
    State of Missouri, Defendant in Error, vs. Warren M. Pitts, Plaintiff in Error.
    1. Practice, criminal — Indictment for robbery in first degree — Conviction of robbery in second degree — Autrefois acquit. — A prisoner was indicted for robbery in the first degree, and under the indictment might have been convicted of grand larceny. Being convicted of robbery in the second degree, the verdict was without his consent set aside. Held 1st, that a conviction of robbery in the second degree operated as an acquittal of the higher offense charged ; 2nd, that the prisoner could not be retried under the same indictment, and found guilty of grand larceny. (See State v. Brannon, 55 Mo., 63.)
    
      Error to Henry Circuit Court.
    
    
      Waldo P. Johnson, for Plaintiff in Error.
    
      H. Clay Ewiny, Att?y General, for Defendant in Error.
   WagNEr, Judge,

delivered the opinion of the court.

The defendant was indicted with one Carroll Brannon for. robbery in the first degree.

On the trial he was convicted of robbery in the second degree, and the verdict was set aside by the court without his consent. At a subsequent term of the court, against liis objection, lie was again put upon trial, on the same indictment,, and convicted of the crime of grand larceny. The facts, in this case, as appear by the record, are the same as those which were developed in The State vs. Brannon (55 Mo., 63), with whom the prisoner was jointly indicted, and for the reason given in the opinion in that case the judgment herein must be reversed..

All the other judges concur.  