State v. Newkirk
| Court | United States State Supreme Court of Missouri |
| Citation | 49 Mo. 472 |
| Parties | THE STATE OF MISSOURI, Plaintiff in Error, v. CORNELIUS NEWKIRK, Defendant in Error. |
| Decision Date | 31 March 1872 |
49 Mo. 472
THE STATE OF MISSOURI, Plaintiff in Error,
v.
CORNELIUS NEWKIRK, Defendant in Error.
Supreme Court of Missouri.
March Term, 1872.
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.)
[49 Mo. 473]
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?
ADAMS, Judge, delivered the opinion of the court.
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,...
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