State v. Lee

49 Kan. 570

Opinion

The opinion of the court was delivered by

Johnston, J.:

John Lee was prosecuted upon a charge of having driven certain southern cattle into the state which were capable of. communicating Texas fever, during the month of November, 1891, in violation of the General Statutes of 1889. At the trial a jury was waived, and the cause submitted upon an agreed statement of facts, upon which the court found that the defendant was not guilty of the offense charged against him, and accordingly rendered a judgment of acquittal. The state attempts to appeal, and it was agreed that the entire law of the case might be made a question reserved for the purposes of an appeal for the state. t

The defendant calls our attention to the precedents holding that the acquittal and discharge of the defendant terminates the prosecution, and that an appeal by the state cannot be entertained. It is settled that the finding of not guilty and the judgment of acquittal protects the defendant from any further trial and effectually terminates the prosecution. 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. 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. Moon, 45 id. 145.)

All the Justices concurring.