State v. Newkirk
| Decision Date | 31 March 1872 |
| Citation | 49 Mo. 472 |
| Parties | THE STATE OF MISSOURI, Plaintiff in Error, v. CORNELIUS NEWKIRK, Defendant in Error. |
| Court | Missouri Supreme Court |
Error to St. Louis Court of Criminal Correction.
Chas. Gibson, for plaintiff in error, cited in argument Prince v. Cole, 28 Mo. 486.
Orrick, Emmons & McKeag, for defendant in error.
I. The court committed no error in discharging the defendant, as it had previously heard all the testimony which the State chose to offer at the trial; and as this court had decided that the evidence offered was insufficient to sustain the charge, it would have been an infringement upon the defendant's constitutional rights to try him again for the same offense. (The People v. Goodwin, 18 Johns., N. Y., 202.)
II. If any error was committed by the court below, the case is not properly before this court, as no motion for rehearing or in arrest of judgment was filed to give the court an opportunity to correct its errors, if any. (Beatty v. Furnald, 47 Mo. 348; State v. Marshall, 36 Mo. 403.)
III. The facts as they exist in this case are not such as would entitle the State to an appeal as provided in Wagn. Stat. 1114, §§ 13, 14, unless at the discretion of the court. Can a writ of error be resorted to for the purpose of bringing a case to this court when the error complained of would not entitle the State to an appeal were all the necessary steps taken to perfect it?
This case was before the court at the October term, 1871 (ante, 84), brought there by the defendant by writ of error. It was 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 , 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...
To continue reading
Request your trial
-
Kelly v. Thuey
...... agent of the vendor, or obligor, with his express or implied. consent does not avoid his written instrument. State to. use v. Dean 40 Mo. 464; Owen v. Perry, 25 Iowa. 412; Field v. Stagg, 52 Mo. 534; Nichols v. Johnson, 10 Conn. 192; Pequawket Bridge v. ...522, 527, in regard to the alteration. was: "The proof does not sustain the averment.". Herman on Estop., p. 118; State v. Newkirk, 49 Mo. 472; Wells Res. Adj., sec. 619; Gurley v. Railroad, . 26 S.W. 953; Boone v. Shackleford, 66 Mo. 497;. Bird v. Sellers, 26 S.W. 670; ......
-
State v. Burgdoerfer
...of criminal correction, in regard to writs of error in criminal cases, was section 1, chapter 215, General Statutes, 1865. In State v. Newkirk, 49 Mo. 472, followed State v. Peck, 51 Mo. 111, and in State v. Cunningham, 51 Mo. 479, it was held that, by virtue of the foregoing statute, a wri......
-
The State ex rel. Curtis v. Broaddus
...... accordance with that opinion, the Court of Appeals cannot. overrule the Supreme Court and convict the trial court of. error for obeying that direction and submitting the case on. the same evidence. Viertel v. Viertel, 212 Mo. 575;. Berkey v. Thompson, 126 Iowa 394; State v. Newkirk, 49 Mo. 472; Baker v. Railroad, 147 Mo. 152. The Court of Appeals held that on account of the fact. that plaintiff did not tender a deed on the exact date. mentioned in the contract, October 6, 1890, or offer to. tender it on that date, he could not recover, holding time. the essence of the ......
-
Mo., K. & T. Trust Co. v. Clark
...Sup.) 48 Pac. 919;Updike v. Parker, 11 Ill. App. 356; Laithe v. McDonald, 7 Kan. 266; Crockett v. Gray, 31 Kan. 346, 2 Pac. 809;State v. Newkirk, 49 Mo. 472; Elliott, App. Proc. § 580. Had the judgment been reversed, with directions to enter a proper judgment on the findings previously made......