majority">Sherwood, Judge,

delivered the opinion of the court.

Smith was indicted in the Boone Circuit Court for murder in the first degree; a trial had, resulting in a verdict for murder, in the second degree, and judgment accordingly; but on his motion for a new trial, the verdict was set aside. At a subsequent term, he filed his motion to “dismiss the indictment,” — assigning as grounds :

1st. That, having been put on trial for murder in the first degree, and the jury having found him guilty of that offense in the second degree, and that verdict having been, on motion of defendant, set aside, and a new trial granted, he could not be put on trial for murder in the first degree.

2d. That, as defendant’s defense was founded only on the insanity of defendant, if found guilty he could be convicted "alone of murder in the first degree. This motion was sustained, and the cause dismissed, and the State excepted, and, after filing an unsuccessful motion to set aside the order of dismissal, again excepted, and brings the case here by appeal.'

Treating the action of the court as tantamount to a discharge of the accused, which, it will be presumed, in the absence of anything in the record to the contrary, immediately followed, we will examine into the correctness of that action. And the law in this State is so well settled, that an examination in this regard would seem scarcely necessary.- In the case of the State vs. Ross, 29 Mo., 39, the leading decision on the subject, it was held, that where a defendant was tried on an indictment •for murder in the first degree, and found guilty, of a lesser grade of homicide, and a new trial on his application granted, the verdict of the jury in the new trial was, by operation of law, an acquittal of murder in the first degree, yet that the prisoner might well be tried again, as well for the particular offense of which he liad been found guilty, as for any of the minor offenses, which under our code of criminal procedure are embraced in an indictment for murder in the first degree. And that case (notwithstanding the very able dissenting opinion *141of Judge Scott, who held that when a party indicted for murder was found guilty of an inferior grade of that crime, and obtained a new trial, that thereby the whole matter was opened for re-examination, regardless of any anterior proceedings had,) in all subsequent adjudications of the point in hand has been barely referred to as an unquestioned settlement of the rule of law in that respect.

■ It follows that the court should have promptly overruled the motion of defendant, as very clearly he was not entitled to a discharge, no matter what might have been the line of defense he designed pursuing at a subsequent trial. For this reason the judgment will be reversed, and thé cause remanded.

Judge Adams absent; the other judges concur.

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