State ex rel. Peach v. Gaertner

617 S.W.2d 101, 1981 Mo. App. LEXIS 3633

• Court: Missouri Court of Appeals
• Decided: May 19, 1981
• Docket: May 19, 1981
• Status: Published

Opinion

CRIST, Presiding Judge.

Preliminary writ of prohibition made absolute.

On September 29, 1980, we issued a preliminary writ of prohibition demanding the trial court to show cause why it should not be prohibited from enforcing its order dated September 10,1980 dismissing State of Missouri v. Fred Williams, Jr., Cause Number 801-02108, filed in the Circuit Court of the City of St. Louis.

Fred Williams, Jr. was charged by information with committing an assault on his wife. His lawyer filed a motion to dismiss, along with a supporting affidavit, alleging that Mr. & Mrs. Williams were living together and she would not testify against him. The motion was heard, no evidence was presented and the arguments were made. The trial court ordered the case dismissed without prejudice An application for writ of prohibition followed.

The September 10,1980 order of the trial court was premature. Rule 24.04(b)l provides:

Any defense or objection which is capable of determination without trial of the general issue may be raised before trial by motion.

Because the motion herein dealt with a defense or objection not capable of determination without a trial of the general issue, the order was improperly granted. See, State ex rel. Bullington v. Mason, 593 S.W.2d 224, 225-226 (Mo.banc 1980). Our preliminary writ of prohibition is hereby made permanent.

REINHARD and SNYDER, JJ., concur.