State v. Bruhn

529 P.2d 1261, 96 Idaho 389, 1974 Ida. LEXIS 466

Opinion

PER CURIAM.

The state has appealed from an order of the trial court entered at the close of its case in chief, the effect of which order was to grant the defendant’s motions for judgments of acquittal on the charges of kidnapping in the second degree and rape.

This attempted appeal is not within the purview of I.C. § 19-2804,¹ and hence, this appeal is dismissed. State v. Berlin, 95 Idaho 225, 506 P.2d 122 (1973); State v. Grady, 31 Idaho 272, 170 P. 85 (1918).

1 . I.C. § 19-2804. “Appeal by the state.— An appeal may be taken by the state:

1. From a judgment for the defendant on a demurrer to the Indictment or information.

2. From an order, entered before the trial of a person charged with a criminal offense, which directs the return of seized property, suppresses evidence, or otherwise denies the prosecution the use of evidence at trial if the prosecuting attorney and the attorney general certify to the judge who granted such motion that the appeal is taken in good faith, and is not taken for the purpose of delay, and that the evidence suppressed constitutes a necessary portion of the state’s case to prove the charge pending against the defendant. No such property or evidence shall be returned until the expiration of ten (10) days from and after the date on which the order was entered. An appeal by the state pursuant to this subsection shall stay the return of such property or evidence and shall constitute a bar to the prosecution of the case unless such order is reversed upon appeal. Appeals pursuant to this subsection shall be expedited by the Supreme Court and shall receive priority over all other criminal and civil appeals.

3. From an order granting a new trial.

4. From an order arresting judgment.

5. From an order made after judgment affecting the substantial rights of the prosecution.

6. From any ruling of the trial judge during the course of the trial on the receipt or rejection of testimony, and from any ruling of the trial judge on the giving or refusal to give instructions to the jury.”