17 Kan. 396 | Kan. | 1877
The opinion of the court was delivered by
The decisions of this court in the cases of The State v. Carmichael, 3 Kas, 102, and City of Olathe v. Adams, 15 Kas. 391, are decisive of the questions presented by the appellant. We repeat, what we have heretofore de
The judgment of the court below must therefore be affirmed.
[*Since this opinion was filed, counsel for The State has called the reporter’s attention to the record and to the brief as filed, to show that it was not supposed or claimed by him, nor on the part of The Slate, that the defendant could be again tried, even if the supreme court should hold that the trial court erred in ruling out the testimony. Counsel refers to §§283 and 288 of the criminal code, and suggests that the record in this case was prepared expressly by the counsel on both sides, and by the trial court, to present to the supreme court for review the three questions reserved, (see statement of •case, in the text, supra,) “ that such questions might be settled, but without a thought that, where there was a verdict and judgment of acquittal, the defendant could be again tried for the same offense.” The two sections referred to by counsel are as follows:
“Sec. 283. Appeals to the supreme court may be taken by the state in the following cases, and no other: First, Upon a judgment for the defendant, on quashing or setting aside an indictment or information. Second, Upon an order of the court arresting the judgment. Third, Upon a question reserved by the stale.
“Sec. 288. In case of an appeal from a question reserved on the part of the state, it is not necessary for the clerk of the court below to certify, in the transcript, any part of the proceedings and record, except the bill of exceptions and the judgment of acquittal.” (Gen. Stat. pp.865, 866.)
Query: Is not the fault in the statute? and did not the supreme court decide the only question properly before it? In other words, does not the statute, in the third clause of §283, undertake to do what the legislature had no power to do—that is, to give the state an appeal where the defendant has upon trial been found not guilty, and acquitted? Counsel for the state says he does not contend that Crosby could be tried again—he does not deny “that the verdict and judgment are conclusive.” What question, then— conceding (what it would seem will scarcely be controverted) that the trial court erred in its second and third rulings—had the supreme court before them to decide? The judgment of acquittal being conclusive, (once in jeopardy, §10 of bill of rights,) the defendant, being acquitted, being discharged without day, has no further interest in the case, nor in any question raised and passed upon by the trial court, whether such court decided correctly, or not, or whether the state “reserves” such question, or not. So far as the defendant is concerned, the judgment being final as to him, there is nothing from which the state can appeal. The defendant is no longer a party to any controverted question. He has nothing to settle, by an appeal by the state—no right or interest to-be affected by any settlement or decision so made. He is not a necessary or proper party, either as appellee, or as defendant in error. How then can “reserved questions” in such cases be brought here as upon “ appeal by the state?” So much of the- statute as attempts to authorize such appeal, must be void. The supposed “appeal” is only an ear parte proceeding, (original in its nature,) by which the state in effect presents to the supreme court, not an action, or cause—not a controversy between the state and another party—but original questions. Calling this proceeding an “appeal,” does not make it so. And as the supreme court, with respect to such questions, has, not original, but appellate jurisdiction only, (const., art. 3, § 3,) it would seem that it has no power or authority to review questions presented as were the questions in this case, where the record shows a final judgment of acquittal. Of course, appeals may be taken by the-state under the first and second clauses of said §283.—Reporter.]