Section 4.10 Motions to Dismiss and Sufficiency of the Accusation

• Library: Criminal Practice 2012 Supp

E. (§4.10) Motions to Dismiss and Sufficiency of the Accusation

Any defense or objection that is capable of determination without trial of the general issue may and should be raised before trial by motion. It is best to raise these issues when there is an attack on the nature or pleading of an indictment or information. The charging document must state the essential elements of the offense with sufficient particularity for the accused to prepare a defense and to bar multiple prosecutions for the same offense. See State v. Voyles, 691 S.W.2d 452 (Mo. App. S.D. 1985). In Voyles a stealing-by-deceit charge was reversed because the charging instrument failed to properly allege reliance by the victim in regard to the charged misrepresentations. If the charge clearly fails to allege an essential element contained in the statute, it is not a proper charge and does not vest the court with any jurisdiction. See State v. Owens, 740 S.W.2d 269 (Mo. App. W.D. 1987); State v. Redpath, 668 S.W.2d 99 (Mo. App. W.D. 1984).

A charging instrument that fails to contain an essential allegation of the offense can be held insufficient even after the verdict. State v. Bridges, 412 S.W.2d 455 (Mo. 1967); Shive v. State, 780 S.W.2d 359 (Mo. App. S.D. 1989). As a matter of law, omissions can be of such a fundamental character as to make an information or indictment wholly insufficient and invalid. Insufficiency is not...