State v. Newkirk , 49 Mo. 472 ( 1872 )

Adams, Judge,

delivered the opinion of the court.

This case was before the court at the October term, 1871 (ante, p. 84), brought there by the defendant by writ of error. It ivas a prosecution for a “malicious trespass,” and this court then held that the facts as they appeared in the record did not support the charge, and reversed the judgment and remanded the cause for further proceedings. After the defendant had been found guilty he filed a motion for a new trial, which was overruled, and it was for this alleged error that he took the case to the Supreme Court.

When the case went back the defendant filed a motion to be discharged, because this court on reversing the judgment did not in so many words direct a new trial to be had. This motion was sustained, and the State excepted and has brought the case here by writ of error. It is objected that a writ of error by the State only lies where an appeal is allowed. But the statute allowing writs of error is general (see section 2, art. vm, tit. “ Of Appeals and Writs of Error,” Wagn. Stat. 1112), and covers the case under consideration. Where a defendant has been acquitted, however erroneous such acquittal may be, in a case where life or liberty is involved he cannot be put on his trial a second time for the same offense. But here the defendant was convicted and wanted a new trial, and brought the case to this court expressly to obtain a new trial, and the judgment was reversed and the cause remanded. For what purpose was the cause remanded ? Was it remanded merely to have an order entered discharging the defendant, or that a new trial might be had? That was what the defendant wanted. Now, after this court has reversed the judgment and remanded the cause, and thereby held that the motion for a new trial should have been sustained, the defendant objects to a new trial, and without any trial at all has been discharged on his own motion.

It seems to me that where “ a judgment is reversed and the cause remanded,” this language implies all that the statute requires, and when the case goes back it must be proceeded with in accordance with the rulings of this court as expressed in its opiilion. All that the court decided was that there must be a new trial — that the facts as they appeared in the record did not warrant his conviction; and the case must go back to be tried again. It does not follow that when a new trial is awarded, whether by the Supreme or inferior court, the parties are prohibited from introducing other evidence than what appeared in the first trial. Whether in a criminal or a civil case the parties are always permitted to introduce new evidence, whether the reversal was on a question of fact or law, or both. There is nothing in the objection that this case has been brought here from the judgment on the motion to discharge the defendant. That was a final judgment pro hac vice, and no motion for a rehearing was necessary. (See Parker v. Waugh, 34 Mo. 340; Bruce v. Vogel, 38 Mo. 100; Parker v. Hannibal & St. Jo. R R. Co., 44 Mo. 419.) Although the defendant has been discharged, he may be re-arrested upon process to be issued for that purpose by the court below, and brought to trial.

The judgment must be reversed and the cause remanded, to be proceeded in as herein directed.

The other judges concur.