☰ Revisor of Missouri


Effective - 27 Feb 1945, see footnote    bottom

  I Section 19.  Self-incrimination and double jeopardy. — That no person shall be compelled to testify against himself in a criminal cause, nor shall any person be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury; but if the jury fail to render a verdict the court may, in its discretion, discharge the jury and commit or bail the prisoner for trial at the same or next term of court; and if judgment be arrested after a verdict of guilty on a defective indictment or information, or if judgment on a verdict of guilty be reversed for error in law, the prisoner may be tried anew on a proper indictment or information, or according to the law.


Source: Const. of 1875, Art. II, § 23.

(1952) Habitual criminal statute goes only to the punishment, not the guilt or innocence of the accused on trial, and under it no punishment is imposed for the prior offense. Proceedings under it, therefore, do not violate double jeopardy or other provisions of constitution. State v. O'Brien (Mo.), 252 S.W.2d 357.

(1952) Where defendant is convicted of common assault in prosecution for felonious assault with intent to ravish and thereafter new trial is granted, cause stands as though there had been no trial at all and defendant may be tried for the felony charged in the indictment. State v. Higgins (A.), 252 S.W.2d 641.

(1953) Where defendant of low-level intelligence confessed guilt under circumstances indicating that confession was coerced by inspired fear, a promise of protection and daily interrogation over long period of detention, use of confession in his trial was violative of due process clause of constitution. State v. Bradford (Mo.), 262 S.W.2d 584.

(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.

(1955) Where police watched house for half hour, saw persons enter a room therein and through tear in window shade saw defendant and others with policy book and other paraphernalia and when defendant and another were arrested policy result drawings were taken from him, search and seizure not violative of constitutional provisions as to search and seizure or as to self-incrimination. State v. Hardy (Mo.), 276 S.W.2d 90.

(1955) Conviction of defendant of robbery does not bar his prosecution for assault with intent to kill where such assault was committed in progress of robbery or as part of the same transaction. State v. Chernick (Mo.), 278 S.W.2d 741.

(1956) Where defendant charged with first degree murder was at liberty on bond and jury was discharged on its failure to reach a 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.

(1957) Where trial on murder charge resulted in "hung jury", and case was continued for some time and nolle prosequi was entered after jury had been called and qualified but not sworn, defendant was not placed in jeopardy and could be again charged with the offense even though nolle prosequi judgment recited that defendant was "acquitted". State v. Berry (Mo.), 298 S.W.2d 429.

(1957) Common assault charge did not merge in peace disturbance charge upon the street even though the disturbance was "by fighting" and so acquittal of peace disturbance charge did not bar prosecution for common assault. State v. Brooks (A.), 298 S.W.2d 511.

1958) Where motion for new trial of accused is sustained on ground evidence was insufficient and the conviction is set aside, accused is estopped to plead the former conviction as a bar to another trial on the same or a new indictment. State v. Patton (Mo.), 308 S.W.2d 641.

(1959) Where defendant was discharged from conviction by circuit court on ground information on which he was convicted was defective, his subsequent trial for same offense on valid information did not constitute double jeopardy. U.S. ex rel. Jones v. Nash, 264 F.2d 610.

(1959) Where confession appears to be entirely voluntary, the failure of the officers taking it to warn accused of constitutional right to remain silent or to have counsel present, would not make it admissible. State v. Laspy (Mo.), 323 S.W.2d 713.

(1959) When a defendant (in a criminal case) put his sanity in issue, he waives all privilege either under the physician privilege statute or under the self-incrimination section, to exclude testimony of any doctors who have examined him for this purpose. State v. Swinburne (Mo.), 324 S.W.2d 746.

(1959) Section 491.080 is not as broad as the constitutional guaranty against self-incrimination and so does not authorize compulsory testimony in examination of judgment debtor when constitutional privilege is claimed. State ex rel. North v. Kirtley (Mo.), 327 S.W.2d 166.

(1960) Where defendant was issued a certificate of occupancy by the department of public safety of the city for occupancy of property to be used as a rooming house and where the defendant applied for permit to operate a rooming house and was actually operating a rooming house, his refusal to permit the inspection of the premises by city inspectors constituted resisting officers. The ordinance authorizing the inspection did not constitute unreasonable search and seizure nor did it require self-incrimination. City of St. Louis v. Evans (Mo.), 337 S.W.2d 948.

(1961) Refusal of grand jury witness to answer questions as to when he sold business, whether he had interest in certain real estate and as to whether he knew certain individuals, on ground of self- incrimination, held not basis for commitment for contempt. In re Presta v. Owsley (A.), 345 S.W.2d 649.

(1961) Where accused was charged with robbing several persons at the same place, the acquittal of robbing one of such persons would not bar a prosecution for the robbery of another of such persons. State v. Ashe (Mo.), 350 S.W.2d 768.

(1964) Held prejudicial error to admit testimony of police officer that defendant remained silent and refused to answer questions while under arrest and in custody especially since in view of defendant's condition there was some question as to whether defendant heard or understood what was being asked of him. State v. Phelps (Mo.), 384 S.W.2d 616.

(1967) Breath test authorized under this section does not violate due process of law. Blydenburg v. David (Mo.), 413 S.W.2d 284.

(1967) It was not error to introduce police officer's testimony that defendant refused to make a statement while under arrest where defendant brought this testimony out first during cross-examination and subsequently called jury's attention to the refusal to make a statement during argument. State v. Yager (Mo.), 416 S.W.2d 170.

(1967) The privilege against self-incrimination extends not only to refusing to answer the question asked, but also to refusing to to explain how the answer might incriminate the witness. State v. Cavanaugh (A.), 419 S.W.2d 929.

(1967) Defendant who was charged with first degree murder and convicted of second degree murder in first trial and subsequently granted a new trial for error in instructions was not placed in double jeopardy by subsequent first degree murder charge. State v. Crane (Mo.), 420 S.W.2d 309.

(1968) Punishment imposed by prison official for violation of prison rule against escape involves the exercise of an administrative function, not a judicial function, and does not place the defendant in jeopardy within the constitutional sense. It constitutes no defense in a prosecution on a charge of escape. State v. Croney (Mo.), 425 S.W.2d 65.

(1968) Refusal of judgment debtor to answer questions in hearing in circuit court regarding ownership or interest in certain property came under the constitutional privilege against self-incrimination. State ex rel. Howard v. Allison (A.), 431 S.W.2d 233.

(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) Double jeopardy provision applies only where there has been an acquittal of defendant by a jury. Murray v. State (Mo.), 475 S.W.2d 67.

(1972) Admission in evidence of letter, written by defendant while in jail awaiting trial and read by jailers in the course of jail security, containing incriminating admissions did not violate privilege against self-incrimination. State v. Johnson (Mo.), 476 S.W.2d 516.

(1972) Held that separate trials for successive robberies of two filling station attendants did not constitute double jeopardy. State v. Moton (Mo.), 476 S.W.2d 785.

(1972) Accused was not subjected to double jeopardy on the ground he was charged with attempted robbery with dangerous and deadly weapon and carrying a concealed weapon since although occurring on same day, the crimes were separate and distinct, taking place at different places and times and defendant did not show that the concealed weapon taken from him at time of arrest was the same weapon used in earlier attempted robbery. Warren v. State (Mo.), 482 S.W.2d 497.

(1973) Held that separate trials and convictions for successive robberies of two filling station attendants not double jeopardy. Moton v. Swenson (C.A. Mo.), 488 F.2d 1060.

(1973) Punishment administered for violation of institutional rules is administrative function and does not constitute double jeopardy for crime committed by inmate of prison. State v. Boyd (Mo.), 498 S.W.2d 532.

(1974) Held that comment on defendant's failure to disclose theory of self-defense before trial violated right against self-incrimination. State v. Butler (A.), 512 S.W.2d 466.

(1974) Privilege against self-incrimination is available in any tribunal and any proceeding including civil cases. When person asserting privilege was seeking no affirmative action, court erred in striking his answer because of his claiming privilege during taking of deposition. State ex rel. Pulliam v. Swink (Mo.), 514 S.W.2d 559.

(1975) Held that conviction of violation of a city ordinance prohibiting drunken driving acts as a bar to subsequent prosecution by the state arising out of the same incident. Prohibition held to be a proper remedy. Weaver v. Schaaf (Mo.), 520 S.W.2d 58.

(1975) Where victim was pistol-whipped and robbed and later shot while unconscious on floor, a charge of assault with intent to kill and armed robbery did not constitute double jeopardy. State v. Ross (A.), 523 S.W.2d 841.

(1975) Even though prosecution for offense which is subject of litigation may be barred by statute of limitation copies of income tax returns cannot be made the subject of discovery procedures since evidence of some other incriminatory nature might be disclosed. State ex rel. Caloia v. Weinstein (A), 525 S.W.2d 779.

(1976) Held, prosecution of defendant for driving while intoxicated after conviction of improper backing of motor vehicle arising out of the same occurrence is not double jeopardy. The two charges involve proof of different facts and are not identical offenses. State v. Johnson (A.), 532 S.W.2d 883.

(1976) Requiring defendant to testify, over objection, in chambers that he had been convicted twice before of driving while intoxicated was reversible error. State v. Kaiser (Mo. banc), 534 S.W.2d 19.

(1979) Provision that no person shall be compelled to testify against himself prohibits not only comments on the failure of a defendant to testify, but also comments which have the effect of compelling a defendant to testify. State v. Lindsey (Mo.), 578 S.W.2d 903.

---- end of effective  27 Feb 1945 ----

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