Chapter 545 Proceedings Before Trial

545.800 - Copy of indictment or information furnished accused on request.

Steven Groce, Attorney Advertisement

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.

545.900 - Defendant on bail — discharged if not tried before end of third term.

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.

545.600 - Witnesses to attend trial in cases of removal.

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

545.700 - Adjourned term held, when.

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

545.500 - Order for removal shall specify what.

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

545.400 - Conditional examination of witnesses.

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.

545.100 - Officer may make disclosure, when.

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

545.300 - Informations — amendment — substitution for defective indictment.

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.

545.200 - Instruments, how described.

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

545.710 - Continuances, when and how granted.

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, 510.120

545.610 - In case of removal, when notice to be given.

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

545.410 - Duty of prosecuting attorney in taking depositions.

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

545.510 - Order for removal, where entered.

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

545.110 - Second indictment suspends first, when.

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.

545.010 - Felonies and misdemeanors may be prosecuted by indictment or information, exceptions.

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; 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, 311.770

Preliminary examination required, when, 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.

545.210 - Money or note, how described.

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

545.310 - Issuance of warrant — recognizance after arrest.

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

545.910 - When state not entitled to further continuance.

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.

545.810 - Defendant granted reasonable time to plead.

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

545.430 - Change of venue may be granted defendant.

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, 47.330

Prosecution begun in wrong county, case to be transferred, procedure, 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.

545.530 - Who may take recognizance.

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

545.730 - Continuances on behalf of state, how obtained.

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

545.630 - Clerk, when liable to civil action.

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

545.230 - Indictment by wrong name.

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.

545.330 - Issuance of subpoenas for defense witnesses.

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, 491.230 to 491.270

545.130 - Different degrees of same offense may be incorporated.

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

545.030 - Indictments and informations, when valid.

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.

545.930 - Endorsement or signature of pleadings in criminal cases.

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)

545.830 - Dilatory pleas, when entertained.

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.

545.820 - Court shall assign prisoner counsel, when.

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.

545.920 - When defendant not entitled to discharge.

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.

545.520 - Recognizance to be given.

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

545.420 - Indictment against judge to be removed to another circuit.

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

545.620 - Costs, how taxed and paid.

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, 550.120

545.720 - Contents of affidavit.

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.

545.320 - Issuance of subpoenas for state witnesses.

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, 491.400 to 491.450

545.220 - Demurrer or motion to quash indictment must specify grounds.

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, 547.210

545.020 - Recovery of fine or forfeiture, how.

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, 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.

545.270 - Form of information.

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. 20______, 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. 20______.
G H (style of office).

(RSMo 1939 § 3896, A.L. 1997 S.B. 248)

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

545.370 - Witness to attend until end of case — consequences of failure to so attend.

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

545.170 - Intent to injure or defraud, how charged.

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.

545.070 - Names of witnesses must be affixed to indictment.

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

545.470 - Application for change of venue, when made.

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

545.570 - In case of removal, transcript of record to be made.

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

545.870 - Prosecuting attorney to be notified, when.

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

545.860 - If prisoner bailed, no special term.

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

545.360 - Law governing witnesses in civil cases to apply.

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

545.260 - Lost affidavit, how replaced.

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

545.060 - Indictment to have name of prosecutor — by whom made — effect of failure.

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

545.160 - Venue, how stated.

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

545.560 - Duty of sheriff.

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

545.460 - Removal to be made on application of defendant.

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

545.660 - When judge deemed incompetent to try case.

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.

545.415 - Criminal cases, prosecutors and circuit attorneys may take depositions of any person, procedure — prisoners deposed, where.

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 1-01-95

545.015 - Definitions.

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 1-02-79

545.840 - Matters pleaded occurring in another county.

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

545.940 - Defendant may be tested for various sexually transmitted diseases, when.

1.Pursuant to a motion filed by the prosecuting attorney or circuit attorney with notice given to the defense attorney and for good cause shown, in any criminal case in which a defendant has been charged by the prosecuting attorney's office or circuit attorney's office with any offense under chapter 566 or section 565.050, assault in the first degree; section 565.052 or 565.060, assault in the second degree; section 565.054 or 565.070, assault in the third degree; section 565.056, assault in the fourth degree; section 565.072, domestic assault in the first degree; section 565.073, domestic assault in the second degree; section 565.074, domestic assault in the third degree; section 565.075*, assault while on school property; section 565.076, domestic assault in the fourth degree; section 565.081, 565.082, or 565.083, assault of a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer in the first, second, or third degree; section 567.020, prostitution; section 568.045, endangering the welfare of a child in the first degree; section 568.050, endangering the welfare of a child in the second degree; section 568.060, abuse of a child; section 575.150, resisting or interfering with an arrest; or paragraph (a), (b), or (c), of subdivision (2) of subsection 1 of section 191.677, recklessly exposing a person to HIV, the court may order that the defendant be conveyed to a state-, city-, or county-operated HIV clinic for testing for HIV, hepatitis B, hepatitis C, syphilis, gonorrhea, and chlamydia.The results of such tests shall be released to the victim and his or her parent or legal guardian if the victim is a minor.The results of such tests shall also be released to the prosecuting attorney or circuit attorney and the defendant's attorney.The state's motion to obtain said testing, the court's order of the same, and the test results shall be sealed in the court file.

2.As used in this section, "HIV" means the human immunodeficiency virus that causes acquired immunodeficiency syndrome.

(L. 2002 H.B. 1756, A.L. 2014 S.B. 491, A.L. 2014 H.B. 1371)

Transferred 2014; formerly 566.135; Effective 1-01-17

*Section 565.075 was repealed by S.B. 491, 2014, effective 1-01-17.

545.040 - Indictments signed by whom.

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

545.140 - Two or more persons and offenses may be charged in same indictment, when — separate counts for each offense — all defendants need not be joined in each count — separate trials, when — substantial prejudice, defined.

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

545.340 - Disobedience to subpoena, how punished.

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, 491.140 to 491.170, 491.190

545.240 - Informations — how filed, verified.

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

(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.

545.640 - Change of venue for one not to affect other defendants.

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

545.740 - Witnesses to enter into recognizance, when.

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

545.540 - Order for removal void, unless bail given.

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

545.440 - Change of venue in counties where court held at more than one place.

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

545.150 - Indictments in relation to property belonging to several owners.

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

545.050 - Name of prosecutor on indictment, when.

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 or her duty.

(RSMo 1939 § 3931, A.L. 1997 S.B. 248, A.L. 2009 H.B. 62 merged with H.B. 481)

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

545.250 - Who may make affidavit.

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

(2015) Section does not authorize the Public Service Commission to order an electric utility to sell its street lights to municipality absent its consent.City of O'Fallon v. Union Electric Co., 462 S.W.3d 438 (Mo.App.W.D.).

545.350 - Tender of fees not necessary.

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

545.650 - Change of venue and disqualification of judges in multiple-judge circuits.

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

545.450 - When case may be removed to another circuit.

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.

545.550 - Defendant in custody, to be removed, when — which county jail to house defendant.

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

545.950 - Child victim of sexual offense, video and aural recordings and photographs, defendant not to copy or distribute without court order.

1.Except as provided by subsection 2 of this section, the defendant, the defendant's attorney, or an investigator, expert, consulting legal counsel, or other agent of the defendant's attorney shall not copy or distribute to a third party any visual or aural recordings or photographs of a minor who is alleged to be the victim of an offense under chapter 566 created by or in the possession of a child assessment center, health care provider, or multidisciplinary team member unless a court orders the copying or distribution upon a showing of good cause after notice and a hearing and after considering the safety and privacy interests of any victim.

2.The defendant's attorney or an investigator, expert, consulting legal counsel, or agent for the defendant's attorney may allow a defendant, witness, or prospective witness to view the information provided under this section, but shall not allow such person to have copies of the information provided.

3.If a court orders the copying or distribution of visual or aural recordings or photographs as described in subsection 1 of this section, the order shall:

(1)Be limited solely to the use of the recordings or photographs for the purposes of a pending court proceeding or in preparation for a pending court proceeding;

(2)Prohibit further copying, reproduction, or distribution of the recordings or photographs; and

(3)Require, upon the final disposition of the case, the return of all copies to the health care provider, child assessment center, or multidisciplinary team member that originally had possession of the recordings or photographs, or provide an affidavit to the health care provider, child assessment center, or multidisciplinary team member that originally had possession of the recordings or photographs certifying that all copies have been destroyed.

(L. 2016 H.B. 1562)

545.850 - Special term of court.

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.

545.885 - Joint trials for persons jointly charged — exceptions — substantial prejudice defined.

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.

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.

545.780 - Speedy trial, when — what constitutes — failure to comply not grounds for dismissal, exception.

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, 217.460

545.580 - Transcript to be filed.

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

545.480 - Additional affidavit, when made.

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

545.080 - Indictments, when not to be made public.

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, 540.320

545.180 - Certain indictments, what designation sufficient.

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

545.380 - Defense witnesses — commission to take deposition, when.

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

545.280 - Prosecuting witness, who deemed.

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.

545.880 - Joint trials, when — separate trials for joint defendants, when — probability of prejudice exists, when.

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.

545.890 - Defendant imprisoned — discharge if not tried before end of second term.

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, 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.

545.790 - Cause continued, when.

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

545.690 - Another circuit judge may sit, when.

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.

(RSMo 1939 § 4040, A.L. 1961 p. 337)

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

545.490 - Petition for change of venue must be proved and may be rebutted.

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.

545.590 - Lost transcript may be replaced.

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, 109.160, 109.170

545.190 - Identification of counterfeiting equipment.

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

545.473 - Cole County, change of venue, procedure.

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)

*Word "through" appears in original rolls.

545.090 - Judges and others forbidden to disclose finding of indictment.

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

545.290 - Statute of jeofails applicable to proceedings by information.

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.

545.390 - Depositions to be taken and read as in civil cases.

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.