the defendant, or where the
defendant is under the age of sixteen, then on the application of the
parent or guardian of such defendant, or if such defendant has no parent
or guardian, then on the application of any respectable citizen of the
county where the cause is at issue. (RSMo 1939 § 4018)

Prior revisions: 1929 § 3629; 1919 § 3972; 1909 § 5179

No order for the removal of any cause shall be made on the
application of the defendant for the causes specified in sections 545.430
and 545.450, unless such application be made during the term of the court
at which the indictment is found; provided, said defendant be in custody
or on recognizance, and if not so in custody or held to bail, then the
application may be made at or before the first term after the defendant
shall have been arrested, and not thereafter except as provided for in
section 545.480. (RSMo 1939 § 4021)

Prior revisions: 1929 § 3632; 1919 § 3975; 1909 § 5182

1. Notwithstanding Missouri supreme court rule 32.03, a
defendant with a case filed in a county with department of corrections
centers with a total average yearly offender population in excess of two
thousand persons shall follow the procedure listed in subsections 2 to**
5 of this section in order to obtain a change of venue for misdemeanors
or felonies.

2. Upon written application of the defendant, a change of venue may be
ordered in any criminal proceeding for the following reasons:

(1) That the inhabitants of the county are prejudiced against the
defendant; or

(2) That the state has an undue influence over the inhabitants of the
county.

3. In felony cases, the application must be filed not later than thirty
days after arraignment. In misdemeanor cases, the application must be
filed not later than ten days before the date set for trial.

4. A copy of the application and a notice of the time when it will be
presented to the court shall be served on all parties.

5. The application shall set forth the reason or reasons for change of
venue. It need not be verified and shall be signed by the defendant or
his attorney.

6. The state may, within five days after the filing of the application
for a change of venue, file a denial of the existence of the reason or
reasons alleged in the application. Such denial need not be verified. If
a denial is filed, the court shall hear evidence and determine the
issues. If the issues are determined in favor of the defendant, or if the
truth of the grounds alleged is within the knowledge of the court, or if
no denial is filed, a change of venue shall be ordered to some other
county convenient to the parties and where the reason or reasons do not
exist. (L. 1986 S.B. 450 § 2, A.L. 1995 H.B. 424)

*Transferred 1989; formerly 508.355

**Word "through" appears in original rolls.

If the defendant will, in addition to the oath requisite in
ordinary and timely applications, swear that the facts on which he
grounds his application have first come to his knowledge since the last
preceding continuance of the cause, the court may grant a change of
venue, although such application be made at a term subsequent to that at
which the prisoner was likely to be arraigned. (RSMo 1939 § 4022)

Prior revisions: 1929 § 3633; 1919 § 3976; 1909 § 5183

The petition of the applicant for a change of venue shall set
forth the facts or grounds upon which such change is sought, and such
petition shall be supported by the affidavit of petitioner and the
affidavit of at least two credible disinterested citizens of the county
where said cause is pending and the truth of the allegations thereof
shall be proved, to the satisfaction of the court, by legal and competent
evidence, and the prosecuting attorney may in such case offer evidence in
rebuttal of that submitted in support of such application; the court, or
judge in vacation, shall fix the number of witnesses for which the state
or county may be liable; provided, in all cases in counties in this state
which now have or may hereafter have a population of less than
seventy-five thousand inhabitants if such petition for change of venue is
supported by the affidavits of five or more credible disinterested
citizens residing in different neighborhoods of the county where said
cause is pending, then the court or judge in vacation, shall grant such
change of venue, as of course, without additional proof; provided
further, that reasonable previous notice of such application shall in all
cases be given to the prosecuting attorney; and provided further, that if
the facts alleged as the ground of the application be within the
knowledge of the court or judge, he may order such removal of the cause
without any formal proof or the filing of affidavit; and provided
further, that if the application shall allege prejudice of the
inhabitants of more than one county in the circuit in which the case is
pending, the court may, upon proof of the allegations as herein provided
for, order the case sent to some county in the same or some other circuit
where such causes do not exist. (RSMo 1939 § 4019)

Prior revisions: 1929 § 3630; 1919 § 3973; 1909 § 5180

(1955) Where affidavit for change of venue, directed against inhabitants
of both H. and O. counties, and filed in H. County, was sustained as to
H. but overruled as to O. County and case was sent to O. County, it was
held that court properly found from evidence that failure to give notice
of application as to prejudice in O. County was not waived. State v.
Atkinson (Mo.), 285 S.W.2d 563.

(1963) Defendant may not allege in his application that prejudice exists
in multiple circuit. State v. Brookshire (Mo.), 368 S.W.2d 373.

(1963) Court did not abuse its discretion in overruling application for
change of venue from Jasper County to Lawrence County in forcible rape
case where record did not show that case was not as fully reported by
newspapers, television, and radio in Lawrence County and throughout the
state as in Jasper County and did not show bias and prejudice of
inhabitants of Jasper County. State v. Odom (Mo.), 369 S.W.2d 173.

(1965) Affidavits alleging defendant would not receive a fair trial in
county must state facts and not mere conclusions. State v. Martin (Mo.),
395 S.W.2d 97.

Every order for the removal of any cause under the foregoing
provisions shall state whether the same is made on the application of the
party, or on facts within the knowledge of the court or judge, and shall
specify the cause of removal and designate the county to which the cause
is removed. (RSMo 1939 § 4020)

Prior revisions: 1929 § 3631; 1919 § 3974; 1909 § 5181

Every order for the removal of a cause, if made in term, shall
be entered on the minutes; if made by an officer out of court, shall be
in writing and signed by such officer, and shall be filed by the clerk
with the petition, if any, as a part of the record in the cause. (RSMo
1939 § 4023)

Prior revisions: 1929 § 3634; 1919 § 3977; 1909 § 5184

When such order shall be made, the defendant, if not in
confinement or custody, shall enter into a recognizance, with sufficient
sureties, for his appearance to answer the charge in the court to which
the cause is to be removed, at the next term thereof, and from day to
day, and term to term thereafter, and to abide sentence and judgment
therein and not to depart such court without leave. (RSMo 1939 § 4024)

Prior revisions: 1929 § 3635; 1919 § 3978; 1909 § 5185

Such recognizance may be taken by the court or judge making the
order, or by any court or officer authorized by law to let to bail after
indictment, and when taken out of the court in which the cause is
pending, shall be filed with the clerk thereof. (RSMo 1939 § 4025)

Prior revisions: 1929 § 3636; 1919 § 3979; 1909 § 5186

No order for the removal of a cause shall be effectual in the
case of any defendant not in confinement or custody, unless a
recognizance, taken as herein directed, be entered into in open court, or
delivered with the order and filed with the clerk of the court, nor
unless such order be delivered before any juror is sworn in the cause;
and in no case shall a second removal of any cause be allowed. (RSMo 1939
§ 4026)

Prior revisions: 1929 § 3637; 1919 § 3980; 1909 § 5187

1. If the defendant be in actual custody or confinement, the
court or officer granting the order of removal shall, subject to any
arrangements made pursuant to subsection 2 of this section, also make an
order commanding the sheriff to remove the body of the defendant to the
jail of the county into which the cause is to be removed, and then
deliver him to the keeper of such jail, together with the warrant or
process, by virtue of which he is imprisoned or held.

2. The sheriff of the county granting the change of venue and the sheriff
of the county into which the cause is removed may agree as to which
county's jail will house the defendant. If the sheriffs do not agree
where the defendant will be confined, the defendant will be confined in
the county into which the cause is removed. In the event that the county
granting the change of venue continues to house the defendant, the
sheriff of that county shall be responsible for the timely transportation
of the defendant for all court appearances that require the presence of
the defendant. (RSMo 1939 § 4027, A.L. 2005 H.B. 353 merged with S.B. 210
merged with S.B. 420 & 344)

Prior revisions: 1929 § 3638; 1919 § 3981; 1909 § 5188

The sheriff shall obey such order without unnecessary delay, and
shall endorse on the commitment or process by virtue of which the
prisoner was in his custody, the reason of the change of custody, and
shall deliver such warrant, with the prisoner, to the keeper of the jail
of the proper county, who shall give such sheriff a receipt therefor and
take charge of and keep the prisoner in the same manner as if he had been
originally committed to such jail. (RSMo 1939 § 4028)

Prior revisions: 1929 § 3639; 1919 § 3982; 1909 § 5189

Whenever any order shall be made for the removal of any cause,
under the foregoing provisions, the clerk of the court in which the same
is pending shall make out a full transcript of the record and proceedings
in the cause, including the order of removal, the petition therefor, if
any, and the recognizance of the defendant and of all witnesses, and
shall transmit the same, duly certified under the seal of the court, to
the clerk of the court to which the removal is ordered. (RSMo 1939 § 4029)

Prior revisions: 1929 § 3640; 1919 § 3983; 1909 § 5190

On the receipt of such transcript by the clerk of the court to
which any cause is removed, he shall file the same as a record of his
court, and the same proceedings shall be had in the cause in such court,
in the same manner and in all respects as if the same had originated
therein. (RSMo 1939 § 4030)

Prior revisions: 1929 § 3641; 1919 § 3984; 1909 § 5191

If such transcript shall not be transmitted, or shall not be
received at or before the first term of the court to which the cause is
ordered to be removed, or if such transcript shall be lost or destroyed,
the cause shall not by reason thereof be discontinued, but such
transcript, or another in lieu thereof, may be transmitted and filed, as
required by this chapter, at or before the next succeeding term of such
court, and proceedings thereon shall be had as if no such failure or loss
had happened. (RSMo 1939 § 4031)

Prior revisions: 1929 § 3642; 1919 § 3985; 1909 § 5192

CROSS REFERENCE: Supplying lost or destroyed court records, generally,
RSMo 109.160, 109.170

The defendant and all witnesses and others who shall have
entered into any recognizance to attend the trial of such cause, having
notice of the removal thereof, shall be bound to attend at the time and
place of trial, in the county to which the cause is removed, and a
failure to do so shall be deemed a breach of recognizance. (RSMo 1939 §
4032)

Prior revisions: 1929 § 3643; 1919 § 3986; 1909 § 5193

When the order of removal is made in term, it shall be deemed a
notice to every person who shall have entered into a recognizance to
appear at such term; in other cases the notice shall be in writing,
signed by the prosecuting attorney or clerk of the court, and served on
the person so recognized, in the manner provided by law for serving
notices. (RSMo 1939 § 4033)

Prior revisions: 1929 § 3644; 1919 § 3987; 1909 § 5194

The costs and expenses necessarily incurred in the removal of
any such cause under the foregoing provisions shall be adjusted and
allowed by the court wherein the cause is tried, and shall be taxed as
other costs in such cause. (RSMo 1939 § 4034)

Prior revisions: 1929 § 3645; 1919 § 3988; 1909 § 5195

CROSS REFERENCE: Change of venue, costs of, RSMo 550.120

If any clerk of the court shall neglect or refuse to perform any
duty in relation to the removal of a cause enjoined on him by the
foregoing provisions, he shall forfeit and pay a sum not exceeding five
hundred dollars, to be recovered by civil action, in the name and to the
use of the state. (RSMo 1939 § 4035)

Prior revisions: 1929 § 3646; 1919 § 3989; 1909 § 5196

Where there are several defendants in any indictment or criminal
prosecution and the cause of the removal thereof exists only as to part
of them, the other defendants shall be tried and all proceedings had
against them, in the county in which the case is pending, in all respects
as if no order of removal had been made as to any defendant. (RSMo 1939 §
4036)

Prior revisions: 1929 § 3647; 1919 § 3990; 1909 § 5197

In all circuits composed of a single county having more than one
judge, no change of venue shall be allowed by said circuit court to the
circuit court of any other county in this state for the cause that the
judge sitting for the trial of said suit is prejudiced, nor for the cause
that the opposite party has undue influence over the judge, but if any
such legal objection is made to the judge assigned to try any case, then
such case shall be transferred to another division of said circuit court
presided over by a different judge. Only one such application shall be
made by the same party in the same case, and shall be made as to only one
of the judges of said court. (RSMo 1939 § 2232, A. 1949 H.B. 2142)

Prior revisions: 1929 § 2130; 1919 § 2633; 1909 § 4166

When any indictment or criminal prosecution shall be pending in
any circuit court or criminal court, the judge of said court shall be
deemed incompetent to hear and try said cause in either of the following
cases:

(1) When the judge of the court in which said case is pending is near of
kin to the defendant by blood or marriage; or

(2) When the offense charged is alleged to have been committed against
the person or property of such judge, or some person near of kin to him
by blood or marriage; or

(3) When the judge is in any wise interested or prejudiced, or shall have
been counsel in the cause; or

(4) When the defendant shall make and file an affidavit, supported by the
affidavit of at least two reputable persons, not of kin to or counsel for
the defendant, that the judge of the court in which said cause is pending
will not afford him a fair trial. (RSMo 1939 § 4037)

Prior revisions: 1929 § 3648; 1919 § 3991; 1909 § 5198

(1963) Section held not to disqualify judge from receiving indictment of
defendant for assault and beating of judge's daughter with intent to
rape. State v. Selle (Mo.), 367 S.W.2d 522.

If, in any case, the judge shall be incompetent to sit for any
of the causes mentioned in section 545.660, the judge of the court shall
set the case down for trial on some day of the term and notify and
request another circuit judge to try the case. The judge so requested
shall appear and hold the court at the time appointed for the trial of
the case; and he shall, during the trial of the case, possess all the
powers and perform all the duties of the judge at a regular term of the
court, and may adjourn the case from day to day, or to some other time,
as the exigencies of the case may require, and may grant a change of
venue in the case to the circuit court of another county in the same
circuit, or to another circuit. When the cause is removed to the circuit
court of another county in the same circuit, the judge so requested shall
appear and hold the court at the time set for the trial of the case in
the circuit court of the county to which the case is removed. If the
judge so requested fails to appear and hold the court at the time
appointed for the trial of the case, the judge of the court shall reset
the case for trial to suit the convenience of the judge so requested to
try the case, or may notify and request the judge of some other circuit
to appear and try the cause as heretofore provided. Should the judge so
requested fail to appear and hold the court at the time appointed for the
trial of the case, the judge of the court shall order a change of venue
in the case to some other circuit. The order shall be in writing, and the
judge shall file the order with the clerk of the court in which the cause
is pending. (L. 1939 § 4040, A.L. 1961 p. 337)

Prior revisions: 1929 § 3651; 1919 § 3994; 1909 § 5201

When any cause is set down for trial in vacation, as directed in
section 545.690, the judge shall adjourn the term to that day, at which
time an adjourned term of said court may be held for the trial of the
cause; and the court shall notify or recognize the witnesses in the cause
to appear at the time set for the trial thereof, and their attendance may
be compelled by attachment, as in other cases. (RSMo 1939 § 4041)

Prior revisions: 1929 § 3652; 1919 § 3995; 1909 § 5202

Continuances may be granted to either party in criminal cases
for good cause shown, and the court may postpone the trial of any such
case for good and sufficient reasons, of its own motion. When a
continuance is allowed on the application of either party, it shall be at
the costs of the party at whose instance it is granted, unless the court
otherwise direct. (RSMo 1939 § 4042)

Prior revisions: 1929 § 3653; 1919 § 3996; 1909 § 5203

CROSS REFERENCE: Continuance when counsel is member of general assembly,
RSMo 510.120

A motion to continue a cause on the part of the defendant on
account of the absence of evidence must be supported by the oath or
affidavit of the defendant or some reputable person in his behalf,
showing the materiality of the evidence expected to be obtained, and that
due diligence has been used to obtain it, and where the evidence may be;
and if it is for an absent witness, the affidavit must give his name, and
show where he resides or may be, and the probability of procuring his
testimony, and within what time, and what facts he believes the witness
will prove, and that he believes them to be true, and that he is unable
to prove such facts by any other witness whose testimony can be as
readily procured, and that the witness is not absent by the connivance,
procurement or consent of the defendant, and what diligence, if any, has
been used in the premises by the defendant, and that the application is
not made for vexation or delay merely, but to obtain substantial justice
on the trial of the cause. (RSMo 1939 § 4043)

Prior revisions: 1929 § 3654; 1919 § 3997; 1909 § 5204

(1952) Where defendant did not comply in writing with the provisions of
this section, court did not err in refusing continuance. State v. Abbott
(Mo.), 245 S.W.2d 876.

(1952) Application for continuance which did not show what diligence was
exercised to obtain witness' testimony nor the probability and time of
procuring same and which failed to state that affiant believed the facts
to which witness would testify, were true, held insufficient. State v.
Bockman (Mo.), 251 S.W.2d 607.

If the application for a continuance is by the state, the
prosecuting attorney shall state in writing, under his oath of office,
and according to his best information and belief, the same facts required
to be stated in the affidavit of the defendant. (RSMo 1939 § 4044)

Prior revisions: 1929 § 3655; 1919 § 3998; 1909 § 5205

Whenever a criminal case shall be continued, all the witnesses
in attendance shall be called by the court, and as many of them as the
parties may desire shall be required to enter into recognizance for their
appearance on the day of the next term on which such case shall be set
for trial, which day shall be fixed and designated by the court at the
time the continuance is granted; and if any such witness shall fail to
appear in said court when so called, for the purpose of being recognized,
such witness shall forfeit all his fees as witness in such cause, and may
be compelled to appear by attachment. (RSMo 1939 § 4045)

Prior revisions: 1929 § 3656; 1919 § 3999; 1909 § 5206

1. If defendant announces that he is ready for trial and files a
request for a speedy trial, then the court shall set the case for trial
as soon as reasonably possible thereafter.

2. The provisions of this section shall be enforceable by mandamus.
Neither the failure to comply with this section nor the state's failure
to prosecute shall be grounds for the dismissal of the indictment or
information unless the court also finds that the defendant has been
denied his constitutional right to a speedy trial. (RSMo 1939 § 4000,
A.L. 1977 H.B. 241, A.L. 1984 S.B. 602, A.L. 1986 H.B. 1158)

Prior revisions: 1929 § 3611; 1919 § 3954; 1909 § 5161

CROSS REFERENCE: Trial of convict in prison on request required, when,
RSMo 217.460

If any person indicted for a criminal offense abscond or flee
from justice, or cannot be found to be served with process, or, being let
to bail, shall not appear according to the condition of the recognizance,
the cause may be continued from term to term, without issuing process on
the indictment; and such process may be issued at any time on the
application of the prosecuting attorney. (RSMo 1939 § 3958)

Prior revisions: 1929 § 3569; 1919 § 3912; 1909 § 5119

Whenever an indictment is found, or an information filed, in a
court of record, it shall be the duty of the clerk, upon the request of
the defendant therein, to make out and deliver to him a copy of such
indictment or information with all endorsements thereon. (RSMo 1939 §
4001)

Prior revisions: 1929 § 3612; 1919 § 3955; 1909 § 5162

(1963) Trial court's action in overruling defendant's objection to going
to trial on grounds that he had not been served with copy of information
made before the voir dire examination but after plea of not guilty had
been entered was not error as objection came too late and defendant had
had reasonable time to prepare defense. State v. Sawyer (Mo.), 367 S.W.2d
585.

The defendant in an indictment or information in a court of
record, shall not be required to plead thereto until he shall have had a
reasonable time in which to examine the same and to prepare his pleading.
(RSMo 1939 § 4002)

Prior revision: 1929 § 3613

If any person about to be arraigned upon an indictment for a
felony be without counsel to conduct his defense, and be unable to employ
any, it shall be the duty of the court to assign him counsel, at his
request, not exceeding two, who shall have free access to the prisoner at
all reasonable hours. (RSMo 1939 § 4003)

Prior revisions: 1929 § 3614; 1919 § 3957; 1909 § 5164

(1956) Defendant is not entitled to more than one court appointed
attorney and trial court has discretion as to whether more than one shall
be appointed. State v. Lord (Mo.), 286 S.W.2d 737.

(1957) Eighteen-year-old defendant who was stranger in county who entered
plea of guilty to charge of robbery in first degree by means of dangerous
and deadly weapon, a capital offense, held denied due process of law
where court did not appoint counsel to conduct his defense even though he
did not request counsel. Edwards v. Nash (A.), 303 S.W.2d 211.

(1958) Defendant held to have waived right to be represented by counsel
and to have been capable of doing so. State v. Glenn (Mo.), 317 S.W.2d
403; Cert. den. 358 U.S. 942, 79 S.Ct. 348.

(1961) Where individual, convicted and given life sentence in the
penitentiary, filed a motion under supreme court rule 27.26 alleging that
he had no counsel when he pleaded to the offense and the circuit court
made no inquiry as to whether he had counsel or could obtain counsel and
also that he was uneducated and without experience or knowledge of the
law, it was error for the court to dismiss the motion without a hearing
on the ground that a prior proceeding had been instituted in the court.
State v. Moreland (Mo.), 351 S.W.2d 33.

(1963) Since there was no showing that defendant by reason of age,
ignorance or mental incapacity was unable to make an intelligent decision
as to need for counsel he had effectively waived his right to be
represented by counsel when he declined to employ an attorney or have one
appointed to defend him. State v. Rickard (Mo.), 364 S.W.2d 561.

(1966) Procedure prior to 1964 whereby trial court was authorized in its
discretion to appoint counsel to represent defendant on appeal or to
leave defendant to prosecute appeal on his own failed to afford indigent
defendant equal protection of the law. Bosler v. Swenson, 363 F.2d 154.
Affirmed 87 S.Ct. 996.

(1966) Arraignment is a critical stage in a criminal proceeding requiring
the appointment of counsel not only in homicide cases but upon
arraignment for any felony. State v. Scott (Mo.), 404 S.W.2d 699.

(1966) Appointment of counsel is required at arraignment at request of
person charged with felony. State v. Scott (Mo.), 404 S.W.2d 699.

(1967) Court's compelling defendant of limited education to go on trial
for felony without counsel immediately upon the withdrawal without notice
of his employed counsel resulted in a denial of due process of law. State
v. Martin (Mo.), 411 S.W.2d 215.

(1967) The decision of United States Supreme Court in Douglas v.
California that an indigent defendant is entitled to appointed counsel on
state appeal applied retrospectively to the case of an indigent prisoner
whose conviction was affirmed when he was not represented by counsel.
Swenson v. Donnell (A.), 382 F.2d 248.

(1968) Failure to furnish counsel to accused during interrogation before
confession at a time before decision in Escobedo case was not so
prejudicial as to infect the subsequent trial with an absence of
fundamental fairness. Howard v. Swenson (A.), 404 F.2d 469.

(1971) After September 1, 1972, attorneys no longer required to furnish
legal service gratuitously to indigent accused. State v. Green (Mo.), 470
S.W.2d 571.

No plea in abatement or other dilatory plea to an indictment or
information shall be received by any court, unless the party offering
such plea shall prove the truth thereof by affidavit or some other
evidence. (RSMo 1939 § 4005)

Prior revisions: 1929 § 3616; 1919 § 3959; 1909 § 5166

(1954) Plea in abatement in criminal prosecution based on stated
conclusions that defendant had been compelled to testify before the grand
jury which was investigating offense with which defendant was later
charged held properly overruled where testimony required was not shown
either in verified plea or by evidence. State v. Bright, 269 S.W.2d 615.

When any matters shall be pleaded as having occurred in any
other county than that in which the indictment or information was found,
it shall be tried in the same manner as if it had been alleged to have
occurred in the same county where such plea is tendered. (RSMo 1939 §
4006)

Prior revisions: 1929 § 3617; 1919 § 3960; 1909 § 5167

Whenever any person charged with an offense shall be confined in
jail two months before the regular term of the court in which he is to be
tried, the jailer shall, without delay, inform the judge of such court
thereof, who, if he shall be satisfied that a trial of such persons so
confined can be had thereat, and the public good require, shall call a
special term of court for the trial of such prisoner. (RSMo 1939 § 2017)

Prior revisions: 1929 § 1853; 1919 § 2349; 1909 § 3871

(1971) Contention on appeal from proceeding under court rule 27.26 that
conviction should have been set aside because movant had not been granted
speedy trial, in that although he entered plea of guilty at third term
after information was filed he was not sentenced until the fourth term,
overruled since statutory provisions as to speedy trial are not
jurisdictional and are waived unless timely invoked, and entry of plea of
guilty ended all questions based upon either statutory or constitution
guarantees of speedy trial. Rew v. State (Mo.), 472 S.W.2d 611.

If the prisoner shall be bailed or discharged, the jailer shall
give the judge notice of the fact, who shall thereupon be exempted from
the duty of holding a special term of his court. (RSMo 1939 § 2021)

Prior revisions: 1929 § 1857; 1919 § 2353; 1909 § 3875

Where a special term shall be ordered, under section 545.850,
the judge ordering the same shall cause a notice thereof to be served by
the sheriff or any authorized person, on the prosecuting attorney, and
the prisoner or prisoners to be tried, ten days before the commencement
of such term. (RSMo 1939 § 2018)

Prior revisions: 1929 § 1854; 1919 § 2350; 1909 § 3872

1. Notwithstanding supreme court rule 24.06, whenever two or
more defendants are jointly charged in an indictment or information, the
court shall order both or all defendants to be tried together. In the
event two or more defendants are charged in separate indictments or
informations with offenses, where both the defendants and the offenses
could have been joined in the same information or indictment, upon motion
of one or more defendants or on motion of the state, the court may order
the indictments or informations or both to be tried together.

2. If, upon written motion of the defendant, the court finds that the
probability for prejudice exists in a joint trial, the court shall order
the severance of defendants for trial. The court shall find that the
probability for prejudice exists if:

(1) At least one but not all of the defendants jointly charged is, if
convicted, subject to jury assessment of punishment; the defendant or
defendants subject to jury assessment of punishment shall have the burden
of showing the probability of prejudice if tried jointly;

(2) There is, or may reasonably be expected to be, material and
substantial evidence admissible against less than all of the joint
defendants;

(3) There exists an out of court statement of a codefendant which makes
reference to another of the joint defendants, but is not admissible
against that defendant, and if the statement cannot be properly limited
so as to eliminate reference to the complaining defendant;

(4) Severance of the joint defendants is necessary to achieve a fair
determination of guilt or innocence of any defendant. (RSMo 1939 § 4050,
A.L. 1963 p. 670, A.L. 1984 S.B. 602)

Prior revisions: 1929 § 3661; 1919 § 4004; 1909 § 5211

(1954) Where defendant had been granted a severance it was error for
court to state to jury that three persons were originally jointly
indicted and one of them had pleaded guilty. State v. Castino (Mo.), 264
S.W.2d 372.

1. Notwithstanding Missouri supreme court rule 24.07, whenever
two or more offenses are jointly charged in an indictment or information,
the court shall order both or all offenses to be tried together.

2. If it appears that a defendant or the state is substantially
prejudiced by a joinder of the offenses for trial, upon a written motion
of the defendant or the state and upon a particularized showing of
substantial prejudice, the court may grant a severance of offenses or
provide whatever relief justice requires. For purposes of this section,
"substantial prejudice" shall mean a bias or discrimination against the
defendant or the state which is actually existing or real and not one
which is merely imaginary, illusionary or nominal.

3. Each defendant tried jointly under this section shall be entitled to
peremptory challenges as set out in section 494.480, RSMo.

4. The word "evidence", as used in this section, shall not be construed
to include evidence as to character or reputation. (L. 1963 p. 670, A.L.
1980 H.B. 1138, et al., A.L. 1984 S.B. 602, A.L. 1989 S.B. 127, et al.)

(1966) This statute does not violate equal protection clause of 14th
amendment of U.S. Constitution merely because it is not applicable to all
offenses which relate in any manner to sex. State v. Lee (Mo.), 404
S.W.2d 740.

If any person indicted for any offense, and committed to prison,
shall not be brought to trial before the end of the second term of the
court having jurisdiction of the offense which shall be held after such
indictment found, he shall be entitled to be discharged, so far as
relates to the offense for which he was committed, unless the delay shall
happen on the application of the prisoner, or shall be occasioned by the
want of time to try the cause at such second term. (RSMo 1939 § 4085)

Prior revisions: 1929 § 3696; 1919 § 4040; 1909 § 5246

CROSS REFERENCE: Imprisonment on extradition warrant, limits, RSMo 548.171

(1966) What constitutes laches within meaning of this section as failure
of state to justly afford the accused such a speedy hearing and
determination of the charge against him as is accorded by the
constitution. State v. Amerison (Mo.), 399 S.W.2d 53.

(1969) This section relates to persons indicted or informed against, and
not to persons as to whom a complaint only has been filed. State v.
Caffey (Mo.), 438 S.W.2d 167.

(1972) Where statute requires discharge of a person indicted and
committed to prison if he is not brought to trial within two terms after
indictment is filed, the term at which information was filed is not
included in the computation. State v. Roach (Mo.), 480 S.W.2d 841.

If any person indicted for any offense, and held to answer on
bail, shall not be brought to trial before the end of the third term of
the court in which the cause is pending which shall be held after such
indictment found, he shall be entitled to be discharged, so far as
relates to such offense, unless the delay happened on his application, or
be occasioned by the want of time to try such cause at such third term.
(RSMo 1939 § 4086)

Prior revisions: 1929 § 3697; 1919 § 4041; 1909 § 5247

(1953) The right to a discharge under §§ 545.890 to 545.920 does not
involve a jurisdictional question and may be waived. If asserted it is a
matter for hearing and disposition in the trial court in the nature of an
interlocutory proceeding. Such right cannot be asserted in habeas corpus
proceeding. Osborne v. Owsley, 364 Mo. 544, 259 S.W.2d 129.

(1967) Where a continuance is granted upon the defendant's application,
or because of some other action on his part, or upon the order of the
court, not requested by the state, it is not a ground for discharge under
the statute. Where a case is not tried at one or more terms, and the
record is completely silent as to the reason why it was not tried, it is
presumed, in the absence of proof to the contrary, that the failure of
the state to try the case during such term or terms was not due to laches
on the part of the state. State v. Barlish (A.), 421 S.W.2d 558.

(1968) This section does not apply if trial is delayed through no fault
of the state. State v. Mace (Mo.), 427 S.W.2d 507.

If, when application is made for the discharge of a defendant
under either section 545.890 or 545.900, the court shall be satisfied
there is material evidence on the part of the state which cannot then be
had, that reasonable exertions have been made to procure the same, and
that there is just ground to believe that such evidence can be had at the
succeeding term, the cause may be continued to the next term, and the
prisoner remanded or admitted to bail, as the case may require. If the
defendant shall not be tried before the end of the term last mentioned,
the state shall not be entitled to any further continuance of the case,
and the prisoner shall, if he require it, be discharged. (RSMo 1939 §
4087)

Prior revisions: 1929 § 3698; 1919 § 4042; 1909 § 5248

(1976) Held, defendant must have demanded trial in order to be entitled
to discharge under this section or §§ 545.900 and 545.920. State v. Cook
(A.), 530 S.W.2d 38.

In all cities or counties in this state in which there shall be
more than two regular terms of the court having jurisdiction of criminal
cases, the defendant shall not be entitled to be discharged for the
reasons and under the circumstances mentioned in section 545.890 until
the end of the third term after the indictment was found, and under the
circumstances mentioned in section 545.900, the defendant shall not be
entitled to be discharged until the end of the fourth term after the
indictment was found, and in either case the matter of discharge shall,
at the end of such third and fourth terms, be governed by the provisions
of section 545.910. (RSMo 1939 § 4088)

Prior revisions: 1929 § 3699; 1919 § 4043; 1909 § 5249

(1953) Where court order continuing cause recited that it was made on
account of congested docket and lack of time, it could not be
collaterally attacked or impeached. Osborne v. Owsley (A.), 257 S.W.2d
691.

(1955) Where defendant was tried at first term of circuit court of St.
Louis City after amended information was filed and at the third term
(excluding term at which original information was filed) after
prosecution instituted, he was not entitled to his discharge. State v.
Newstead (Mo.), 280 S.W.2d 6.

(1957) Where indictment was filed on September, 1954, term but
defendant's plea was entered in December, 1954, term and defendant was
tried at the September, 1955, term (there being five terms of court a
year) he was not entitled to discharge as two continuances to the next
term were for "want of time to try the case." State v. Malone (Mo.), 301
S.W.2d 750.

(1961) On claim that defendant was not brought to trial within four terms
after the indictment was filed the record was reviewed and held not to
show that there was time during such terms to try the defendant. State v.
Werbin (Mo.), 345 S.W.2d 103.

(1971) Contention on appeal from proceeding under court rule 27.26 that
conviction should have been set aside because movant had not been granted
a speedy trial, in that although he entered plea of guilty at third term
after information was filed he was not sentenced until the fourth term,
overruled since statutory provisions as to speedy trial are not
jurisdictional and are waived unless timely invoked, and entry of plea of
guilty ended all questions based upon either statutory or constitutional
guarantees of speedy trial. Rew v. State (Mo.), 472 S.W.2d 611.

(1972) Although information was filed during September, 1968, term and
trial began during September, 1969, term after elapse of four terms of
court, since defendant took no action at any time to secure a trial until
he filed motion for discharge at May, 1969, term defendant was not
entitled to discharge. Failure to take affirmative action seeking a
speedy trial constitutes waiver of that right. State v. Wright (Mo.), 476
S.W.2d 581.

(1972) Where statute requires discharge of a person indicted and
committed to prison within three terms if there are more than two regular
terms of court a year, the term at which information was filed is not
included in the computation. State v. Roach (Mo.), 480 S.W.2d 841.

(1972) Where appellant had escaped from custody before arraignment set
for March 31, 1966, and was convicted of crime in California and on June
10, 1970, was paroled from California sentence and returned for trial in
Missouri, there was no denial of constitutional right to speedy trial
since defendant showed no prejudice except his assertions that each year
made it more difficult to find witnesses and that the Missouri detainer
precluded him from California rehabilitation programs. State v. Endres
(Mo.), 482 S.W.2d 480.

(1972) Where there is nothing in the record to indicate that the accused
or his counsel at any time made any demand for a trial, or that he made
such request without success for a reasonable length of time before his
right to release has been asserted, he is not entitled to release simply
because the required number of terms have elapsed. State v. West (Mo.),
484 S.W.2d 191.

Pleadings in criminal cases shall be attributed to a party or
attorney or signed in the manner provided by supreme court rule. Any
statutory requirement that pleadings be signed by any person shall be
satisfied by compliance with such rules. (L. 1997 S.B. 248)

Usa-missouri Law Firm / Lawyers Services Provided in Usa-missouri :

Usa-missouri Divorce Laws, custody, Usa-missouri Corporate Lawyers, Agreement, provident fund, Registered marriage, Court marriage Lawyers, Special/ Foreign marriage, Incorporation of company, Rent, eviction, tenancy, Lease Lawyers, Usa-missouri Labour laws, Appeals, Supreme Court Lawyers, High Court Lawyers, Bail, medical, negligence, Insurance claims/ accidents Lawyer, Usa-missouri Citizenship/ immigration Lawyers, Copyright Laws, Consumer, district Lawyer, State, national, Dowry, Wills & Probate, Trust & Estates Lawyers, Intellectual Property Lawyer, Bankrupt Lawyers, Banking & Finance, Corporate, Private Business Law, Recovery, Joint Venture & Mergers, Consumer, Civil Right Law Usa-missouri, Medical Negligence, Medical Malpractice, legal notice, summons, Income Tax Lawyers, sales, Custom Law, Excise Law, octroi, cess Civil, Criminal Solicitor Usa-missouri, Registration of property, Title search, mutation relationship, Conveyance, Transfer of Property Law, Usa-missouri Property lawyer, deeds, drafts, power of attorney, Recovery, Taxation Laws in Usa-missouri

LEGAL SERVICES

Add Lawyer
Legal Enquiry
Find a Lawyer
Bare Acts / India Codes
Statutes / Code

LAWYER BY LOCATION

India Lawyer
United State Lawyer
UAE Lawyer
Canada Lawyer
Find More...

LAW PRACTICE AREA

Business Law
Employment & Labor Law
Govt. Agencis & Taxtion
Family Law
Real Estate Property Law
Immigration Law

ABOUT HELPLINELAW

About Us
Contact Us
Services
Site Map
Recommend to Friends

This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Persons accessing this site are encouraged to seek independent counsel for advice in India abroad regarding their individual legal, civil criminal issues or consult one of the experts online.