State v. Granberry ( 1975 )

McMILLIAN, Judge

(dissenting).

I respectfully dissent. In my opinion, while New York law noted in footnote two of the majority opinion is persuasive, it is not binding where the Missouri Supreme Court has spoken on the same issue. Here, it is apparent, for whatever reason given by the majority opinion, that the second indictment was still viable at the time trial was had upon the first indictment. Consequently, in my opinion this case is controlled by State v. Mayer, 209 Mo. 391, 107 S.W. 1085 (1908). Therefore, I would reverse the judgment of conviction and remand for a new trial.