State v. Newkirk

CourtUnited States State Supreme Court of Missouri
Citation49 Mo. 472
PartiesTHE STATE OF MISSOURI, Plaintiff in Error, v. CORNELIUS NEWKIRK, Defendant in Error.
Decision Date31 March 1872

49 Mo. 472

THE STATE OF MISSOURI, Plaintiff in Error,
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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34 cases
  • Kelly v. Thuey
    • United States
    • United States State Supreme Court of Missouri
    • 29 d2 Março d2 1898
    ...... 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
    • United States
    • United States State Supreme Court of Missouri
    • 16 d1 Novembro d1 1891
    ...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
    • United States
    • United States State Supreme Court of Missouri
    • 16 d6 Dezembro d6 1911
    ...... 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
    • United States
    • Supreme Court of Nebraska
    • 20 d3 Junho d3 1900
    ...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......
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