¶1On Motion for Rehearing
¶2In his motion for rehearing appellant contends that the principal opinion ignores and is in conflict with Waldron v. Skelly Oil Co., 363 Mo. 1146, 257 S.W.2d 615, and with Craddock v. Greenberg Mercantile, Inc., Mo.Sup., 297 S.W.2d 541, 548. In both cases it was held that opinions of an expert witness were based on assumed facts which were not supported by evidence and were, therefore, mere conjectures and not proper inferences. In the Craddock case the issues were whether an explosion occurred, and if so, its cause. The court stated that “To start with the assumption or conclusion that an explosion occurred, and then to give expert opinion as to its cause and mechanics, is almost to lift one’s self by his own bootstraps.” The situations in these two cited cases are by no means comparable to what we have here. Appellant does not attempt to set forth in his motion what facts he contends the expert witnesses wrongfully assumed. Certainly, the expert witnesses did not wrongfully assume that there was a fire. We pointed out in the principal opinion that the expert witnesses based their opinions as to its cause on facts established in the evidence, and that in addition, appellant did not object to the expert testimony on the basis that it was without factual support. There is no conflict with the two cited cases.
¶3Appellant next contends that the principal opinion conflicts with the opinion in the previous appeal in this case and with State v. Allen, 363 Mo. 467, 251 S.W.2d 659, because the evidence in the first and second trials was substantially the same. In the Allen case it was held that rulings made on appeal concerning comments of the state’s attorney and the admissibility of evidence constituted the law of the case on a second appeal when the evidence was substantially the same. Appellant contends that the law of this case on this second appeal is that no submissible case was made. In the principal opinion we specifically pointed out material and substantial evidence which was presented in the second trial and which was not present in the first trial. We need not set it out *627again. Therefore, State v. Allen is not applicable and the principal opinion is not in conflict with it or with the opinion in the first appeal of this case.
¶4Appellant also contends that the principal opinion ignores and is in conflict with State v. Ruckman, 253 Mo. 487, 161 S.W. 705. In that arson case the evidence was held to be insufficient to support a verdict of guilty although there was proof of the incendiary nature of the fire, of a motive on the part of the defendant, and of a “possible opportunity” for him to have carried out such motive. Appellant does not point out in what particular respects he contends there is a conflict with the Ruckman case, but of course the final result is different. In State v. Ferrara, Mo.Sup., 320 S.W.2d 540, 545, in commenting on the Ruckman case, it was said: “However, in that case the court was careful to point out that the state’s own witnesses put defendant in his hotel room two hours before the fire, and that he did not again leave the hotel until he was awakened and informed of the fire. It is understandable, then, that in ruling as it did, the court observed: ‘On the other hand, the state’s own evidence tends to show that the defendant did not cause the fire.’ ” We do not have that situation in the present case. There can be no question but that the state clearly established the motive and opportunity of appellant to set the fire. We previously concluded, and after additional review by reason of the motion for rehearing we again conclude, that the testimony of the expert witnesses and the facts and circumstances outlined in detail in the principal opinion are legally sufficient to authorize the finding by the jury that the fire was of incendiary origin. There was no evidence on the part of the state which even tended to show that defendant was not responsible for the fire. We find no conflict between the Ruckman case and the principal opinion.
¶5Appellant next, and for the first time, raises the question of double jeopardy. No cases are cited. It is his contention that “In a criminal cause the state does not get two shots at the defendant when the reversal in the first instance is because of a failure to make a submissible case.”
¶6The constitutional privilege or right not to be put twice in jeopardy for the same offense is personal and may be waived. Ex parte Dixon, 330 Mo. 652, 52 S.W.2d 181; State v. Reynolds, 345 Mo. 79, 131 S.W.2d 552; State v. Harper, 353 Mo. 821, 184 S.W.2d 601. We do not rule on the question of whether in this case the defense of double jeopardy can be raised for the first time in a motion for rehearing in an appellate court because, in any event, after the first conviction appellant moved for a new trial on the ground that no submissible case was made against him, and “The general rule is where a defendant, convicted in a criminal prosecution, moves for a new trial, the granting of the motion and putting him on trial a second time is not a violation of his constitutional right not to be put in jeopardy twice for the same offense.” State v. Patton, Mo.Sup., 308 S.W.2d 641, 644. See also the exhaustive discussion in the Patton case of the precise issue here presented.
¶7Appellant’s motion for a rehearing or in lieu thereof to transfer the case to the court en banc is denied.