7 Kan. App. 686 | Kan. Ct. App. | 1898
The opinion of the court was delivered by
The writ herein was granted by the writer of this opinion on November 27, 1897, and the hearing set down for December 14, 1897, the first day of the December term of court at Garden City. Petitioner in the meantime gave bail fixed in the order for the writ. By agreement of petitioner and the sheriff of Pawnee county and counsel representing the prosecutrix in the action there pending, the hearing took place before the court. The sheriff made the re
There is no dispute that the petitioner was first arrested on a complaint made by Lizetta Jones charging him, in one count with an assault and battery upon the person of complainant, and in another count with disturbing her peace, both charges relating to the same transaction ; that the county attornej7', in good faith, consented to. a plea of guilty under the second count, upon an understanding and agreement that such plea should settle and dispose of the entire case ; that petitioner then pleaded guilty to disturbing the peace of the said Lizetta Jones and was fined five dollars and costs by the justice of the peace ; that a commitment was thereupon duly issued by the justice of the peace and delivered to a constable of Pawnee county ; that while the petitioner was in the custody of this officer, and being held under an arrangement for some delay until he could procure the money to pay the fine and costs, he was again arrested upon complaint of said
While the facts seem to indicate the propriety of the plea of former jeopardy, we are unable to grant the petitioner’s discharge. In the case of The State v. Horneman, 16 Kan. 452, the first paragraph of the syllabus reads :
“A defendant in a criminal case cannot bring to this court on appeal the ruling of the district court sustaining the’ demurrer on the part of the state to a plea of autrefois acquit until after the trial and judgment on the merits.”
Bishop, in his New Criminal Procedure (4th ed., vol. 1, § 821), says :
“A discharge of the jury, after jeopardy begun, without verdict or the prisoner’s consent, operates in law as an acquittal; and on motion, without plea, he is entitled to be set at liberty. But should the court refuse, habeas corpus will not.lie; nor in most localities will appeal, which is from a final judgment.”
Recognizing our lack of jurisdiction to grant the relief sought, it is ordered that the petitioner be remanded to the custody of the sheriff of Pawnee county.