¶1Opinion by
¶2The defendant in this case was charged with unlawfully permitting ninety head of cattle under his control to run at large, in Grant county, in violation of chapter 128 of the Laws of 1874, as adopted by the board of county commissioners.
¶3A trial was had before a justice of the peace and the defendant found guilty and fined in the sum of $50, and he appealed to the district court; at the April term, 1890, of the district court a jury was impaneled and sworn to try the defendant, when counsel objected to the introduction of any evidence, because the section of the statute under-which defendant was prosecuted was unconstitutional. The court, in the first instance, overruled this objection, and a number of witnesses were then called and testified in behalf of the state, and the state rested; the defendant, by his counsel, then asked the court to instruct the jury to find for the defendant, for the reason that the complaint did not charge a public offense, and that the evidence offered by the state failed to prove a crime against the defendant. Pending this motion, the state asked leave of the court to introduce other evidence, and in passing upon this application, the court held that § 2 of chapter 128 of the Laws of 1874 was unconstitutional, because it was in conflict with §§16 and 17 of art. 2 of the constitution, and thereupon ordered a judgment of acquittal to be entered for the defendant, and discharged the jury. The state excepted to the ruling of the court, and appealed.
¶4We must dispose of the case without passing upon the validity of the law under which the defendant was prosecuted, for the reason that the state cannot appeal, where the defendant has been tried and acquitted; this court has no authority to set aside such a judgment. The decisions of this court in The State v. Carmichael, 3 Kas. 102, City of Olathe v. Adams, *14715 id. 391, and The State v. Crosby, 17 id. 396, are decisive of this case.
¶5We recommend the appeal be dismissed.
¶6By the Court: It is so ordered.