We have previously said that when the trial court "receives a mandate on reversal and the terms of reversal are explicit, the trial judge has no function except to put such terms into execution." District of Columbia v. Huffman, D.C.Mun.App., 42 A.2d 502, 504 (1945). Therefore our ruling that the case be remanded for a new trial on the issue of damages expressly limited the scope of the proceedings in the trial court.
He chose to do neither. Compare District of Columbia v. Huffman, D.C. Mun. App., 42 A.2d 502. It is an inflexible rule that our decision on a former appeal, whether right or wrong, is binding alike on the parties and the courts in the same action.
State v. Buckley, 274 S.W. 74, 309 Mo. 38; State v. Richardson, 36 S.W.2d 944. (6) The requirement that at the commencement of the trial the prosecuting attorney must state the case is mandatory, and when it appears from the opening statement that the evidence which the state proposes to introduce will not be sufficient to support a conviction the court should direct a verdict of acquittal at the conclusion of such opening statement. Sec. 546.070, RSMo 1949; Sec. 4070, R.S. 1939; McGuire v. U.S., 152 F.2d 577; Rose v. U.S., 149 F.2d 755; State v. Loeb, 190 S.W. 299; Dist. of Columbia v. Huffman, 42 A.2d 502; Wonderly v. Little Hays Inv. Co., 184 S.W. 1188; Waldron v. Skelly Oil Co., 101 F. Supp. 425. (7) Where the case is close and a conviction rests upon unsatisfactory testimony, any misconduct by a prosecuting attorney in an opening statement will be weighed in connection with the facts, and less misconduct will work a reversal than where the evidence of guilt is very strong; hence a mistrial should have been declared by the court when the prosecuting attorney in his opening statement made reference to the defendant's parole supervisor, thereby informing the jury that the defendant had been convicted of a crime and was still on parole. State v. Levy, 170 S.W. 1114, 262 Mo. 181. (8) Even though by agreement a jury in a felony case has been permitted to separate it was improper for the sheriff, who was the complaining witness in the case and who had testified in the case, to converse privately with one of the jurors and apart from the main body of the jury during the recess and adjourn
Briggs v. Pennsylvania R. Co., 334 U.S. 304, 68 S.Ct. 1039, 92 L.Ed. 1403. District of Columbia v. Huffman, D.C.Mun.App., 42 A.2d 502, 504; cf. Price v. Daime, D.C.Mun.App., 71 A.2d 608. We are equally unimpressed with appellant's further complaint that he was refused a continuance.
Citing 3 Am.Jur., Appeal and Error, § 1210, 1184, 1233. Earlier, in District of Columbia v. Huffman, D.C.Mun.App., 42 A.2d 502, 503, we had a situation closer to the facts in the present appeal. Although the case was a criminal proceeding, we stated the principles applicable to reversal and remand in civil cases and held them controlling. There a conviction had been reversed on the ground that the evidence was not sufficient to establish guilt.
Other facets of the rule are found in cases from other jurisdictions, which have considered the issue now before us. In the absence of express limitations by the appellate court, a reversal of a judgment of conviction annuls and expunges not only the judgment of conviction but also the record of trial, leaving the accusatory pleading standing against the defendant as if no trial be had. (See, e.g., Spriggs v. United States (9th Cir. 1955) 225 F.2d 865, 868, cert. den., 350 U.S. 954 [100 L.Ed. 830, 76 S.Ct. 342]; State v. Lamoreaux (1952) 20 N.J. Super. 65, 73-74 [ 89 A.2d 469, 473-474]; People v. Palmer (1888) 109 N.Y. 413, 419-420 [17 N.E. 213, 215]; District of Columbia v. Huffman (D.C.Mun.App. 1945) 42 A.2d 502, 504; and see 24B C.J.S., Criminal Law, § 1951, p. 395.) In Huffman, supra, the court stated: "Where . . . the reversal is general in terms and without express instructions, it ordinarily means that a new trial is to be had, for there is usually no other way of deciding the issues. [Fn. citations omitted.]"