55 Kan. 133 | Kan. | 1895
The opinion of the court was delivered by
Logan Hiekerson was placed on trial upon the charge of assault with intent to kill. After the jury was impaneled, the county attorney made an opening statement, and, among other things, told the jury that in committing the act the defendant was actuated by a “ frenzied delusion ” on account of what he understood had been said in disparagement of his wife, and that his conduct and the result showed that he was actuated by a “hallucination or imagination” which was not founded on any “reasonable hypothesis.” It was also stated that “the only motive that can be ascertained for the onslaught was the fact that he liad permitted himself to be worked up into this frenzied condition over a rumor absolutely without any ground at all.” After an opening statement for the defendant had been made, testimony in behalf of the state was introduced, when the defendant moved for his discharge' from prosecution, and also for a discharge of the jury, because the opening statement made by the county attorney, in connection with the evidence introduced in behalf of the state, entitled him to such discharge. After argument by counsel and consideration by the court, the motion was sustained, the jury was discharged, and the court ordered that the defendant be discharged from custody and from further prosecution in the case. Exceptions were'taken to the ruling of the court, and the state now attempts to appeal to this court.
From the foregoing it appears that the case has been
As the litigation on the merits is ended, and the defendant finally discharged, an appeal by the state does not lie, and hence it will be dismissed. {The State v. Moon, 45 Kas. 145 ; The State v. Lee, 49 id. 570. See, also, The State v. Carmichael, 3 Kas. 102 ; City of Olathe v. Adams, 15 id. 391; City of Oswego v. Belt, 16 id. 480 ; The State v. Crosby, 17 id. 396 ; The State v. Phillips, 33 id. 100; The State v. Smith, 49 id. 358.) Appeal dismissed.
