The opinion of the court was delivered by
Valentine, J.:
This was a prosecution by the city of Olathe against E. W. Adams and N. Julien for keeping open a dramshop on the Fourth of July 1874, in violation of a city ordinance. The prosecution was commenced before the *394police judge. The defendants were there found guilty, and they then appealed to the district court. In the district court they were acquitted, and the city now appeals to this court. The city claims that the prosecution is in its nature a criminal action, (and we think the city is correct; Neitzel v. City of Concordia, 14 Kan. 446" court="Kan." date_filed="1875-01-15" href="https://app.midpage.ai/document/neitzel-v-city-of-concordia-7883970?utm_source=webapp" opinion_id="7883970">14 Kas. 446;) and therefore the city brings the case to this court by appeal, under § 283 of the criminal code, (Gen. Stat. 865,) instead of by petition in error, as is required in civil actions. For the purposes of this case therefore we shall assume (and probably correctly,) that this is a criminal action; that it is appealable to this court under the criminal code, and that it is governed by all the rules pertaining to other criminal actions, so far as such rules can be made applicable to this case. The facts of the case, so far as it is necessary to state them, are substantially as follows: A complaint was made on oath, and in writing, charging the defendants with the said offense. The defendants were arraigned upon the charge, and pleaded “not guilty.” Trial was had in the district court, before the court, without a jury. The case was submitted to the court upon an agreed statement of facts; and for the purposes of this case, we shall assume that the facts showed that the defendants were guilty. “And,” [as the record shows,] “the court having had the cause under advisement, and having duly considered the issues herein, and the said agreed statement of facts, and being well advised in the premises, finds for the defendants.” This finding we think is equivalent to a verdict of “not guilty.” And for the- purposes of this case we shall assume that the finding is erroneous. The court then rendered judgment upon this finding for the defendants for costs, and discharged the defendants. The judgment was the only one that could have been rendered upon said finding. The city now appeals to this court, and asks to have said judgment reversed. Can it be done ? If the j udgment had not followed the finding, of course it could be reversed. (The State v. Walter, 14 Kan. 375" court="Kan." date_filed="1875-01-15" href="https://app.midpage.ai/document/state-v-walter-7883947?utm_source=webapp" opinion_id="7883947">14 Kas. 375.) Or, if this were a civil action we could ignore the finding of the court below, considering it merely as a conclusion *395of law from the facts admitted; we could decide the case upon the agreed statement of facts, and could order the proper judgment to be rendered upon the facts agreed to. (Brown v. Evans, ante, 88.) But the case being in its nature a. criminal action, we have not the same authority to ignore or overrule the finding of the court below. If we should merely set aside the judgment of the court below, the finding would still remain in all its force and vigor, and no other or different judgment could be rendered thereon. The finding would still require the same judgment as has already been rendered. And we know of no authority in this court, or in any other court, to set aside a verdict or finding of “not. guilty,” in a criminal action. We think it is the universal opinion, both of bench and bar, that a verdict of “not guilty,” in a criminal action, ends the case. The defendant could not be tried a second time against his consent; for under § 10 of the Bill of Eights, (Const, of Kansas,) he cannot “be twice put in jeopardy for the same offense.” Now, although the finding of the court below may be founded upon an erroneous view of the law, still we do not see' how we can disturb it. The- plea of the defendants was, “ not guilty.” The agreed facts showed them, as we have assumed^, to be guilty. The court however found them not guilty; and with our understanding of criminal law, this finding is conclusive.
The judgment of the court below must therefore be affirmed.
All the Justices concurring.