Effective 28 Aug 1939

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.

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(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(1956) Where conviction was had on information based on city ordinance which was repealed at time of alleged offense, appellate court could not remand case for trial on ordinance which was in effect at such time, where the later ordinance was not in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.