On motion for rehearing.
I. The defendant as a ground for rehearing urges that this court did not in its opinion review this case on the same theory, upon which it was tried in the circuit court.
As to this point it is sufficient to remark that in the examination and determination of criminal cases which come here on writ of error, or by appeal, we are not restricted as in civil cases.
The mandate of the statute is that we examine the record before us and render judgment upon it. R. S., secs. 1989, 1993.
II. As to the question of variance all has been said, that is necessary, in the opinion.
There is no suggestion that the statute there referred to does not appl y. The decision of the supreme court there cited is conclusive upon us.
III. The objection is made to the record and proceeding of said county court, which was given in evidence, that the same had been expunged. We are unable to find in the bill of exceptions any such order *365of said county court. Besides it may well be questioned whether, after proceedings have been had for the establishment and opening of a public road, the county court could dis-establish such road by an order expunging its orders and judgment establishing the same. When a public road is once established it can only be vacated in the manner pointed out by statute. State v. Wills, 70 Mo. 635.
The title acquired to a highway by the public cannot be dives ted in that m anner.
IV. The instructions given by the court fairly submitted the case to the jury. The proof was ample to sustain the conviction. R. S. 6964; State v. Ramsey, 76 Mo. 398.
We adhere to the opinion heretofore expressed and hence overrule the defendant’s motion for a rehearing.