Missouri Revised Statutes

Mo. Rev. Stat. § 565.004 (2026)

Joinder of offenses, exception

✓ current as of May 2026

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565.004. Joinder of offenses, exception — prior offenders, procedure, exception, first degree murder — joinder, first degree murder, waiver of death penalty. — 1. Each homicide offense which is lawfully joined in the same indictment or information together with any homicide offense or offense other than a homicide shall be charged together with such offense in separate counts. A count charging any offense of homicide may only be charged and tried together with one or more counts of any other homicide or offense other than a homicide as provided in subsection 2 of section 545.140. Except as provided in subsections 2, 3, and 4 of this section, no murder in the first degree offense may be tried together with any offense other than murder in the first degree. In the event of a joinder of homicide offenses, all offenses charged which are supported by the evidence in the case, together with all proper lesser offenses under section 565.029, shall, when requested by one of the parties or the court, be submitted to the jury or, in a jury-waived trial, considered by the judge.

2. A count charging any offense of homicide of a particular individual may be joined in an indictment or information and tried with one or more counts charging alternatively any other homicide or offense other than a homicide committed against that individual. The state shall not be required to make an election as to the alternative count on which it will proceed. This subsection in no way limits the right to try in the conjunctive, where they are properly joined under subsection 1 of this section, either separate offenses other than murder in the first degree or separate offenses of murder in the first degree committed against different individuals.

3. When a defendant has been charged and proven before trial to be a prior offender pursuant to chapter 558 so that the judge shall assess punishment and not a jury for an offense other than murder in the first degree, that offense may be tried and submitted to the trier together with any murder in the first degree charge with which it is lawfully joined. In such case the judge will assess punishment on any offense joined with a murder in the first degree charge according to law and, when the trier is a jury, it shall be instructed upon punishment on the charge of murder in the first degree in accordance with section 565.030.

4. When the state waives the death penalty for a murder first degree offense, that offense may be tried and submitted to the trier together with any other charge with which it is lawfully joined.

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(L. 1983 S.B. 276, A.L. 1984 S.B. 448 § A, A.L. 1993 S.B. 180, A.L. 2014 S.B. 491)

Effective 1-01-17

(1989) Plain language of statute indicates circumstances allowing joinder of offenses with first degree murder are limited; however, where the charges arise from the same transaction and relate to acts committed against the same victim, the murder and armed criminal action can be joined and tried together. (Mo.banc) State ex rel. Bulloch v. Seier, 771 S.W.2d 71.

Notes of Decisions

Cited in 160 cases (1 in the last 5 years), 1980–2024 · leading case: State v. Antwine, 743 S.W.2d 51 (Mo. 1987).

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State v. Antwine, 743 S.W.2d 51 (Mo. 1987). · cites it 6× “[3] Section 565.004, RSMo 1978. [4] Section 565.”

State v. Clark, 652 S.W.2d 123 (Mo. 1983). · cites it 12× “Clark was convicted of second degree murder [§ 565.004, RSMo 1978] and sentenced to life imprisonment.”

State v. Williams, 24 S.W.3d 101 (Mo. Ct. App. 2000). · cites it 9× “Section 565.004, RSMo 1978, governing murder in the second degree, provided that “[a]ll other kinds of murder at common law, not herein declared to be manslaughter or justifiable or excusable homicide, shall be deemed murder in the second degree.”

State Ex Rel. Bulloch v. Seier, 771 S.W.2d 71 (Mo. 1989). · cites it 10× “Our task in this regard is somewhat complicated by § 565.004, RSMo 1986, pertaining to joinder of offenses in a trial for first degree murder.”

Driscoll v. State, 767 S.W.2d 5 (Mo. 1989). · cites it 8× “Second degree murder, as prescribed by § 565.004, RSMo 1978, was a lesser included offense of capital murder.”

State v. Mannon, 637 S.W.2d 674 (Mo. 1982). · cites it 7× “Defendant was convicted by a jury of conventional 1 second-degree murder (§ 565.004) 2 and sentenced to thirty years imprisonment.”

Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. 1997). · cites it 6× “Cooper argues that his 1981 conviction was under § 565.004, RSMo 1978, which was common law second degree murder, and therefore, the statute requiring the taking of a blood sample for DNA profiling analysis is not applicable to him.”

Antwine v. State, 791 S.W.2d 403 (Mo. 1990). · cites it 6× “020, RSMo 1978, second degree murder, Section 565.004, RSMo 1978, and capital murder, Section 565.”

State v. Flenoy, 968 S.W.2d 141 (Mo. 1998). · cites it 6× “Had the charges been tried in one proceeding, the Court stated there could be no question the defendant’s claim of double jeopardy would fail since the legislature had, in section 565.004, RSMo 1986, 5 clearly stated its intent to allow the convictions.”

Love v. State, 670 S.W.2d 499 (Mo. 1984). · cites it 4× “020, RSMo 1969 (now § 565.004, RSMo 1978, repealed effective July 1, 1984 by *501 Laws 1983, p.”

State v. Wilkerson, 616 S.W.2d 829 (Mo. 1981). · cites it 4× “003) it cannot be said that he is on notice that the prosecution will attempt to convict him of a homicide that does require an intent to kill (§ 565.004). Given the definitions of first and second degree murder in Missouri (§§ 565.”

State v. Newbold, 731 S.W.2d 373 (Mo. Ct. App. 1987). · cites it 6× “Moreover it is not a theory of prosecution as such that the evidence must prove to sustain conviction [as the defendant argues], but the substantive offense as defined by statute and submitted to the jury — in this case, that Newbold alone, or with Susan Levy as accomplice,…”

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