Chapter 546 Trials, Judgments and Executions in Criminal Cases

546.670 - Recognizance, when broken.

Steven Groce, Attorney Advertisement

No recognizance given under the provisions of section 546.650 shall be deemed to be broken, unless the principal therein be convicted of some offense amounting, in judgment of law, to a breach of such recognizance.

(RSMo 1939 § 4099)

Prior revisions: 1929 § 3710; 1919 § 4054; 1909 § 5260

546.570 - Hearing before sentence.

When the defendant appears for judgment, he must be informed by the court of the verdict of the jury, and asked whether he has any legal cause to show why judgment should not be pronounced against him; and if no such sufficient cause be shown against it, the court must render the proper judgment.

(RSMo 1939 § 4102)

Prior revisions: 1929 § 3713; 1919 § 4057; 1909 § 5263

546.070 - Order of trial — instructions, requirements.

The jury being impaneled and sworn, the trial may proceed in the following order:

(1)The prosecuting attorney must state the case and offer the evidence in support of the prosecution;

(2)The defendant or his counsel may then state his defense and offer evidence in support thereof;

(3)The parties may then respectively offer rebutting testimony only, unless the court, for good reason in furtherance of justice, permit them to offer evidence upon their original case;

(4)In every trial for a criminal offense the court shall instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in giving the verdict, which instructions shall include a definition of the term reasonable doubt;

(5)Unless the case be submitted without argument, the counsel for the prosecution shall make the opening argument, the counsel for the defendant shall follow, and the counsel for the prosecution shall conclude the argument.

(RSMo 1939 § 4070, A.L. 1983 S.B. 276, A.L. 1984 S.B. 448 § A)

Prior revisions: 1929 § 3681; 1919 § 4025; 1909 § 5231

Effective 10-01-84

(1952) In murder case evidence showed defendant without provocation or forewarning "bumped into" victim and as he (victim) turned around defendant shot him. Defendant claimed that because of illness or beating or intoxication he did not recall incident. Instruction on accidental shooting not required. State v. Slaten (Mo.), 252 S.W.2d 330.

(1953) Court could not review refusal of trial court to give instruction converse to state's main instruction where new trial witness and, on cross-examination for purpose of impeachment, case. State v. Dennis (Mo.), 242 S.W.2d 534.

(1953) Where defendant's evidence indicated that he committed robbery, not of his own volition, but because of a well-grounded fear of present, imminent and impending death or serious bodily injury at the hands of others, court was required to instruct jury on issue of duress. State v. St. Clair (Mo.), 262 S.W.2d 25.

(1954) Instruction reciting "insanity interposed by counsel of the defendant as an excuse for the charge" held erroneous as tending to disparage legal defense. State v. Johnson (Mo.), 267 S.W.2d 642.

(1954) Instruction in rape prosecution requiring defendant to prove insanity "to the reasonable satisfaction of the jury" held erroneous. State v. Johnson (Mo.), 267 S.W.2d 642.

(1954) Argument on behalf of state that defendant was contending that he could not be convicted because he had theretofore been adjudicated insane and confined to mental hospital and statement that if found insane he would be out in two months held erroneous. State v. Johnson (Mo.), 267 S.W.2d 642.

(1956) Reference to fact in opening statement that defendant, although being tried separately, had been charged jointly with others held not error. State v. Deppe (Mo.), 286 S.W.2d 776.

(1956) Mere nondirection in misdemeanor case is not error since § 546.070 does not apply. State v. Griffin (A.), 289 S.W.2d 455.

(1956) Where no objection is made to instructions at time they are given and read to the jury, court on appeal cannot review alleged errors therein. State v. Rush (Mo.), 286 S.W.2d 767; (1956) State v. Lawson (Mo.), 290 S.W.2d 84.

(1958) Argument by prosecuting attorney that in the event of acquittal or light sentence the defendant would commit another crime is improper but, where general objection was made, the trial court was within its discretion in not ordering a new trial. State v. Eckenfels (Mo.), 316 S.W.2d 532.

(1960) Where defendant formulates and asks an instruction that correctly states the law which is the converse of the state's principal instruction it is duty of the trial court to give the same. State v. McWilliams (Mo.), 331 S.W.2d 610.

(1960) In prosecution for operating vehicle in excess of speed limit it was prejudicial error for judge to permit interruption of defendant's testimony to allow two patrolmen to give testimony beyond their own testimony in chief, contrary to and in rebuttal of defendant's interrupted testimony. State v. Hunt (A.), 335 S.W.2d 506.

(1961) Where the defendant in his direct testimony and in cross-examination gave some evidence as to his prior convictions but did not offer any evidence to prove his good reputation it was error on the part of the court to give a good character instruction which stated that the law presumed that the person whose character is good is less likely to commit a crime than one whose character is not good. State v. Baldwin (Mo.), 349 S.W.2d 212.

(1961) Where the defendant offered an incorrect instruction on a collateral matter (in this case on the effect of impeaching testimony) the court is required to give a correct instruction.State v. Chaney (Mo.), 349 S.W.2d 238.

(1962) Trial court need not instruct on alibi unless requested to do so and stated objections by defendant's counsel immediately prior to giving of instructions that the court "failed to instruct the jury on all the law in the case involved, such as alibi instruction" did not constitute a request for alibi instruction.State v. Harris (Mo.), 356 S.W.2d 889.

(1962) Phrase in reasonable doubt instruction that "but a doubt to authorize an acquittal on that ground ought to be substantial doubt", upheld against contention that it lessened the burden of state's proof. State v. Sanders (Mo.), 358 S.W.2d 45.

(1962) As a general rule this section has no application to misdemeanor cases. State v. Katz Drug Company (A.), 362 S.W.2d 80.

(1962) Words "if proven to your satisfaction" in instruction to jury on consideration to be given to previous good character of defendant in prosecution for murder, though technically erroneous, were not manifestly prejudicial. State v. Demaree (Mo.), 362 S.W.2d 500.

(1962) Instruction on self-defense in prosecution for murder containing the words that if defendant had "reasonable cause to believe and did believe that it was necessary for him to shoot and kill" the deceased in order to protect himself held not reversible error against charges that it denied defendant the right to act upon appearances and restricted his right to single hypothesis that it was necessary "to kill" in order to protect himself. State v. Demaree (Mo.), 362 S.W.2d 500.

(1963) In prosecution for robbery in first degree it was proper, assuming it not to be mandatory, for the court to instruct that voluntary intoxication is no excuse for commission of crime, although intoxication was not raised by defendant as an excuse, since the record was replete with testimony concerning intoxication of defendant. State v. Sawyer (Mo.), 365 S.W.2d 487.

(1963) Burden of proof instruction using phrase "establishes his guilt to your satisfaction" in conjunction with phrases "beyond a reasonable doubt" and "to a moral certainty" held not to minimize defendant's rights or the presumption of his innocence.State v. Caffey (Mo.), 365 S.W.2d 607.

(1963) In prosecution for second degree murder where facts created issue of self-defense the court erred in failing to instruct thereon notwithstanding the state's verdict directing instruction required jury to find that defendant acted "with malice aforethought". State v. Austin (Mo.), 367 S.W.2d 485.

(1963) Where defendant adduced substantial evidence as to his good character he was entitled to the benefit of that evidence if the jury found from a preponderance of the evidence that he was of good character, and an instruction that jury was to consider good character of defendant if proven to its reasonable satisfaction was error. State v. Jackson (Mo.), 369 S.W.2d 199.

(1963) Where information charged defendant "on or about the 30th day of March, A.D. 1962", did certain acts in violation of city ordinance, and all of evidence submitted related to events occurring on March 29, 1962, verdict directing instruction which, through typographical error, required jury to find defendant guilty if they found she did the alleged acts "on or about the 29th day of May" was reversible error. Kansas City v. Martin (A.), 369 S.W.2d 602.

(1963) In robbery prosecution wherein testimony of accomplice constituted major part of state's evidence, court did not err in failing to give sua sponte an accomplice instruction since such instruction would have been purely cautionary and collateral to principal issue involved. State v. Garton (Mo.), 371 S.W.2d 283.

(1964) Judge's statement to jury after submission of cause and in answer to their question about sentence to be imposed, that jury should refer to instructions and the three forms of verdict given them and that court would have no objection to jury using form of verdict that did not refer to the prior conviction if they felt it appropriate was not the giving of an instruction within rule requiring instruction of jury in writing.State v. Baugh (Mo.), 382 S.W.2d 608.

(1964) Court did not err in refusing to give instruction requested by defendant to the effect that jury could not consider failure of the accused to take the stand nor draw any unfavorable inference therefrom. State v. Perkins (Mo.), 382 S.W.2d 701.

(1964) Where the defendant was charged in one information with burglary and stealing, court was required without request to instruct jury that they could convict of one offense and acquit of the other and as there was nothing in the record to show that defendant waived this right, failure to so instruct was reversible error. State v. Qualls (Mo.), 383 S.W.2d 547.

(1966) If there was substantial evidence to support the submission of the offense, the trial court is required to give an instruction on the offense whether requested or not. State v. Adams (Mo.), 406 S.W.2d 608.

(1967) Court's failure to instruct jury on issue of excusable homicide because of accident in homicide prosecution where defendant testified that gun went off accidentally was plain error affecting substantial rights, although not set forth as an assignment of error in motion for new trial. State v. Haygood (Mo.), 411 S.W.2d 230.

(1967) An instruction which purports to cover the whole case but which entirely ignores a defense supported by evidence is erroneous and constitutes reversible error. State v. Drane (Mo.), 416 S.W.2d 105.

(1971) For error to instruct on the subject of good character when such an instruction was requested by the defendant in prosecution for misdemeanor of keeping intoxicants on premises licensed for sale of nonintoxicating beer, the judgment was reversed and case remanded. State v. Russo (A.), 470 S.W.2d 164.

(1973) Where defendant assigned as error the trial court's failure to instruct the jury as to the legal effect to be given to the evidence concerning defendant's breath test for blood alcohol, it was not grounds for setting aside the verdict in this misdemeanor case, where jury was not misdirected or the court did not refuse to give proper instructions offered by the defendant. State v. Kramme (A.), 491 S.W.2d 24.

(1974) The term "whenever necessary" in subdivision (4) means that such an instruction is necessary only when there is substantial evidence tending to show the good character of the defendant. State v. Antwine (Mo.), 506 S.W.2d 397.

(1975) In prosecution for second degree murder, where defendant was convicted of manslaughter, circumstantial evidence including appellant's attempt to procure false testimony, his flight from scene, his destruction and attempted destruction of evidence, and his admission of having sought to remove suspicion from himself by falsely stating that victim committed suicide was sufficient to establish submissible case and instruction on manslaughter was properly given although there was no evidence of provocation by victim. State v. Stapleton (Mo.), 518 S.W.2d 292.

(1987) It was error to give instruction on reputation of defendant where defendant did not present any evidence at trial as to his general reputation for good character. State v. Stone 731 S.W.2d 466 (Mo.App.S.D.).

546.370 - Exceptions may be taken as in civil cases.

On the trial of any indictment or prosecution for a criminal offense, exceptions to any decisions of the court may be made in the same cases and manner provided by law in all civil cases; and bills of exceptions shall be settled, signed, sealed and filed as now allowed by law in civil actions, and the same proceedings may be had to compel or procure the signing and sealing of such bills, and the return thereof, as in civil cases.

(RSMo 1939 § 4084)

Prior revisions: 1929 § 3695; 1919 § 4039; 1909 § 5245

CROSS REFERENCES:

Appeals in criminal cases, when granted, 547.070, 547.090

Assignment of error or joinder in crime not necessary in appeal or writ of error, 547.270

(1951) Where purported transcript of record did not contain certificate showing it to have been agreed to and allowed as a bill of exceptions nor was it shown to have been agreed to as required by § 512.110 and rules 1.31 and 1.34 of supreme court, review on appeal would be limited to record proper.State v. Bird (Mo.), 242 S.W.2d 576.

546.270 - Failure to testify not to prejudice defendant.

If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.

(RSMo 1939 § 4082)

Prior revisions: 1929 § 3693; 1919 § 4037; 1909 § 5243

(1951) Argument by prosecuting attorney that "defendant has not even testified" constitutes reversible error and when such statement is not competent for any purpose a general objection is sufficient. State v. Dupepe (Mo.), 241 S.W.2d 4.

(1952) Statement in argument on questions as to first and second degree murder, inquiring "What evidence do you have on the condition of his mind?" and stating "Even if you believe" witness "who, I tell you, was a perjurer" * * * and further statement that defendant shot deceased and inquiry "Did they make any defense of it?" held not improper comments on evidence. State v. Johnson, 362 Mo. 833, 245 S.W.2d 43.

(1954) Statement by prosecuting attorney that defense "offered no evidence at all" was not comment on failure of accused to testify in violation of this section. State v. Hayzlett (Mo.), 265 S.W.2d 321.

(1955) Where defendant's wife failed to testify prosecutor's query in argument, "Who can identify where he was that morning other than his wife and two kids?" held error as comment on failure of wife to testify. State v. Wyatt (Mo.), 276 S.W.2d 86.

(1955) Statement that there was no evidence on defendant's side and that state's evidence was uncontradicted held not comment on failure of defendant to testify. State v. Hardy (Mo.), 276 S.W.2d 90.

(1955) Prosecutor's statement that there was "no evidence here to refute what any of these people said" held not comment on failure of accused to testify. State v. Murray (Mo.), 280 S.W.2d 809.

(1955) Where prosecutor in objecting to statement of defense counsel that state witnesses had testified defendant told them he was just walking by burglarized premises, stated in effect that defendant had not testified in case, a mistrial should have been declared. State v. Lindner (Mo.), 282 S.W.2d 547.

(1957) Statement that "on one side is the state's evidence, not contradicted. And what is on the defense side? It is empty." held not comment on accused's failure to testify. State v. Hite (Mo.), 298 S.W.2d 411.

(1957) Where defendant takes stand, his failure to testify on specific facts in the case is a legitimate subject for comment by the state in argument. State v. Stidham (Mo.), 305 S.W.2d 7.

(1959) Statement in instruction on alibi defense that defendant "says he was not present at the time and place" etc. held not comment on defendant's failure to testify. State v. Heissler (Mo.), 324 S.W.2d 714.

(1962) Comment by state counsel that ". . . the State's evidence is unrefuted, it is undisputed, and it is undenied", held not be to comment on defendant's failure to testify. State v. Powell (Mo.), 357 S.W.2d 914.

1962) Statement by prosecuting attorney in closing argument that "when the state had concluded its evidence in this case the defense was free to offer any evidence it chose and none was forthcoming" was permissible comment where defendant offered no evidence. State v. Michael (Mo.), 361 S.W.2d 664.

(1964) Arguments by prosecuting attorney that the only evidence in the case was the evidence the state produced and that if jurors were accused of murder and were innocent and could prove it they would probably do so were not proper comments of failure of defendant to testify. State v. Perkins (Mo.), 382 S.W.2d 701.

(1964) Court did not err in refusing to give instruction requested by defendant to the effect that jury could not consider failure of the accused to take the stand nor draw any unfavorable inference therefrom. State v. Perkins (Mo.), 382 S.W.2d 701.

(1965) Prosecutors and judges may not comment adversely on the failure of a defendant to testify in a state criminal trial.Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L. Ed.2d 106.

(1966) Griffin v. State of California rule prohibiting prosecutors and judges from commenting adversely on failure of defendant to testify in state criminal trial does not apply retroactively.Teban v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453.

(1966) Statement by prosecutor that property was found in home of defendant, and that there has been no explanation as to how it got there does not constitute reference to defendant's failure to testify. State v. Kennedy (Mo.), 396 S.W.2d 595.

(1966) It is not error to refuse to give instruction relating to defendant's failure to testify in case, even when the instruction is requested by defendant. State v. Barker (Mo.), 399 S.W.2d 1.

(1966) Statement by prosecutor that "malice can be inferred from the facts; he intentionally shot him, and he has voiced here on different occasions that he shot him. One: 'I shot him down like a dirty dog.' It wasn't controverted. The defendant didn't deny it; there was no evidence" was not a reference to failure of defendant to testify. State v. Gregg (Mo.), 399 S.W.2d 7.

(1966) Statement by prosecuting attorney that "and at the close of the State's case the defendant had an opportunity to present any evidence that they wanted to show, and none was forthcoming" was not reference to accused's failure to testify.State v. Hodge (Mo.), 399 S.W.2d 65.

(1966) Statement by prosecutor that evidence on behalf of state was uncontradicted was not comment on defendant's failure to present evidence. State v. Caffey (Mo.), 404 S.W.2d 171.

(1969) Statement by prosecutor that the state's evidence was uncontradicted did not constitute a comment on the failure of defendant to take the witness stand. State v. Robb (Mo.), 439 S.W.2d 510.

(1972) Instruction to jury over defendant's objection, that defendant's failure to testify should not give rise to a presumption of guilt or inference of any nature was not error. State v. Smart (Mo.), 485 S.W.2d 90.

(1972) Prohibition against comment on defendant's failure to testify does not prohibit general comment on failure of accused to offer evidence. State v. Schrest (Mo.), 485 S.W.2d 96.

(1973) Held that when the trial court judge said to defendant "Will you be sworn, sir; are you going to testify?" constituted "plain error" and instructing jury to disregard does not cure the error. State v. Gray (A.), 503 S.W.2d 457.

(1974) Prosecutor's comment "that is to say, that the defendant himself elected not to testify" is reversible error. State v. McNeal (A.), 517 S.W.2d 187.

(1987) Argument focusing on the lack of evidence offered to explain the presence of stolen property in possession of defendant who did not testify on his own behalf in trial for burglary and theft is not comment on the defendant's failure to testify in violation of this section. State v. Masterson, 733 S.W.2d 40 (Mo.App.S.D.)

546.870 - Executions shall issue, when.

It shall be the duty of the clerk of the court having criminal jurisdiction for the county at the end of each term, to issue executions for all fines imposed, and the costs of conviction in criminal cases, during the term and remaining unpaid, which shall be executed in the same manner as executions in civil cases; and the property of the defendant may be seized and sold thereon, notwithstanding he may be in custody for the same demand.

(RSMo 1939 § 4120)

Prior revisions: 1929 § 3730; 1919 § 4074; 1909 § 5280

546.860 - All property bound for fine and costs.

The property, real and personal, of any person charged with a criminal offense, shall be bound from the time of his final conviction of such offense, for the payment of all fines and costs which he may be adjudged to pay.

(RSMo 1939 § 4119)

Prior revisions: 1929 § 3729; 1919 § 4073; 1909 § 5279

546.660 - Section 546.650 construed.

Section 546.650 shall not extend to convictions for writing or publishing any libel; nor shall any such security be hereafter required by any court upon any complaint, prosecution or conviction for any such writing or publishing.

(RSMo 1939 § 4098)

Prior revisions: 1929 § 3709; 1919 § 4053; 1909 § 5259

546.560 - Presence of prisoner in court.

If the defendant is in custody, he must be brought before the court for judgment; if he is not present when his personal attendance is necessary, the court may order the clerk to issue a warrant for his arrest, which may be served in any county in the state, as a warrant of arrest in other cases.

(RSMo 1939 § 4101)

Prior revisions: 1929 § 3712; 1919 § 4056; 1909 § 5262

(1956) Where defendant is heard on motion for new trial, failure of record to show allocution is not error. State v. Juvenile Defendants (A.), 291 S.W.2d 628.

(1967) Right of allocution is applicable only after conviction upon trial by jury. State v. McClanahan (Mo.), 418 S.W.2d 71.

546.060 - Practice in civil case to apply, when.

The proceedings prescribed by law in civil cases, in respect to the impaneling of jurors, the keeping them together, and the manner of rendering their verdict, shall be had upon trials on indictments and prosecutions for criminal offenses, except in cases otherwise provided by statute.

(RSMo 1939 § 4068)

Prior revisions: 1929 § 3679; 1919 § 4023; 1909 § 5229

546.260 - Defendant may testify in own behalf — spouse may testify for husband or wife — spouse may testify against husband or wife, when.

1.No person shall be incompetent to testify as a witness in any criminal cause or prosecution by reason of being the person on trial or examination, or by reason of being the husband or wife of the accused, but any such facts may be shown for the purpose of affecting the credibility of such witness; provided, that no person on trial or examination, nor wife or husband of such person, shall be required to testify, but any such person may testify at his or her option either on behalf of or against the defendant, and shall be liable to cross-examination, as to any matter referred to in his examination in chief, and may be contradicted and impeached as any other witness in the case; provided, that in no case shall husband or wife, when testifying under the provisions of this section, be permitted to disclose confidential communications had or made between them in the relation of such husband and wife.

2.Notwithstanding subsection 1 of this section or any other provision of law to the contrary, in any criminal prosecution under chapter 565, 566 or 568, involving an alleged victim under the age of eighteen, a spouse shall be a competent witness against a defendant spouse, and no spousal privilege as set forth in subsection 1 of this section or any other provision of law shall exist.

(RSMo 1939 § 4081, A.L. 1985 H.B. 366, et al.)

Prior revisions: 1929 § 3692; 1919 § 4036; 1909 § 5242

Effective 7-19-85

(1952) The "matter referred to in his examination in chief" means the things he testifies about. If defendant in chief in a general way refers to a subject, he may be examined in detail as to that subject. State v. Christian (Mo.), 245 S.W.2d 895.

(1952) Where defendant ex-policeman testified as to his work as policeman and his training, cross-examination as to whether he got in trouble during training was improper but general objection not sufficient to preserve objection. Specific objection on ground no conviction shown made at close of cross-examination also not sufficient to preserve same. State v. Slaten (Mo.), 252 S.W.2d 330.

(1953) Where defendants on direct examination denied stealing corn, they could be cross-examined as to their signatures to conflicting statements as to crime made in prosecuting attorney's office, even though statements were not introduced and particularly is this so where stenographer testified without objection from her notes as to matters contained in such statements.State v. Kaufman (Mo.), 254 S.W.2d 640.

(1953) Where defendant in criminal case offered himself as witness and, on cross-examination for purpose of impeachment, gave false answers as to his prior convictions of crime, he was guilty of perjury. State v. Swisher, 364 Mo. 157, 260 S.W.2d 6.

(1956) Where officer was called by defense in robbery prosecution to impeach state's witnesses, his cross-examination, for the purpose of showing defendant had been arrested on another charge, held error. State v. Ingram (Mo.), 286 S.W.2d 733.

(1957) Wife, testifying voluntarily, held competent witness against her husband in prosecution for acts constituting crime of personal violence against her child. State v. Kollenborn (Mo.), 304 S.W.2d 855.

(1958) In prosecution upon charge of performing an abortion where defendant's testimony on direct examination was in effect a general denial, cross-examination of defendant in regard to the right of access to and control of the house in which state's evidence tended to show the abortion took place was proper. State v. Scown (Mo.), 312 S.W.2d 782.

(1958) Under common law court did not err in permitting wife to testify on behalf of state in prosecution of defendant for statutory rape of his eight-year-old daughter as to what she found when she returned home and found defendant and the child. State v. Greer (Mo.), 313 S.W.2d 711.

(1959) Where defendant in criminal case took stand, cross-examination of him with respect to his former convictions was a proper method of impeachment. State v. Reece (Mo.), 324 S.W.2d 656.

(1959) Where husband on trial for murder testified to an alleged confidential communication between him and his wife and by such testimony attempted to blacken her reputation for his own advantage, he was held to have waived her incompetency and her testimony as to the communication and as to the commission of the crime was properly admitted in rebuttal.State v. Bledsoe (Mo.), 325 S.W.2d 762.

(1959) Where defendant took stand as witness, his cross-examination as to prior convictions, including misdemeanor convictions, held proper. State v. Ivory (Mo.), 327 S.W.2d870.

(1960) Where defendant makes sweeping denial of commission of crime in testimony on his own behalf, he is liable to cross-examination, contradiction and impeachment as any other witness. State v. Beishir (Mo.), 332 S.W.2d 898.

(1960) Spouse of individual charged with crime is not precluded from testifying against coindictee of spouse where such coindictee is separately tried. State v. Gyngard (Mo.), 333 S.W.2d 73.

(1960) Where defendant in criminal case takes stand as witness in his own behalf he may be cross-examined as any other witness with respect to former convictions upon the issue of his credibility as a witness. State v. Morton (Mo.), 338 S.W.2d 858.

(1961) After asking a series of prejudicial and improper questions of defendant which related to matters beyond scope of direct examination objections to which were sustained by the court, comment by prosecuting attorney that "if the court please, we have got the right to put on some testimony from this witness" prejudiced the rights of defendant and was not relieved by direction of court to disregard the statement. State v. Sarten (Mo.), 344 S.W.2d 1.

(1962) Where defendant, in prosecution for subornation of perjury, testified as to his truthfulness it was proper for state to cross-examine defendant regarding prior jail sentence and fine for contempt of court for false swearing. State v. Baldwin (Mo.), 358 S.W.2d 18.

(1962) Admission in evidence of photograph of defendant taken after arrest showing defendant's hair to be long where at time of trial he had a crew cut and identity of defendant was disputed, upheld against contention it compelled defendant to testify against himself. State v. Sanders (Mo.), 358 S.W.2d 45.

(1962) Defendant in robbery prosecution, by taking the stand and testifying in his own defense, waived the error, if any, in requiring him to be sworn before exhibiting himself before jury in hat, sweater, gloves and stocking mask worn by robber.State v. Byrd (Mo.), 360 S.W.2d 614.

(1963) In prosecution for carrying a concealed weapon it was prejudicial error to admit testimony in rebuttal that defendant had remained silent when asked by officer at time of arrest why he was carrying the pistol. State v. Vainikos (Mo.),366 S.W.2d 423.

(1966) Credibility of defendant who elects to take stand in his own behalf may be attacked like that of any other witness by showing prior convictions. State v. McClain (Mo.), 404 S.W.2d 186.

(1970) The right of an accused to testify in his own behalf is a statutory and not a constitutional right. State v. Hutchinson (Mo.), 458 S.W.2d 553.

(1974) Cross-examination as to whether defendant changed coats with a codefendant before a police lineup was proper since on direct examination the denial of guilt by the defendant was broad enough to allow evidence of consciousness of guilt or a disposition to conceal the alleged crime as indicated by the changing of coats. State v. Kirk (A.), 510 S.W.2d 196.

(1976) When defendant testified that he did not shoot victim but that third person did, evidence that defendant attempted to suborn perjury in support of his testimony constitutes direct contradiction of his examination in chief and is admissible to impeach him. State v. Moore (A.), 546 S.W.2d 10.

(1977) Held, a person may testify against his spouse, the privilege belongs to the witness and must be asserted by the witness.State v. Frazier (A.), 550 S.W.2d 590.

(1977) Where defendant testified on direct examination that he had never been "in trouble" except for one instance, cross-examination as to prior arrests was permissible. State v. Payton (A.), 559 S.W.2d 551.

(1986) The husband-wife privilege does not apply to communications relating to contemplated future crimes. State v. Heistand (Mo.banc), 708 S.W.2d 125.

(1987) Person on trial for selling marijuana who testified in his own behalf was subject to cross examination on subject of identity of supplier pursuant to this section in view of defendant's numerous references to supplier and defendant's implication that defendant was motivated to sell marijuana to pay a cocaine debt owed to supplier. State v. McClintic, 731 S.W.2d 853 (Mo.App.S.D.).

546.360 - Defense of former jeopardy may be proved, when.

In all criminal cases, where the defendant is charged with any offense against the laws of this state, the fact of the former acquittal or conviction of such defendant of such offense may be shown under the general issue or plea of not guilty.

(RSMo 1939 § 4053)

Prior revisions: 1929 § 3664; 1919 § 4007

546.540 - Confinement of insane persons, costs paid, how.

The sheriff or other officer having the custody of persons committed to the director of the department of mental health as provided in section 552.040 shall, if he deems it necessary to their safe custody, confine them to the county jail until they shall be removed to a state hospital.If all things needful be not otherwise supplied, he shall furnish them, and, in such cases, the supplies for the indigent shall be paid for by the proper county commissions out of the county treasuries; and supplies for others than the indigent shall be repaid out of their estates, and may be recovered by suit in the name of such officer.

(RSMo 1939 § 9351, A.L. 1965 p. 331)

Prior revisions: 1929 § 8658; 1919 § 12301; 1909 § 1433

546.740 - Execution, witnesses.

The chief administrative officer of the correctional center, or his duly appointed representative shall be present at the execution and the director of the department of corrections shall invite the presence of the attorney general of the state, and at least eight reputable citizens, to be selected by him; and he shall at the request of the defendant, permit such clergy or religious leaders, not exceeding two, as the defendant may name, and any person, other than another incarcerated offender, relatives or friends, not to exceed five, to be present at the execution, together with such peace officers as he may think expedient, to witness the execution; but no person under twenty-one years of age shall be allowed to witness the execution.

(RSMo 1939 § 4114, A.L. 1988 H.B. 1340 & 1348, A.L. 1990 H.B. 974, A.L. 1995 H.B. 424)

Prior revisions: 1929 § 3724; 1919 § 4068; 1909 § 5274

(2014) Specific duties imposed under section prevail over general statutory discretion granted by subsection 6 of section 217.025; warden therefore lacked discretion to deny defendant's request to have non-incarcerated defendant present at his execution.State ex rel. Taylor v. Russell, 449 S.W.3d 380 (Mo.banc).

546.040 - Issues of fact to be tried by jury.

All issues of fact in any criminal cause shall be tried by a jury, to be selected, summoned and returned in a manner prescribed by law.

(RSMo 1939 § 4051)

Prior revisions: 1929 § 3662; 1919 § 4005; 1909 § 5212

CROSS REFERENCE:

Defendant may waive trial by jury, when, Const. Art. I § 22(a)

546.550 - Presence of prisoner at rendition of judgment.

For the purpose of judgment, if the conviction be for an offense punishable by imprisonment, or imprisonment be assessed as punishment by the jury, the defendant must be personally present; if for a fine only, he must be personally present, or some responsible person must undertake for him to pay the judgment and costs; judgment may then be rendered in his absence.

(RSMo 1939 § 4100)

Prior revisions: 1929 § 3711; 1919 § 4055; 1909 § 5261

546.650 - Court may require security to keep the peace.

The court before which any person shall be convicted of any criminal offense shall have power, in addition to the sentence prescribed or authorized by law, to require such person to give security to keep the peace or be of good behavior, or both, for a term not exceeding two years, or to stand committed until such security be given.

(RSMo 1939 § 4097)

Prior revisions: 1929 § 3708; 1919 § 4052; 1909 § 5258

546.750 - Warrant of execution, how returned.

After the execution the chief administrative officer of the correctional facility shall make a return upon the death warrant to the court by which the judgment was rendered, showing the time, mode and manner in which it was executed.

(RSMo 1939 § 4115, A.L. 1988 H.B. 1340 & 1348, A.L. 1990 H.B. 974)

Prior revisions: 1929 § 3725; 1919 § 4069; 1909 § 5275

546.250 - Person injured may testify.

No person shall be rendered incompetent to testify in criminal causes by reason of his being the person injured or defrauded, or intended to be injured or defrauded, or that would be entitled to satisfaction for the injury, or is liable to pay the costs of the prosecution.

(RSMo 1939 § 4078)

Prior revisions: 1929 § 3689; 1919 § 4033; 1909 § 5239

CROSS REFERENCE:

Civil practice as to witnesses in civil and criminal trials, 491.070

546.050 - Misdemeanors may be tried by court.

But the defendant and prosecuting attorney, with the assent of the court, may submit the trial of misdemeanors to the court, whose finding in all such offenses shall have the force and effect of the verdict of a jury.

(RSMo 1939 § 4052)

Prior revisions: 1929 § 3663; 1919 § 4006; 1909 § 5213

(1953) On appeal, in misdemeanor trial where jury was waived, the finding of the court on the merits must be allowed to stand if supported by substantial evidence. State v. Sargent, 241 A. 1085, 256 S.W.2d 265.

(1953) In usury prosecution, where jury is waived and requested declarations of law state correct principles and there is substantial evidence on which to base them, and they are seasonably offered, it is error to refuse to give them. State v. Sargent, 241 A. 1085, 256 S.W.2d 265.

(1962) Where defendant in a misdemeanor case is present and represented by counsel, and there is no request for a jury, his consent to be tried by the court is presumed. State v. Belleville (A.), 362 S.W.2d 77.

546.900 - Stay of execution granted, when.

In case of a conviction for any offense where the punishment has been fixed at a fine or imprisonment in the county jail, or workhouse, or by both such fine and imprisonment, the court in which any such conviction was had, or the judge thereof in vacation, or any associate circuit judge before whom such conviction was had, may, for good cause shown, by order entered of record, or in writing signed by such judge or associate circuit judge, grant a stay of execution on any such judgment of conviction and sentence thereon for a definite period of time to be fixed by the court, judge or associate circuit judge granting the same, not to exceed six months, upon the defendant or some person for him entering a recognizance conditioned for his surrendering himself in execution at the time and place fixed by the judgment of such conviction or sentence on a day to be named in such order.

(RSMo 1939 § 4129)

Prior revisions: 1929 § 3739; 1919 § 4085; 1909 § 5291

546.800 - Pregnancy of female convict under death sentence — proceedings.

If, after any female convict shall be sentenced to the punishment of death, the officer having charge of her person shall have reason to suspect that she is pregnant, he shall in like manner summon a jury of six persons, not less than three of whom shall be physicians, and shall give notice thereof to the prosecuting attorney of the county where such criminal proceedings originated, or to the circuit attorney of the city of St.Louis, if such criminal proceedings originated in that city, who shall attend, and the proceedings shall be had as provided.

(RSMo 1939 § 4196, A.L. 1969 p. 77)

Prior revisions: 1929 § 3806; 1919 § 4152; 1909 § 5360

546.300 - Existence of corporation, how proved.

If on the trial or other proceeding in a criminal cause, the existence, constitution or powers of any banking company or corporation, shall become material, or be in any way drawn in question, it shall not be necessary to produce a certified copy of the charter or act of incorporation, but the same may be proved by general reputation, or by the printed statute book of the state, government or country by which such corporation was created.

(RSMo 1939 § 4077)

Prior revisions: 1929 § 3688; 1919 § 4032; 1909 § 5238

(1954) Existence of banking corporation held shown by evidence of its general reputation, by testimony of its cashier and by testimony of a lawyer from his investigation of the records.State v. Weed (Mo.), 271 S.W.2d 557.

546.400 - Verdict must show degree of guilt.

Upon the trial of any indictment for any offense where by law there may be conviction for different degrees of such offense, the jury, if they convict the defendant of a degree of the offense inferior to the offense alleged in the indictment, shall specify in their verdict of what degree of the offense they find the defendant guilty.

(RSMo 1939 § 4090)

Prior revisions: 1929 § 3701; 1919 § 4045; 1909 § 5251

(1960) In prosecutions for stealing personal property of over fifty dollars in value defendant contending value was less than fifty dollars, the court instructed the jury to fix the punishment in accordance with the way they found the value of the property and the verdict finding the defendant "guilty of stealing and assess his punishment at two and one-half years in the Missouri department of corrections" was responsive and free from ambiguity as the offense of stealing does not have different degrees but different penalties. State v. McCarthy (Mo.), 336 S.W.2d 411.

546.700 - Sentence not executed, procedure.

Whenever, for any reason, any convict sentenced to the punishment of death shall not have been executed pursuant to such sentence, and the cause shall stand in full force, the supreme court, or the court of the county in which the conviction was had, on the application of the prosecuting attorney, shall issue a writ of habeas corpus to bring such convict before the court; or if he be at large, a warrant for his apprehension may be issued by such court, or any judge thereof.

(RSMo 1939 § 4110)

Prior revisions: 1929 § 3720; 1919 § 4064; 1909 § 5270

CROSS REFERENCE:

Habeas corpus, generally, Chap. 532

546.600 - Copy of judgment of conviction to sheriff.

Whenever a sentence of imprisonment in a county jail shall be pronounced upon any person convicted of any offense, the clerk of the court shall, as soon as may be, make out and deliver to the sheriff of the county a transcript of the entry of such conviction, and of the sentence thereupon, duly certified by such clerk, which shall be sufficient authority to such sheriff to execute such sentence, and he shall execute the same accordingly.

(RSMo 1939 § 4105)

Prior revisions: 1929 § 3716; 1919 § 4060; 1909 § 5266

CROSS REFERENCE:

Appeal or writ of error not to act as stay of execution, exceptions, 547.130 to 547.190, 547.330

546.010 - Proceedings upon information, how conducted.

The trial and all proceedings upon any information filed in a court of record shall be governed by the law and practice applicable to trials upon indictments in said court.

(RSMo 1939 § 3899)

Prior revisions: 1929 § 3509, 1919 § 3854; 1909 § 5062

546.610 - Copy of commitment to sheriff — prisoner, how and where delivered.

When any offender shall be committed to the department of corrections the clerk of the court in which the sentence was passed shall forthwith deliver a certified copy thereof to the sheriff of the county, who shall, without delay, either in person or by a general and usual deputy, cause such offender to be transported to a place designated by the director of the department of corrections and delivered to the chief administrative officer thereof.

(RSMo 1939 § 4106, A.L. 1971 S.B. 293, A.L. 1990 H.B. 974)

Prior revisions: 1929 § 3717; 1919 § 4061; 1909 § 5267

CROSS REFERENCE:

Commitments to state penal institutions, how made, 217.305

546.710 - Execution warrant issued to the director of department of corrections for execution of offender.

Upon such convicted offender being brought before the court, they shall proceed to inquire into the facts, and if no legal reasons exist against the execution of sentence, such court shall issue a warrant to the director of the department of corrections, for the execution of the prisoner at the time therein specified, which execution shall be obeyed by the director accordingly.

(RSMo 1939 § 4111, A.L. 1988 H.B. 1340 & 1348, A.L. 1990 H.B. 974, A.L. 1995 H.B. 424)

Prior revisions: 1929 § 3721; 1919 § 4065; 1909 § 5271

546.810 - If found pregnant — sentence suspended.

The inquisition shall be signed by the jury and the officer in charge of such convict, and if it appear that such female convict is pregnant with child, her execution shall be suspended and the inquisition shall be transmitted to the governor.

(RSMo 1939 § 4197)

Prior revisions: 1929 § 3807; 1919 § 4153; 1909 § 5361

546.030 - Prisoner must be present in court, when.

No person indicted for a felony can be tried unless he be personally present, during the trial; nor can any person be tried or be allowed to enter a plea of guilty in any other case unless he be personally present, or the court and prosecuting attorney shall consent to such trial or plea in the absence of the defendant; and every person shall be admitted to make any lawful proof by competent witnesses or other testimony in his defense; provided, that in all cases the verdict of the jury may be received by the court and entered upon the records thereof in the absence of the defendant, when such absence on his part is willful or voluntary, and when so received and entered shall have the same force and effect as if received and entered in the presence of such defendant; and provided further, that when the record in the appellate court shows that the defendant was present at the commencement or any other stage of the trial, it shall be presumed, in the absence of all evidence in the record to the contrary, that he was present during the whole trial.

(RSMo 1939 § 4054)

Prior revisions: 1929 § 3665; 1919 § 4008; 1909 § 5214

(1956) Where defendant charged with first degree murder was at liberty on bond and jury was discharged on its failure to reach verdict during his voluntary, although inadvertent absence from courtroom, his retrial did not constitute double jeopardy. State v. McCrary, 365 Mo. 799, 287 S.W.2d 785.

(1959) Absence of defendant's counsel from courtroom at time verdict was returned violated no constitutional right of defendant. State v. Smith (Mo.), 324 S.W.2d 707.

(1961) Defendant was not deprived of constitutional right to appear and defend in person where he was represented by competent counsel throughout all stages of trial and was personally present at all times except when voluntarily absent for short time during proceedings in chambers when record of prior convictions was presented to judge under second offender law. State v. Colbert (Mo.), 344 S.W.2d 115.

(1967) Accused's presence is not necessary during proceedings which are not part of the trial, such as preliminary or formal proceedings or motions which do not affect his guilt or innocence. State v. Durham (MO.), 416 S.W.2d 79.

(1968) Where transcript on appeal did not affirmatively show defendant who was charged with a misdemeanor present at trial and no request for trial in his absence appeared in record, conviction could not stand. State v. Cook (MO.), 432 S.W.2d 345.

(1976) Right to appear and defend in criminal prosecutions is a broader right than the statutory right to be personally present at the trial. A defendant may waive these rights and his counsel acting unilaterally may waive defendant's right to be present at a pretrial motion to suppress an oral confession.State v. Sanders (A.), 539 S.W.2d 458.

546.730 - Place of executing judgment of death, duties of director.

A judgment of death must be executed within a correctional center of the department of corrections; and such execution shall be under the supervision and direction of the director of the department of corrections.

(RSMo 1939 § 4113, A.L. 1988 H.B. 1340 & 1348, A.L. 1990 H.B. 974, A.L. 1995 H.B. 424)

546.820 - Execution ordered when causes for suspension cease.

Whenever the governor shall be satisfied that the cause of such suspension no longer exists, he shall issue his warrant, appointing a day for the execution of such convict, pursuant to her sentence; or he may, at his discretion, commute her punishment to imprisonment in the penitentiary for life.

(RSMo 1939 § 4198)

Prior revisions: 1929 § 3808; 1919 § 4154; 1909 § 5362

546.020 - Plea of not guilty, not formally tendered.

When a person shall be arraigned upon any indictment or information, it shall not be necessary to ask him how he will be tried; and if he deny the charge in any form, or require a trial, or if he refuse to plead or answer and in all cases when he does not confess the charge to be true, a plea of not guilty shall be entered, and the same proceedings shall be had, in all respects, as if he had formally pleaded not guilty to such indictment or information; provided, however, that no judgment rendered in any criminal case shall be reversed, set aside or for naught held for the reason that the record does not show that the defendant was arraigned and a plea of not guilty entered, where a trial was had in all respects as though the defendant had been arraigned and had formally tendered the general issue under a plea of not guilty.

(RSMo 1939 § 4004)

Prior revisions: 1929 § 3615; 1919 § 3958; 1909 § 5165

(1951) Where jury was present when information was read and was permitted to hear defendant's refusal to plead thereto but where court gave instruction that information "is a mere formal statement ... and is no evidence whatever of his guilt" there was no prejudicial error. State v. Lamb (Mo.), 239 S.W.2d 496.

546.720 - Death penalty — manner of execution — execution team to be selected, members, confidentiality.

1.The manner of inflicting the punishment of death shall be by the administration of lethal gas or by means of the administration of lethal injection.And for such purpose the director of the department of corrections is hereby authorized and directed to provide a suitable and efficient room or place, enclosed from public view, within the walls of a correctional facility of the department of corrections, and the necessary appliances for carrying into execution the death penalty by means of the administration of lethal gas or by means of the administration of lethal injection.

2.The director of the department of corrections shall select an execution team which shall consist of those persons who administer lethal gas or lethal chemicals and those persons, such as medical personnel, who provide direct support for the administration of lethal gas or lethal chemicals.The identities of members of the execution team, as defined in the execution protocol of the department of corrections, shall be kept confidential.Notwithstanding any provision of law to the contrary, any portion of a record that could identify a person as being a current or former member of an execution team shall be privileged and shall not be subject to discovery, subpoena, or other means of legal compulsion for disclosure to any person or entity, the remainder of such record shall not be privileged or closed unless protected from disclosure by law.The section of an execution protocol that directly relates to the administration of lethal gas or lethal chemicals is an open record, the remainder of any execution protocol of the department of corrections is a closed record.

3.A person may not, without the approval of the director of the department of corrections, knowingly disclose the identity of a current or former member of an execution team or disclose a record knowing that it could identify a person as being a current or former member of an execution team.Any person whose identity is disclosed in violation of this section shall:

(1)Have a civil cause of action against a person who violates this section;

(2)Be entitled to recover from any such person:

(a)Actual damages; and

(b)Punitive damages on a showing of a willful violation of this section.

4.Notwithstanding any provision of law to the contrary, if a member of the execution team is licensed by a board or department, the licensing board or department shall not censure, reprimand, suspend, revoke, or take any other disciplinary action against the person's license because of his or her participation in a lawful execution.All members of the execution team are entitled to coverage under the state legal expense fund established by section 105.711 for conduct of such execution team member arising out of and performed in connection with his or her official duties on behalf of the state or any agency of the state, provided that moneys in this fund shall not be available for payment of claims under chapter 287.

(RSMo 1939 § 4112, A.L. 1988 H.B. 1340 & 1348, A.L. 1990 H.B. 974, A.L. 2007 H.B. 820)

(2015) Confidentiality of execution team members does not constitute a content-based restriction on access to information that merits strict scrutiny under First Amendment.Zink v. Lombardi, 783 F.3d 1089 (8th Cir.).

(2015) Director of Department of Corrections has some connection with enforcement of section and thus Ex parte Young exception to Eleventh Amendment immunity applies to permit suit against such officer.American Civil Liberties Union of Missouri v. Lombardi, 59 F.Supp.3d 954 (W.D.Mo.).

546.620 - Power of sheriff to summon aid.

Such sheriff or deputy, while conveying a convict to the penitentiary, shall have the same power and like authority to require the assistance of any citizen of this state in securing such convict, and retaking him if he shall escape, as if such sheriff or deputy were in the county in which he is such officer; and all persons who shall neglect or refuse to assist such sheriff or deputy, when required, shall be liable to the same penalties as if such officer were in his own county.

(RSMo 1939 § 4107)

Prior revisions: 1929 § 3718; 1919 § 4062; 1909 § 5268

546.280 - Defendant may be discharged to testify for state.

When two or more persons shall be jointly indicted or prosecuted, the court may, at any time before the defendants have gone into their defense, direct any defendant to be discharged, that he may be a witness for the state.A defendant shall, also, when there is not sufficient evidence to put him on his defense, at any time before the evidence is closed, be discharged by the court for the purpose of giving his testimony for a codefendant.The order of discharge shall be a bar to another prosecution for the same offense.

(RSMo 1939 § 4080)

Prior revisions: 1929 § 3691; 1919 § 4035; 1909 § 5241

CROSS REFERENCE:

Persons convicted of crime competent witnesses, 491.050

(1968) This section does not prevent codefendant from testifying for state after the charge against him has been disposed of by plea of guilty and before sentencing. Irregularity of asking status of witness' case in hearing of jury not prejudiced in this case. State v. Blevins (Mo.), 427 S.W.2d 367.

546.380 - Court not to charge, but may instruct jury.

The court shall not, on the trial of the issue in any criminal case, sum up or comment upon the evidence, or charge the jury as to matter of fact, unless requested to so do by the prosecuting attorney and the defendant or his counsel; but the court may instruct the jury in writing on any point of law arising in the cause.

(RSMo 1939 § 4083)

Prior revisions: 1929 § 3694; 1919 § 4038; 1909 § 5244

(1954) Where judge, after jury began deliberations, pointed out expense of trial and desirability of reaching verdict and told them they should respect opinions of others and attempt to arrive at a verdict while adhering to instructions, there was no error. State v. Roberts (Mo.), 272 S.W.2d 190.

(1956) An inquiry as to how a jury stands numerically after it has deliberated two hours is not coercive per se but whether it is coercive must be determined on the record of what was said and done at the time. State v. Baker (Mo.), 293 S.W.2d 900.

(1956) Statement by court in ruling objection in presence of jury, to the effect that drunkenness of prosecuting witness constituted no defense in robbery case held not prejudicial error.State v. Swiney (Mo.), 296 S.W.2d 104.

(1957) Remarks of court held not comment on evidence. State v. Moore (Mo.), 303 S.W.2d 60.

(1958) In robbery prosecution where defendant was accused of giving signal to confederates by lighting match and where witnesses testified they did not see cigarette in defendant's hand, comment by judge that as matter of law evidence was that defendant did not have cigarette held unwarranted and erroneous. State v. Fields (Mo.), 314 S.W.2d 723.

(1959) Statement by court on voir dire examination that information charged two prior convictions, although information charged only one, held not prejudicial in case where defendant testified on direct examination that he entered pleas of guilty to other offenses. State v. Rose (Mo.), 325 S.W.2d 485.

(1960) Instruction not requested by defendant, limiting jury's consideration of any other offense participated in by defendant to sole purpose of shedding light upon identification and presence of defendant at the time of shooting of deceased was cautionary instruction for benefit of defendant and not improper.Use of word "alibi" in another instruction was not prejudicial. State v. Griffin (Mo.), 336 S.W.2d 364.

(1964) Statement by court to jury after it had retired and in answer to a question relating to time defendant would serve if given life sentence and whether or not defendant could be paroled constituted prejudicial error. State v. Cornett (Mo.), 381 S.W.2d 878.

546.080 - Variance between charge and proof.

Whenever on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, in the Christian name or surname, or both the Christian name and surname, or other description whatsoever, or any person whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant.

(RSMo 1939 § 3951)

Prior revisions: 1929 § 3562; 1919 § 3907; 1909 § 5114

(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.

546.580 - Section 546.570 deemed directory, when.

If the defendant has been heard on a motion for a new trial, or in arrest of judgment, and in all cases of misdemeanor, the requirements of section 546.570 shall be deemed directory, and the omission to comply with it shall not invalidate the judgment or sentence of the court.

(RSMo 1939 § 4103)

Prior revisions: 1929 § 3714; 1919 § 4058; 1909 § 5264

(1952) Where record showed motion for new trial filed and overruled but failed to show allocution, sentence and judgment, appeal was premature and cause must be remanded.State v. Bledsoe (Mo.), 249 S.W.2d 457; (1952) State v. Skaggs (Mo.), 248 S.W.2d 635.

(1967) This section is mandatory and court has no power to impose concurrent sentences. State v. McClanahan (Mo.), 418 S.W.2d 71.

546.680 - Capital cases, duty of court.

When judgment of death is rendered by any court of competent jurisdiction, a warrant signed by the judge and attested by the clerk under the seal of the court must be drawn and delivered to the sheriff.It must state the conviction and judgment and appoint a day on which the judgment must be executed, which must not be less than thirty nor more than sixty days from the date of judgment, and must direct the sheriff to deliver the defendant, at a time specified in said order, not more than ten days from the date of judgment, to the chief administrative officer of a correctional facility of the department of corrections, for execution.

(RSMo 1939 § 4108, A.L. 1988 H.B. 1340 & 1348)

Prior revisions: 1929 § 3719; 1919 § 4063; 1909 § 5269

546.880 - May be consigned to workhouse, when.

Whenever any person shall, because of a conviction for any misdemeanor or felony, be subject to imprisonment in a county jail, such person may, at the discretion of the court, be confined in any workhouse or other place of imprisonment belonging to any town or city in such county, or in any incorporated city from which said county has been separated by law; provided, the county commission of such county shall have contracted or agreed with the town or city owning such workhouse or other place of confinement for the custody and keeping of such convicts; and cities or towns having no workhouse or houses shall have authority to work convicted persons on the streets, bridges or other public works in such city or town.

(RSMo 1939 § 4121)

Prior revisions: 1929 § 3731; 1919 § 4075; 1909 § 5281

546.890 - Persons committed to workhouse imprisoned for full term.

All persons committed to any workhouse or other places of confinement under the provisions of section 546.880 shall be imprisoned for the full term of their sentence, unless sooner discharged by due course of law.

(RSMo 1939 § 4122)

Prior revisions: 1929 § 3732; 1919 § 4076; 1909 § 5282

546.390 - Verdict of jury, how rendered.

When the jury have agreed upon a verdict, they must be conducted into court by the officer having them in charge.If they all appear, their verdict must be rendered in open court.If any shall fail to appear, the rest must be discharged without giving a verdict, and the cause must be tried again at the same or next term, as in the case of a failure of the jury to agree upon a verdict.

(RSMo 1939 § 4089)

Prior revisions: 1929 § 3700; 1919 § 4044; 1909 § 5250

CROSS REFERENCE:

Verdict may be returned on Sunday, 476.250

546.090 - Court may amend record, when — clerk to certify corrections.

Upon the trial of any indictment or information the court may at any stage of the proceeding, in furtherance of justice, amend or supply any pleading, writ, process, entry, return or other proceedings; and the court in which the indictment was found, or the information filed, or in which the trial is had, may at any time before final disposition of the cause, either in such court or the court to which the same may have been appealed, and, whether at the same or different term of court, amend or supply any record in accordance with the fact.If the same be pending on appeal at the time any such record is amended or supplied, the part thereof so amended or supplied shall be immediately certified to the appellate court by the clerk of such trial court.

(RSMo 1939 § 3954)

Prior revision: 1929 § 3565

(1953) Reference in argument by state's attorney to defendant as "spook" and "burglar" held not error where court admonished jury that there was no justification for the statement and directed that it be stricken and disregarded entirely.State v. Rousslang (Mo.), 258 S.W.2d 627.

546.590 - Judgment to be entered by clerk.

Whenever a judgment upon a conviction shall be rendered in any court, the clerk of such court shall enter such judgment fully on the minutes, stating briefly the offense for which such conviction shall have been had, and the court shall inspect such entries and conform them to the facts; but the omission of this duty, either by the clerk or judge, shall in nowise affect or impair the validity of the judgment.

(RSMo 1939 § 4104)

Prior revisions: 1929 § 3715; 1919 § 4059; 1909 § 5265

546.690 - Statement of conviction and judgment to governor.

The judge of a court at which a conviction is had must, immediately after the conviction, transmit to the governor of the state, by mail or otherwise, a statement of the conviction and judgment.

(RSMo 1939 § 4109)

CROSS REFERENCE:

Pardons, governor's powers, conditions and restrictions, 217.800

546.902 - Municipalities in St. Louis County, authority to enact ordinances and enforce them with fines or imprisonment.

Any municipality located within any county of the first classification with a population in excess of nine hundred thousand, for any purpose or purposes mentioned in this chapter, may enact and make all necessary ordinances, rules and regulations; and they may enact and make all such ordinances and rules, not inconsistent with the laws of the state, as may be expedient for maintaining the peace and good government and welfare of the city and its trade and commerce; and all ordinances may be enforced by prescribing and inflicting upon its inhabitants, or other persons violating the same, such fine not exceeding one thousand dollars, and such imprisonment not exceeding three months, or both such fine and imprisonment, as may be just for any offense, recoverable with costs of suit, together with judgment of imprisonment, until the fine and costs are paid or satisfied; and any person committed for the nonpayment of fine and costs, or either, may be compelled to work out the same as herein provided; but, in any case wherein the penalty for an offense is fixed by any statute, the council shall affix the same penalty by ordinance for the punishment of such offense, except that imprisonments, when made under city ordinances, may be in the city prison or workhouse instead of the county jail.

(L. 1995 H.B. 424 § 8)

546.095 - Offense not cognizable before associate circuit judge — procedure.

If, in the progress of any trial before an associate circuit judge, it shall appear that the accused ought to be put upon his trial for an offense not cognizable before an associate circuit judge, the judge shall immediately stop all further proceedings before him, and shall transfer the case to a circuit judge.

(L. 1978 H.B. 1634)

Effective 1-02-79

546.595 - Associate circuit judge to file statement with certain officers if no appeal — collection of fines.

It shall be the duty of the associate circuit judge before whom any conviction may be had under this chapter, if there be no appeal, to make out and certify, and within ten days after the date of the judgment, deliver to the treasurer of the county and clerk of the county commission each a statement of the case, the amount of the fine and return day of the execution, and the name of the officer charged with the collection thereof; and the county treasurer shall charge the officer with the amount of such fine, and unless the same be paid into the county treasury on or before the return day of the execution, the county commission shall, at their next term, ten days' notice being given to the officer in default and his sureties, render an account stated against them for the amount due, and twenty percent thereon, making, however, proper deductions for insolvencies; on which account stated suit may be maintained and when collected, the proceeds paid in the county treasury.

(L. 1978 H.B. 1634, A.L. 1985 S.B. 5, et al.)

Effective 1-01-87

546.881 - St. Louis City workhouse, commitment.

1.Every person committed to the workhouse of the city of St. Louis, or other place of punishment provided by that city, by the circuit court of the city of St. Louis, shall be put to hard labor at such work as his or her strength and health will permit, whether within or without such place of imprisonment, and shall be under the control and management of those having charge of such prison, subject to such rules and regulations as the municipal assembly of St. Louis City may establish for such prisons.

2.If the party committed is unwilling although able to pay the fine and costs, if such be the punishment for the offense, in whole or in part, in payment of such fines and costs, the party committed shall be allowed for his or her work at the rate of ten dollars per day.No imprisonment for nonpayment of fine and costs shall exceed six months.

3.When a fine is assessed by the circuit court of the city of St. Louis the court may provide for the payment of the fine and costs on an installment basis under such terms and conditions as the court deems appropriate.

4.Any person, after being committed to the workhouse or other place of imprisonment provided by the city of St. Louis, for nonpayment of his or her fine and costs, desiring to pay same, shall make application to the judge of said court, who shall in open court order the fine and all costs of such person to be paid to the clerk of said court, whose duty it shall be to receive same, enter satisfaction on the execution in his execution book, and give notice in writing, under the seal of said court, to the superintendent or person having charge and control of said workhouse, that the execution against such person has been fully satisfied, whereupon such person shall immediately be discharged from said workhouse or place of punishment.