State v. Carmichael

3 Kan. 102

• Court: Supreme Court of Kansas
• Decided: January 15, 1865
• Status: Published

Opinion

By the Court,

Crozier, C. J.

The defendant was indicted in Atchison county under the 197th section of the Crimes Act for oppression and partiality in office as sheriff of said cormty. The indictment charged that he had in his hands for execution an order of sale issued from the District Court in a cause wherein Thomas A. Hartwell was plaintiff and Josiali Brawley, Administrator of Presley Montgomery, was defendant, and that the offense consisted in the manner in which the writ was excuted by him.

The defendant moved to quash the indictment, which motion was overruled.

The cause was submitted to a jury, when the State offered in evidence a judgment of the District Court of Atchison county, and an order of sale issued in pursuance thereof, purporting to have been rendered and issued in a cause wherein Thomas H. Hartwell was plaintiff and Josiah Brawley, Administrator of Presley Montgomery, and Emma Montgomery were defendants. The defendant objected on account of the variance and the objection was sustained. The jury returned a verdict of “ not guilty,” the defendant was discharged, and the State appealed.

Is this such a case as may be appealed to this court ?

Section 266 of the Code of Criminal Procedure, is as follows:

“ Section 266. Appeals to the Supreme Court may be taken by the territory (state) in the following cases, and no other. First: Upon a judgment for the defendant on quashing or setting aside an indictment. Second: Upon an order of the court arresting the judgment. Third: Ujion a question reserved by the territory (state).”

In this case the indictment was not quashed,or set aside; the judgment was not arrested, nor was any question reserved by the State. Hence it is not a case in which an appeal is allowed, and the appeal will be dismissed.

All the justices concurring.